OPINION
Among other things, the accused was convicted of the wrongful possession of marihuana. In a wide-ranging challenge, he contends, as he did at trial, that the search of his wall locker that resulted in discovery of the marihuana was illegal.
Patrice was a Labrador bitch. She had been trained by the Navy at San Diego, California, to detect the odor of marihuana, but she was not trained in obedience. On an unstated number of occasions, she apparently “happen[ed] to tear something up” under circumstances that made the Government subject to claims for damage. In November 1973, Patrice was turned over by her trainer to Detective Munden of the Special Police Force, Naval Air Station, Norfolk, Virginia. Munden worked a “lot of vacant barracks” with Patrice, and he believed her to be a “good” dog. In every instance that she “alerted,” thereby indicating the presence of marihuana, he had found some evidence of the substance.
As a result of reports that the aroma of marihuana had been detected in the barracks, Lieutenant Colonel Palmateer, Executive Officer of the Marine Barracks at the air station, requested a dog team to go through the barracks. Sergeant Brown and his dog “usually” responded to such requests but Brown’s dog was ill. Accordingly, on December 6, 1973, Detective Munden and Patrice responded to the colonel’s request; Sergeant Brown accompanied them to do the “paperwork.”
Lieutenant Colonel Palmateer was familiar with the work of marihuana detection dogs. He had witnessed a classroom demonstration by Virginia Beach Police Department dogs, and he had talked to dog handlers “as to how they train the dogs and the results.” Before Patrice started her tour of the barracks, the colonel spoke to Brown and Munden about her capabilities. Brown advised him that she was “a good dog”, “had a good track record”, and he believed she was “as good as” his dog, which Palmateer had seen at work several months earlier with “excellent results.” Munden also expressed his belief that Patrice was “a good dog.” There is no indication the colonel was informed that Patrice had been trained by the Navy. When Patrice started on the walk-through, Palmateer watched her for about 10 minutes. He saw her “become very alert, paw at . [a] locker, and carry on in that manner.” In his opinion, this behavior was “consistent” with that of the dogs he had seen in the classroom demonstration. Each of the lockers at which Patrice pawed was marked for later opening and examination, but the colonel was not present at that time, and, as far as appears from the record, he was not informed of the results of the examinations.
Just before the inspection, the occupants of the cubicles were escorted to an auditorium. At various times, individuals were called from the auditorium and escorted to their respective cubicles. There, they were informed that “the dog thought that there was something in there [in the locker]”; they were read their “rights” and were asked whether they would consent to a search of their “own free will.” A defense witness testified that he and another occupant of the barracks were called. Both consented to a search, and when the search was made nothing was found.
The regular procedure was not followed with the accused. Without impeachment or rebuttal, he testified that, at the direction of Sergeant Yennis, he opened his wall locker before the inspection began and then went to the auditorium. What occurred at his cubicle during the inspection was related by Detective Munden and Gunnery Sergeant McLaughlin; their testimony differed.
Munden indicated that, as the inspection party came down the middle of the squad bay, Patrice apparently picked up a scent. She circled a couple of times, straightened, went to the accused’s open locker, and “ran into it,” pulling out a bread wrapper. The bag fell on the floor, and he picked it up, looked into it, and saw a substance which “appeared” to be marihuana. He returned the bag to the locker, gave Patrice a suitable reward, and left the cubicle with her to continue the inspection. McLaughlin testified that Patrice was “turned loose” as the inspection party came into the squad bay. She “worked a few cubicles . . . then went into the cubicle” occupied by the accused. As he and Munden came up, he saw Patrice inside the accused’s locker. She backed out with a bag. He did not see Patrice jump about, and all he heard “was scratching as we got up into that area.” No tape was put on the locker door. The accused was brought to the cubicle, and when he refused their request to give consent to a search, Sergeant Brown went to see the colonel to obtain an authorization to search.
Only Colonel Palmateer testified as to the application for the authorization to search. He stated that Sergeant Brown had told him the accused’s locker “was one of those lockers the dog had gone to and it was one of the lockers they had marked.” Brown had further informed him that all the occupants of the marked lockers except the accused consented to a search. Palmateer admitted that Brown had not described how Patrice “behaved” at the time she went to the accused’s locker. He also conceded he had granted authority to search “[o]n . [the] basis alone” that Brown told him “this was a locker the dog had indicated that there was marihuana in.”
My brothers and I agree, for different reasons, that the decision of the United States Navy Court of Military Review must be reversed as to the findings of guilty of specification 2, Charge I, and the sentence. Their reasons are set out in their respective, separate opinions; mine follow.
As I pointed out in my dissent in United States v. Miller, 1 M.J. 367 (1976), the United States Supreme Court has held that the Government has “unfettered control” over property as to which it had a proprietary right. That right unquestionably extends to the common area-ways of military barracks, even those used as living quarters by military personnel. See United States v. Troy, 22 U.S.C.M.A. 195, 46 C.M.R. 195 (1973); United States v. Anderson, 175 U.S.App.D.C. 75, 533 F.2d 1210 (1976). I therefore see no wrong in the Government’s entry into the barracks and the walk-through in the common corridors, irrespective of whether the Government agents were intent upon investigation of a criminal matter or engaged in a health and welfare inspection. Not until the agents actually intruded into property as to which the accused possessed a reasonable expectation of privacy could there be any question as to their authority or as to the legal consequence of what they did. United States v. Anderson, supra.
In his separate opinion, the Chief Judge appears to view the proceedings in the barracks as an administrative or health and welfare inspection. On that basis, and consistent with earlier decisions of the Court such as United States v. Gebhart, 10 U.S.C.M.A. 606, 28 C.M.R. 172 (1959), I believe he would sustain the legality not only of the walk-through along the common ways, but also the agents’ entry into the accused’s locker area. However, because of the high potential for “abuses inherent” in the inspection system, he would, in any “criminal or quasi-criminal proceeding or as a basis for establishing probable cause,” forbid use of any evidence of wrongdoing discovered in the course of the inspection. I am constrained to disagree with this concept for at least two reasons.
First, the Chief Judge’s concept would eliminate the “plain view” doctrine. Under this doctrine, a government agent lawfully at a place may use his ordinary senses, and if these provide probable cause to believe that contraband or evidence of a crime is before him, he may properly seize the prohibited substance or the evidence. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Smeal, 23 U.S.C.M.A. 347, 49 C.M.R. 751 (1975). The rule propounded by the Chief Judge would, therefore, have the effect of immunizing an individual not only from criminal prosecution, but from any “quasi-criminal proceeding,” even though the evidence of his crime was come upon in the course of a lawful Government activity and in a way that was wholly accidental.
My second reason for disagreeing with the Chief Judge’s exclusionary formula is that I see it, not as curbing potential abuses of the inspection process and safeguarding the personal rights of members of the military community, which I believe the courts of the military system have thus far been able to assure, United States v. Mossbauer, 20 U.S.C.M.A. 584, 44 C.M.R. 14 (1971); United States v. Lange, 15 U.S.C.M.A. 486, 35 C.M.R. 458 (1965), but rather as encouraging the flouting of law and regulations. Because there can be no criminal or quasi-criminal sanction, a prohibition of this kind is, in my opinion, more likely than not to produce, among other things, disdain for, and violation of, the laws and regulations prohibiting the possession and use of drugs. In other words, as the proposed rule removes the normal deterrent effect of penalties for criminal conduct, there is likely to be more such wrongdoing. With an increase in the quantity of wrongdoing, the frequency of inspections will necessarily increase. As a result, the great majority of
At this point, I am brought to Senior Judge Ferguson’s contention that “use of a dog, trained to ferret out the presence of contraband drugs” is a search within the Fourth Amendment, and constitutes “an intrusion into an area in which the appellant had a reasonable expectation of privacy.” Dogs have long been used in police work. They often accompany police officers on night patrol to assist in detection, through sound and scent, of would-be robbers, burglars, and other criminals lurking in the dark or moving in stealth. I have not read, and have not heard, that because the patrol dog is endowed by nature with qualities of hearing and smell that appear to be superi- or to those of humans, his mere use, on a lawful patrol, is violative of the Fourth Amendment. That question, however, has arisen in regard to the use of dogs whose sensitive sense of smell has been trained to detect the characteristic odors of certain drugs.
Senior Judge Ferguson condemns the use of such a specially trained dog by extending the prohibition against the use of electronic equipment to overhear a conversation that was propounded by the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). At the same time, Senior Judge Ferguson acknowledges that many courts have held, correctly I believe, that not all artificial aids to human senses are forbidden to the police; and, among the permissible devices are such sight improvers as binoculars, flashlights, magnetometers, breathilizers, camera lenses, and, I would suppose, ordinary prescription glasses.
Although the issue may have been concluded for this Court in United States v. Unrue, 22 U.S.C.M.A. 466, 470, 47 C.M.R. 556, 560 (1973), for present purposes I need not postulate a standard by which to differentiate between those man-made devices that augment human senses beyond the limits attainable by a particular individual but do not come within the Katz condemnation, and those devices that do. In my opinion, Katz does not condemn utilization by Government agents of the special sense quality of other living things. On this basis, I reach the same result the Court reached in Unrue, namely, that use of a dog trained to use his natural sense of smell to detect special odors does not transform otherwise lawful Government conduct into an illegal search.
Whether the liberty of an individual should be subject to forfeit on the basis of the behavior of a dog has been the subject of divided judicial opinion.1 Professor Wig-more has observed that “most Courts” have held admissible, evidence that tracking by a trained “dog has . . . [led to] the accused.” 1 Wigmore, Evidence § 177(2) (3rd ed. 1940). This Court2 and the United States Court of Appeals for the Second Circuit3 have held that evidence of the behavior of a dog, consistent with his training and demonstrated ability to detect the presence of marihuana, can provide a basis for a conclusion that marihuana is probably present at a place indicated by it. For purposes of this appeal, I assume, without deciding, that the evidence of Patrice’s previous training and of her work with Detective Munden was sufficient to support an inference that her behavior immediately before she left the aisle of the squad bay to enter the accused’s cubicle4 demonstrated
Authorization to search must be predicated upon evidence before the issuing officer. United States v. Vasquez, 22 U.S.C.M.A. 492, 47 C.M.R. 793 (1973); United States v. Clifford, 19 U.S.C.M.A. 391, 393, 41 C.M.R. 391, 393 (1970). Munden’s observation of Patrice’s behavior before she entered the accused’s cubicle, which was consistent with her training and experience on detection of the presence of marihuana, was not related to Colonel Palmateer. Instead, Brown informed the colonel only that Patrice had “gone to” the accused’s locker. He said nothing about Patrice’s circling before she alerted and nothing about her conduct at accused’s locker that would allow the colonel to conclude that her behavior was consistent with the manner in which she had “carried on” during the period he had watched her work. Moreover, Colonel Palmateer had never known the results of the alerts he had seen; he did not, therefore, personally know of Patrice’s capabilities. True, he had been informed at the beginning of the inspection that Patrice had a “good track record,” but he was not informed at the application for the authorization to search of later events that materially affected the representation, and he was specifically misadvised as to an important circumstance of Patrice’s encounter with the accused’s locker. Patrice had alerted at two other lockers, but a search of them had produced no evidence of the presence of marihuana.5 As to the misinformation, Brown’s statement leaves no room to doubt that he was representing that when Patrice went to the accused’s locker, it was closed.
What effect an open locker had on Patrice’s behavior is not clear from the record. For all the record suggests, her response to the accused’s open locker might have been due to her lack of obedience training rather than to her marihuana detection training. Munden’s testimony as to the Government’s apparent willingness to take responsibility for damage caused by Patrice indicates there were occasions when her lack of obedience training led to intrusions unconnected with her detection response. The fact that Munden opened and examined the bag pulled out of the accused’s locker by Patrice suggests that he was, himself, uncertain as to the significance of her action and felt impelled to check on it. I conclude, therefore, both from the standpoint of the insufficiency of the evidence of probable cause available to Colonel Palmateer and that of the materiality of the matters not presented to him, or misstated, the authorization to search was unwarranted. United States v. Sam, 22 U.S.C.M.A. 124, 127, 46 C.M.R. 124, 127 (1973); Analysis, 16 Crim.L.Rep. 2311 (1975).
As noted earlier, for the reasons indicated in the separate opinions, the decision of the United States Navy Court of Military Review is set aside as to the findings of guilty of specification 2, Charge I, and the sentence. The specification is ordered dismissed, and the record of trial is returned to the Judge Advocate General of the Navy for submission to the Court of Military Review for reassessment of the sentence on the basis of the remaining findings of guilty.
1.
Annot., 18 A.L.R.3d 1221 (1968).
2.
United States v. Unrue, 22 U.S.C.M.A. 466, 47 C.M.R. 556 (1973).
3.
United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975).
4.
I express no opinion as to the validity of the immediate entry of Patrice and the inspection team into the accused’s cubicle. I need not consider whether, in the circumstances, Detective Munden could properly open the bread bag and examine its contents.
5.
Possibly, these alerts occurred after the incident with the accused; but, as the Government has the burden of demonstrating the sufficiency of the evidence to justify issuance of the authorization to search, the state of the record requires that I consider the alternative states in the text. United States v. Berry, 6 U.S.C.M.A. 609, 613, 20 C.M.R. 325, 329 (1956).