United States v. Wenzel

COOK, Judge

(concurring in part and dissenting in part):

I agree that the arrests were proper. However, on the basis of my separate opinion in United States v. Ezell, 6 M.J. 307, 330 (C.M.A.1979), I disagree with the conclusion that the authorization to search was improper. Accordingly, I would affirm the decision of the United States Army Court of Military Review. My view of the service person’s rights under the Fourth Amendment is fully and, I believe, understandably explicated in my opinions on the subject. Anyone can conclude what he wishes from them, but no language in any opinion bears a resemblance to the text of the Chief Judge’s statement of my view.

As to the Chief Judge’s view of the issue, I am impelled to register my disagreement. He comments as follows:

If a specific person or area is to be searched, then let the process be that a warrant “shall issue, . . . upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” and obtained from a neutral and detached magistrate, a designated judge, or a magistrate legally trained. [Footnote omitted.]

This procedure is not required by the Chief Judge in the present case. However, he has said in his separate opinion in United States v. Ezell, supra at 330, that:

Henceforth, my resolution of these search and seizure issues on grounds of reasonableness will take into consideration the failure of the commander to refer his decision to search for review and action to a military judge or magistrate in those situations which the above analysis renders applicable. [Footnote omitted.]

He does not elaborate as to whether a failure to comply with the procedure will invoke the exclusionary rule.

Paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition), specifically sanctions searches authorized by commanding officers. The Chief Judge does not hold that this Manual provision is unconstitutional. Indeed, such a holding would be inconsistent with numerous decisions of this Court and several cases decided by the civilian courts as well.1 By what authority does he now postulate the prospect of a new rule? I fear that he embarks on a course that is inconsistent with existing law and beyond the Court’s power to change.

. Wallis v. O’Kier, 491 F.2d 1323 (10th Cir. 1974), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974); United States v. Grisby, 335 F.2d 652 (4th Cir. 1964); United States v. Head, 416 F.Supp. 840 (S.D.N.Y.1976), aff’d, 546 F.2d 6 (2d Cir. 1976).