United States v. Fimmano

COOK, Judge

(concurring in the result):

Today, the majority wipes out 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 cannot participate in that expungement. I cannot do so because, in my opinion, substantial differences between the military and civilian communities sanction a different application of the dictates of the Fourth Amendment.

Only six months ago, the Court unanimously reaffirmed the authority of a commander to authorize a search, notwithstanding he has “many functions that are properly classified as law enforcement in nature,” and, therefore, of a kind that would be disqualifying in the civilian community. United States v. Ezell, 6 M.J. 307, 317 (C.M.A.1979). The Court also unanimously agreed that the commander could take into account his own prior knowledge of facts relevant to the existence of probable cause. Id. at 320, 326, 331. As the principal opinion in Ezell suggested, such prior knowledge is integral to, and inseparable from, “the traditional command function of maintaining . . . [the] troops in a state of readiness to perform any mission required of them.” Id. at 320. This tradition has no counterpart in the civilian community where the magistrate would more likely than not be totally uninformed until he is provided with the information requisite to the issuance of a warrant. Cf. Furtado v. Bishop, 604 F.2d 80 (1st Cir. 1979). Further, the absence of an oath or affirmation in the civilian community would leave the applicant who lies to the magistrate unamenable to a criminal sanction,1 but the knowing declaration by a military person of a falsehood, in an official matter, has always constituted a military offense.2

Paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition), prescribes the military procedure for authorization of a search. No oath or affirmation is required. See United States v. Hood, 7 M.J. 128, 130 n. 2 (C.M.A.1979); United States v. McFarland, 19 U.S.C.M.A. 356, 41 C.M.R. 356 (1970); United States v. Penman, 16 U.S.C.M.A. 67, 36 C.M.R. 223 (1966); United States v. Martinez, 16 U.S.C.M.A. 40, 36 C.M.R. 196 (1966); United States v. Hartsook, 15 U.S.C.M.A. 291, 35 C.M.R. 263 (1965). The omission of an oath or affirmation has been explicitly upheld as constitutional by federal civilian courts. Wallis v. O'Kier, 491 F.2d 1323, 1324r-25 (10th Cir. 1974), cert, denied, 419 U.S. 901, *20795 S.Ct. 185, 42 L.Ed.2d 147 (1974), is typical. There, the Court of Appeals said:

In the exercise of the granted powers, the President promulgated the Manual for Courts-Martial. In this extensive Manual it is set forth that a search may be made pursuant to a warrant issued by the commanding officer of a military installation upon probable cause. Manual for Courts-Martial, It 152. The manual does not provide for the probable cause to be supported by oath or affirmation as does the Fourth Amendment to the Constitution. There seems to be no doubt but that an express provision of the military law that probable cause could be shown by oral statements would be valid. Any draftsman of a rule providing for probable cause as an incident to the issuance of a search warrant would be consciously aware of the Fourth Amendment provision. It is apparent that the omission of a reference to oath or affirmation was deliberate and intentional. There are reasons for such an inference. Although this was probably not such a case, many situations have existed and will exist in military commands where the formalizing of the probable cause by the affixing of a seal to a paper writing would be impracticable or impossible. Such a construction has been placed upon the provision by the military courts. The search made pursuant to a warrant issued, upon probable cause not supported by oath or affirmation, by the commanding officer of the military installation, where the search is to be made of property in the possession or under the control of a person in the command of the officer issuing the warrant, as in the case here present, is a valid search. [Emphasis added.]

Accord, United States v. Burrow, 396 F.Supp. 890 (D.Md.1975); Lebron v. Secretary of the Air Force, 392 F.Supp. 219, 221 (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); United States v. Rogers, 388 F.Supp. 298 (E.D.Va.1975).3

The civilian cases cited in Judge Perry’s opinion deal with the requirement of an oath in an application for a civilian warrant; not one is contrary to the cases I have listed, which deal expressly with a military authorization to search. No civilian case involving a military warrant that is contrary to our prior decisions is cited in the defense brief. I have carefully examined the concurring opinion written by Chief Judge Fletcher and have concluded that a reply in kind would not add anything to the body of military law. My own research has uncovered no such case contrary to those I have cited.

Time and again, the United States Supreme Court has remarked that particular governmental action not allowable by the Constitution in the civil community is nonetheless permissible in the armed services. Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547,41 L.Ed.2d 439 (1974). See also Curry v. Secretary of the Army, 194 U.S.App.D.C. 66, 71, 595 F.2d 873, 878 (D.C.Cir. 1979). In the Levy case, the Supreme Court upheld the constitutionality of articles of the Uniform Code proscribing conduct by members of the military that would not have passed muster for criminal statutes in the civilian community. 417 U.S. at 756, 94 S.Ct. 2547. I have no doubt that the military practice in issue is constitutional.

Having condemned the existing military rule, the majority “commend” to military authorities Fed.R.Crim.P. 41(c). Not only is that rule inapplicable to the military by its terms, but it is wholly unsuited to its circumstances. The rule requires writings, a written affidavit and a written transcript of any oral testimony taken in supplementation of an affidavit. No great imagina*208tion is required to perceive the countless occasions in the military when the applicant for the search will be at a place distant from that of the person empowered to authorize a search, with a radio or telephone the only feasible means of communications between them. Such occasions can be expected to arise, especially in time of war, at the same time that transportation is severely restricted or even nonexistent. This Court has indeed indicated a preference for a writing, but not as a prerequisite to the validity of the authority to search. Rather, the writing was regarded simply as a means to facilitate review of probable cause, in the event of a later attack on the legality of the authorization — a convenience for the judiciary, not a limitation upon it or the executive branch. See United States v. McFarland, supra at 358 n. 1, 41 C.M.R. at 358 n. 1, and United States v. Martinez, supra. I also disagree, therefore, with the majority’s indiscriminate commendation of Rule 41(c).

I would affirm the decision of the Court of Military Review on the merits.

. See 18 U.S.C. §§ 1621 and 1623; Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979).

. See Winthrop, Military Law and Precedents 713, 722, 732 (2d ed. 1920 Reprint); United States v. Gomes, 3 U.S.C.M.A. 232, 11 C.M.R. 232 (1953).

. Other cases have affirmed the procedure prescribed for searches set forth in the Manual for Courts-Martial. United States v. Grisby, 335 F.2d 652, 654-55 (4th Cir. 1964) (citing para. 152, Manual for Courts-Martial, United States, 1951); United States v. Head, 416 F.Supp. 840, 844 (S.D.N.Y.1976) (citing para. 152, Manual for Courts-Martial, United States, 1969 (Revised edition)), aff’d., 546 F.2d 6 (2d Cir. 1976).