United States v. Acosta

FLETCHER, Judge

(concurring):

I agree with the majority that Captain Stevens acted reasonably in this case. Upon smelling the activated marihuana, he was entitled as part of his command responsibility to immediately enter the appellant’s barracks room to prevent its continued activation. Such a limited governmental intrusion is justified by the military exigency presented to command. See United States v. Hessler, 7 M.J. 9, 10-11 (C.M.A.1979). In view of the information earlier provided to him, he could also lawfully arrest the appellant and search the area within his control. See generally United States v. Cordero, 11 M.J. 210 (C.M.A.1981). The marihuana for which the appellant was convicted was either within his area of control or in plain view.

Part IV of the majority’s opinion is dicta. In United States v. Hessler, supra at 11 (footnote omitted), I stated in similar circumstances:

Moreover, if a more extensive search of the barracks room is needed for law enforcement purposes to discover dormant marihuana and is justified by probable cause, a search authorization must be obtained through the most reasonable procedures available at the military installation which are authorized by military law.

I continue to subscribe to this position, particularly where the marihuana is no longer in an activated state, an arrest is accom*314plished, and the room can be easily secured prior to the more extensive search of the barracks room. This was the situation presented in appellant’s case. See Payton v. New York, 445 U.S. 573, 587-89 (majority) and 617-19, 100 S.Ct. 1371, 1380-81, and 1396-97, 63 L.Ed.2d 639 (White, J., dissenting) (1980). Once the exigency is dissipated, the right to search without a search authorization is also extinguished. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).