United States v. Fimmano

FLETCHER, Chief Judge

(concurring):

I agree with the majority opinion of Judge Perry, but I write to address the other separate opinion herein, lest it mislead the reader in some important respects as to what the Court does today.

*203Judge Cook bemoans what he perceives as a departure herein from “two centuries of military practice and nearly three decades of decision in this Court to hold that an authorization to search must be based on information provided under an oath or affirmation.” I suggest, instead, that what this Court finally has done is to examine the dictates of the Constitution of the United States in this one regard and to measure it against the realities of the requirements of military life and the military mission, as opposed to certain talismanic myths, and to find military practice wanting.

The real point of departure between the majority herein and the dissent, apparent from a close reading of each opinion, is that the former begins with the proposition that the protections guaranteed all citizens of this Nation by the Constitution are not surrendered en masse upon the entry into the armed services. As we only recently had occasion to observe:1

It is now settled that the protections of the Fourth Amendment and, indeed, the entire Bill of Rights, are applicable to the men and women serving in the military services of the United States unless expressly or by necessary implication they are made inapplicable. Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); United States v. Jacoby, 11 U.S.C. M.A. 428, 29 C.M.R. 244 (1960). When a party urges that a different rule obtains in the military than in the civilian sector, the burden is upon that party to show the need for such a variation. Courtney v. Williams, 1 M.J. 267 (C.M.A.1976). Thus, in United States v. Priest, 21 U.S.C.M.A. 564, 45 C.M.R. 338 (1972), this Court held that the protections of the First Amendment are of different application in the military than within the civilian community. See also Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); United States v. Gray, 20 U.S.C.M.A. 63, 42 C.M.R. 255 (1970). And in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), the Supreme Court held that the protections of the Sixth Amendment do not apply at summary courts-martial because, in the view of the Court, summary courts-martial are not criminal but disciplinary proceedings which involve minor military offenses having no counterpart in the civilian community.
But neither this Court nor the United States Supreme Court has ever held that the protection of the Fourth Amendment does not apply to servicepersons, save in those instances where the concept of military necessity was held to warrant inapplicability. Indeed, the opposite is true.

Now, the dissent, I would anticipate, would protest this analysis of our fundamental difference, but I submit that a careful examination of that opinion is revealing. In doing so, I am struck that the theme of his opinion is to suggest reasons why an oath requirement is not necessary in the military, as opposed to discussing why it is not practicable. In other words, I suggest that his opinion sub silentio begins with the proposition that an oath is not extrinsically required and moves to inquiring whether it is desirable, whereas the majority begins with the proposition that the oath is extrinsically required2 and moves to inquiring whether, for some peculiarly military reason, it is unworkable. In short, Judge Cook’s opinion reverses what is the clear law of this Court in determining applicability to the military of constitutional protections — a case of the cart pulling the horse.

*204Apart from exposing the dissent’s subliminal radical deviation from the long-followed and well-established conceptual law of this Court and of the United States Supreme Court, I am moved to address briefly some specific portions of that separate opinion. First, Judge Cook contends that the “omission of an oath or affirmation [in the military] has been explicitly upheld as constitutional by federal civilian courts.” In support thereof, the Judge quotes a rather lengthy passage from 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). Thereafter, he cites three additional federal court cases, all out of various District Courts.3 Unfortunately, an actual reading of these cases discloses that they do not lend quite the strength of support for his position that Judge Cook would have his readers believe.

As is apparent from the quoted provision from Wallis, that opinion freely intermingles discussion of the requirement for an oath or affirmation with that of the requirement for a written warrant. In fact, the sentence emphasized by the dissent— which remarks on the impracticability or impossibility of requiring “the formalizing of the probable cause by the affixing of a seal to a paper writing” — quite obviously concerns the written warrant, while the sentence preceding it indicates that it ought to concern the oath or affirmation. As confused as the opinion and its analysis is, it is rather infirm authority.

The other three cases are of little more help. In United States v. Burrow, 396 F.Supp. 890 (D.Md.1975), the court engaged in an extensive discussion of the facts and circumstances of that case peculiar to the military and its mission, and concluded:

Although the Court in different circumstances might find, even on a military base, that a search based upon probable cause unsupported by oath or affirmation was unreasonable, it does find under the facts and circumstances of the present case, wherein exigent circumstances exist affecting the commanding officer’s interest in maintaining the security, order and discipline of his post that the search was properly and duly authorized and was reasonable within the meaning of the Fourth Amendment.

United States v. Burrow, supra at 903 (emphasis added).

Obviously, this holding is a far cry from a blanket dispensation of the military from following the “oath or affirmation” dictate of the Fourth Amendment.

In Lebron v. Secretary of the Air Force, 392 F.Supp. 219 (S.D.N.Y.1975), aff’d., 535 F.2d 1242 (2d Cir. 1975), cert, denied 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976), the court, responding to the appellant’s contention that the warrant at issue was invalid because it was based on the unsworn statements of a narcotics agent, simply stated:

Authority to search may be granted upon oral and unsworn statements of a special agent under military law.

Id. at 221 (footnote omitted). The opinion contained no analysis of the appellant’s contention, and by citing two of this Court’s earlier cases 4 as the sole authority for this bald conclusory statement, the court appeared simply to have deferred to this Court’s jurisprudence on the issue.

*205Finally, in United States v. Rogers, 388 F.Supp. 298 (E.D.Va.1975), the court did approve, after calling it an “extremely close question,”5 the finding of probable cause not based on an oath or affirmation. It did so by simply concluding, without any analysis, that under the facts of that case the procedure “was adequate to protect Rogers from an unreasonable search and seizure.” Id. at 304 (footnote omitted).

What is alarming about the three cases which do lend conclusionary support for Judge Cook’s position is that they do so without any analysis of whether a departure from the constitutional dictate is necessary. As mentioned earlier, it is the traditional law of this and of the Supreme Court that the constitutional protections afforded American citizens accompany those citizens into the armed services unless they are inapplicable expressly or by necessary implication. It is readily ascertainable that the Drafters exempted no class of citizens from the Fourth Amendment’s charge that the probable cause must be based on an oath or affirmation. Compare U.S.Const. Amend. IV with amend. V. And none of the cases — and the same may be said of the dissent — suggests anything about the realities of military life and of the military mission which makes it impracticable for a commanding officer, a military judge, or a military magistrate to utilize the ten or twenty seconds necessary to place the applicant for the authorization under oath.

The dissent’s citation of Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), and of Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), for the assertion that the Supreme Court has sanctioned “governmental action not allowable by the Constitution in the civil community” is of no help to the broader claim, for neither case stands for the proposition that military criminal procedure may deviate from the Constitution without a compelling military need therefor. Simply observing “It’s the military,” does not automatically vitiate precious constitutional rights. Indeed, in Parker, the Supreme Court used a standard for determining impermissible vagueness of a military statute which differed from the standard used for a similar inquiry of a civilian statute only “[bjecause of the factors differentiating military society from the civilian society.” Parker v. Levy, supra at 756, 94 S.Ct. at 2562. In the absence of such factors bearing on the “oath or affirmation” dictate of the Fourth Amendment, that prescription must be applied in the military with the full force with which it is applied in the civilian sector of our society. See United States v. Hessier, 7 M.J. 9 (C.M.A.1979); United States v. Ezell, 6 M.J. 307 (C.M.A.1979).

Finally, I must make some comment on Judge Cook’s treatment of that portion of the majority opinion wherein Fed.R.Crim.P. 41(c) is commended to the military services for their consideration. The Judge takes the majority to task for this suggestion, claiming, in essence, that it is unworkable. But he seems unaware of the provisions of Fed.R.Crim.P. 41(e)(2), for the general procedure therein outlined would seem to meet expediently the specific situations Judge Cook sets forth. Even then, Rule 41(c) applies only when obtaining a warrant is feasible; in an ultimate exigency situation implied by Judge Cook, not only would a writing not be obligatory, but the authorization itself would be unnecessary. In any event, it is not the ruling of the Court that Rule 41(c) does apply; rather, the majority simply commends its general procedures to the military departments for their consideration, consonant with the spirit of Article 36(a), UCMJ, 10 U.S.C. § 836(a), which “expresses a preference for federal procedure” in the absence of a contrary Manual provision. United States v. Slu-bowski, 7 M.J. 461, 463 (C.M.A.1979).

Additionally, the dissent’s contention that requiring the application for a search authorization and the authorization itself to be in writing is simply “a convenience for the judiciary” is far afield. As long as criminal defendants have the constitutional right to “go behind” the warrant application and the warrant itself to test the basis *206of the former and the scope of the latter, see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the writing is much more than a convenience for the judiciary. In fact, one of the cases cited by Judge Cook himself—United States v. Rogers, supra—expressly states to the contrary: “This [a written summation of the basis of the probable cause determination] is for the protection of the rights of the individual who is the subject of the search.” Id. at 303.

But, returning to the initial point of my separate opinion, these specific flaws in Judge Cook’s opinion pale in comparison with the drastic departure he takes from the accepted conceptual law concerning applicability to military members of constitutional protections. Judge Cook is chagrined because he perceives that the majority today “wipes out two centuries of military practice and nearly three decades of decision in this Court.” But all the majority does is follow the traditional analysis of applicability of constitutional rights and to reach a conclusion different from that previously espoused. What the dissenting judge does is far more serious, for his approach would constitute a fundamental change in the settled analytical technique of this Court and of the United States Supreme Court.

. United States v. Ezell, 6 M.J. 307, 313 (C.M.A.1979) (footnotes omitted). Accord, United States v. Hessler, 7 M.J. 9, 10 (C.M.A.1979); id. at 11 (Perry, J., dissenting). See Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).

. U.S.Const. Amend. IV, prescribes:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.)

The “warrant,” of course, has its military counterpart in a search “authorization.” Compare Rule 315(b)(1) with Rule 315(b)(2) of the proposed Military Rules of Evidence.

. Additionally, in footnote 3, Judge Cook cites two other federal cases as having “affirmed the procedure prescribed for searches set forth in the Manual for Courts-Martial”—United States v. Grisby, 335 F.2d 652 (4th Cir. 1964), and United States v. Head, 416 F.Supp. 840 (S.D.N.Y.1976), aff'd, 546 F.2d 6 (2d Cir. 1976). I notice, however, that neither makes any mention of the “oath or affirmation” requirement of the Fourth Amendment. Instead, Grisby is concerned entirely with a written warrant versus an oral authorization, and Head, in pertinent part, reflects on the fact that the authorization there was not based on a written application and on the fact that the authorization itself was not reduced to writing until after the search had been conducted. Obviously, then, unlike the present case, the Manual procedure “affirmed” in these cases does not bear on the black-letter requirements of the Fourth Amendment. See n. 2, supra.

. United States v. McFarland, 19 U.S.C.M.A. 356, 41 C.M.R. 356 (1970); United States v. Hartsook, 15 U.S.C.M.A. 291, 35 C.M.R. 263 (1965).

. United States v. Rogers, 388 F.Supp. 298, 304 (E.D.Va.1975).