United States v. Garcia

GREGORY, Judge:

Appellant was convicted, inter alia, of wrongful possession of 153 grams of marijuana, in violation of U.S. Navy Regulations and Article 92, 10 U.S.C. § 892, Uniform Code of Military Justice. The record of trial indicates that appellant had been a passenger in a vehicle which stopped at the main gate to Camp Pendleton, California. The sentry on duty at the gate apparently detected an odor of alcohol on the driver’s breath when he asked for a visitor’s pass and administered a “field sobriety test” which the driver passed. The sentry then requested consent from the driver to search the interior of the vehicle for “open containers”, and permission was granted. In the course of this search, the sentry came across a laundry bag with appellant’s initials on it on the floor in front of the rear seat. He observed a plastic bag protruding from a towel inside the laundry bag, which happened to be of net construction. The sentry could see a substance inside the plastic bag which he suspected to be marijuana. The sentry checked further and seized this plastic bag and several additional bags, which all proved to contain marijuana. After the marijuana was discovered, the sentry asked appellant if the laundry bag was his, without warning him pursuant to Article 31 of the Code, to which appellant replied affirmatively.

On appeal, appellant contends that the consent to search given by the driver would not extend to his laundry bag and *1091that the search of this laundry bag was illegal. Generally, a guest or passenger in a vehicle has no ground for objection to its search, and consequently the lawful owner or user of a vehicle may validly consent to a search of the vehicle despite the fact that the vehicle contains property belonging to a guest or passenger. There is some support, however, for the proposition that such consent would not extend to articles clearly not the property of the owner or user.1 As noted previously, the laundry bag in this case had appellant’s initials on it. It is not necessary that we resolve this particular issue in this instance, however, since we are convinced the marijuana discovered was within “plain view” of the sentry. There is no dispute as to the driver of the vehicle having given consent to search the interior of the vehicle. The sentry was therefore rightfully inside the vehicle when he observed the suspected marijuana inside the net laundry bag. Although the consent granted him was directed toward “open containers”, the sentry was not required to close his eyes to contraband directly in front of him. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Burnside, 15 U.S.C.M.A. 326, 35 C.M.R. 298 (1965); United States v. Kazmierczak, 16 U.S.C.M.A. 594, 37 C.M.R. 214 (1967).

Appellant has also alleged that the marijuana discovered in the course of the search of his laundry bag was the result of an unlawful interrogation. As we indicated earlier, the sentry secured an acknowledgement as to the ownership of the laundry bag without providing appellant any warning as to possible self-incrimination. The military judge correctly noted that he would not give any consideration to this question and answer; however, he refused to suppress the evidence concerning the actual discovery of the contraband. Appellant argues that the unwarned statement also infected the results of the search, relying on United States v. Peake, 45 C.M.R. 786 (N.C.M.R.1971). As noted by appellant Government counsel, Peake concerned a situation where the interrogation preceded the seizure of suspected contraband and is clearly distinguishable from the case of our appellant where the interrogation followed.

In summary, we believe the search and seizure in this case to have been completely proper. We have considered the well-reasoned views of Senior Judge Dunbar in his dissenting opinion. We are unable, however, to concur in his opinion that the test of reasonableness must be applied to a consent-type search. The Constitutional right to be secure against unreasonable searches may be waived. For this reason, a search which is conducted with the freely given consent of a person entitled to waive the immunity against unreasonable searches meets Fourth Amendment requirements. Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Paragraph 152, MCM, 1969 (Rev.), 4 Wharton’s Criminal Law and Procedure, § 1578. This is why the requirement is so stringent that it be conclusively established that such consent was freely and voluntarily given.

Accordingly, the findings of guilty and the sentence as approved on review below are affirmed.

Judge BAUM concurs.

. See People v. Stage, 7 Cal.App.3d 681, 86 Cal.Rptr. 701 (1972), where it was held that an automobile owner’s consent to the search of his car did not entitle officers to search a passenger’s jacket lying on the rear seat of the car, where the officers knew the jacket belonged to the passenger.