United States v. Abernathy

GLADIS, Judge:

Appellant was tried by a general court-martial military judge, sitting alone. Contrary to his pleas, appellant was convicted of one specification of selling military property without authority (two red toolboxes) and one specification of larceny of United States Government property (one gray toolbox), in violation of Articles 108 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 908, 921. He was sentbnced to a bad-conduct discharge, confinement at hard labor for 9 months, forfeiture of all pay, and reduction to pay grade E — 1. The convening authority approved the findings and sentence; however, by a later supplemental action, he remitted a portion of the confinement at hard labor.

The evidence presented by the prosecution at trial indicates that appellant sold the two red toolboxes to a Corporal (now Sergeant) Logan and had previously stated to Sergeant Logan that the two red toolboxes would be obtained from the warehouse aboard Camp Lejeune where appellant worked. Sergeant Logan, a military policeman, had provided information to the Naval Investigative Service concerning the forthcoming sale and had made the purchase with funds provided by the Naval Investigative Service. Sergeant Logan also provided information that other Government property was located at appellant’s quarters aboard Camp Lejeune. On the basis of this information, authorization to search appellant’s quarters for “items of stolen Government property and other items identified as contraband” was granted by the Chief of Staff for Marine Corps Base, Camp Lejeune. The gray toolbox was among the items seized from appellant’s quarters.

Appellant has assigned the following errors before this Court:

I. THE COMMAND AUTHORIZED SEARCH OF APPELLANT’S QUARTERS FAILED TO SATISFY THE REQUIREMENTS OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
II. APPELLANT’S ALLEGED INCRIMINATORY STATEMENT, MADE IN RESPONSE TO INTERROGATION BY AGENT MORGAN AFTER APPELLANT’S APPREHENSION AND WHILE HE WAS IN CUSTODY, WAS ERRONEOUSLY ADMITTED INTO EVIDENCE BECAUSE THE GOVERNMENT FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT, PRIOR TO MAKING THE STATEMENT, APPELLANT WAIVED HIS RIGHTS TO REMAIN SILENT AND TO COUNSEL AFFORDED HIM BY ARTICLE 31, U.C.M.J., 10 U.S.C. § 831, AND BY THE FIFTH AMENDMENT TO THE CONSTITUTION.
III. THERE IS NO COMPETENT EVIDENCE OF RECORD TO ESTABLISH THE VALUE OF THE GOVERNMENT PROPERTY ALLEGEDLY SOLD AND CONCEALED BY APPELLANT AS THAT FOUND BY THE MILITARY JUDGE.
IV. THE EVIDENCE OF RECORD IS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE GRAY TOOLBOX, THE SUBJECT OF THE LARCENY ALLEGED IN CHARGE III, WAS THE PROPERTY OF THE UNITED STATES.

We find merit in the third assignment of error and reject the others.

I

The appellant contends that the search of his residence was illegal because the information upon which the command authoriza*821tion for the search was based was not supported by oath or affirmation, the reliability of the informant was not sufficiently established, and the authorization was over-broad. These contentions lack merit.

A

The agent requesting authorization to search apparently did not apprise the officer authorizing the search that the informant had made sworn statements and his request was not made under oath. There is no requirement, however, that a command authorization to search be based on information supported by oath or affirmation. United States v. McCarthy, 1 M.J. 993 (N.C.M.R.1976).

B

The agent did apprise the officer authorizing the search that the informant was a military policeman. This was sufficient to satisfy the requirement of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Manual for Courts-Martial, United States, 1969 (Revised edition), para. 152, that the authority ordering the search be apprised of some of the underlying circumstances from which the individual requesting permission to search concluded the informant was credible or his information reliable. See United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

C

Construing the search authorization in light of the request for authorization to search, we do not find it to be overbroad. The request for authorization to search appellant’s residence and seize items of stolen U.S. Government property and other material which might be identified as contraband recited that appellant had admitted to the informant stealing and selling various items of Government property, that on the previous evening at his residence appellant had sold two toolboxes he had stolen from his place of duty to the informant, and that the informant had observed an additional quantity of toolboxes of the same description at the residence. The authorization to search appellant’s residence authorized seizure of items of stolen Government property and other items identified as contraband. In determining whether an authorization to search is overbroad resort may be had to the request. Cf. United States v. Carter, 16 U.S.C.M.A. 277, 284, 36 C.M.R. 433, 440 (1966); United States v. Hartsook, 15 U.S.C.M.A. 291, 35 C.M.R. 263 (1965). There is no room for a grudging or negative attitude by reviewing courts towards command authorizations. Requests must be tested and interpreted in a common sense and realistic fashion. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. See United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. 741. Examining the authorization in the light of the request, we construe the authorization to authorize only a search for the tool boxes observed by the informant and seizure of any contraband observed during the search for the tool boxes.1 The authorization was not overbroad and the seizure of the gray toolbox was legal.

II

After the search of his quarters, appellant was apprehended and taken to the Naval Investigative Service Office aboard Camp Lejeune where he made oral admissions concerning his larceny and wrongful sale of Government toolboxes. Appellant alleges that this evidence was erroneously admitted at trial because the Government failed to establish that he waived his right to remain silent and his right to counsel before making these admissions.

We are unable to concur in these contentions of appellant. The testimony of the interrogating agent (R.52 — 61, 63 — 65), *822appellant’s own testimony (R.lll-112), and appellant’s written acknowledgement of understanding (Prosecution Exhibit 11) clearly establish that appellant was completely advised of his rights and made a knowing and intelligent waiver of these rights prior to making any admissions.

III

Appellant was charged and convicted of wrongfully selling two red toolboxes of a total value of $45.62 and of larceny of a single gray toolbox of a value of $32.00. Trial counsel was allowed to establish the value of the toolboxes in question through the testimony of a Gunnery Sergeant Veeder, who was in charge of the warehouse where appellant worked and from which the property was allegedly taken. Gunnery Sergeant Veeder was allowed to state that the respective values were reflected on a microfiche price list he had previously examined. The microfiche price list was not introduced. Appellant contends, and the Government concedes, that the testimony of Gunnery Sergeant Veeder as to value was inadmissible hearsay and that the defense objection on this basis at trial should have been sustained. See Cleary, McCormick on Evidence § 247 (2d ed. 1972). Since there is no competent evidence as to the value of these toolboxes, we must modify the findings of guilty to reflect that the toolboxes are of some value. See Paragraph 200a(7), Manual for Courts-Martial, United States, 1969 (Revised edition); United States v. Smith, 11 U.S.C.M.A. 149, 28 C.M.R. 373 (1960).

IV

We find the evidence sufficient to prove beyond a reasonable doubt that the gray toolbox was the property of the United States as charged.

Accordingly, the findings of guilty as to Charge II and only so much of the specification thereunder are affirmed as finds that appellant did, at the time and place alleged, without proper authority sell two red toolboxes, of some value, military property of the United States. The findings of guilty as to Charge III and only so much of the specification thereunder are affirmed as finds that appellant did, at the time and place alleged, steal one gray, five-drawer toolbox, of some value, the property of the U.S. Government. Upon reassessment, only so -much of the sentence is affirmed as provides for a bad-conduct discharge, confinement at hard labor for months, forfeiture of $384.00 per month for 6 months, and reduction to pay grade E — 1.

Chief Judge CEDARBURG concurs.

. An agent executing a search warrant may lawfully seize contraband not described in the warrant which he observes. United States v. Old Dominion Warehouse Inc., 10 F.2d 736 (2 Cir. 1926), citing Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925). See Aday v. Superior Court, 55 Cal.2d 789, 13 Cal. Rptr. 415, 362 P.2d 47 (1961).