Garrett v. Lehman, 84-5796
| Decision Date | 08 January 1985 |
| Docket Number | No. 84-5796,84-5796 |
| Citation | 751 F.2d 997 |
| Parties | Jeffrey W. GARRETT, Plaintiff-Appellant, v. John LEHMAN, Secretary of Navy; Robert Barrow, Commandant, U.S. Marine Corps; and W.H. Rice, Major General, Commanding Officer, U.S. Marine Corps Recruit Depot, San Diego, CA, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alice L. Cate, La Mesa, Cal., for plaintiff-appellant.
Warren P. Reese, Asst. U.S. Atty., San Diego, Cal., for defendants-appellees.
Appeal from the United States District Court for the Southern District of California.
Before FARRIS, ALARCON, and NORRIS, Circuit Judges.
Appellant, Jeffrey Garrett, a former Marine Corporal, was relieved of duty with an "other than honorable discharge" pursuant to the recommendation of the Military Administrative Discharge Board (hereinafter the Board). He appealed to the district court, which granted summary judgment in favor of appellees (hereinafter the Marines Corps). Garrett seeks reversal on several grounds. He also asks this court to extend the exclusionary rule to military administrative discharge proceedings. We decline to do so because the societal cost would be intolerable.
The procedural background of this case provides the framework for consideration of Garrett's contentions on appeal. Accordingly, we first summarize the proceedings before the Special-Court Martial, the United States Navy-Marine Corps Court of Military Review, the Administrative Discharge Board, and the district court. 1
On October 8, 1981, a Special Court-Martial found Garrett guilty of possession and the introduction of 386 grams of marijuana onto the Camp Pendleton Marine Corps Base in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. Sec. 892. Garrett was sentenced to pay reduction and separation with a bad conduct discharge.
The case against Garrett was based, in part, on evidence seized by a military police officer. 2 On July 16, 1981, a roving patrol The marijuana and the pipe were admitted into evidence at the Special Court-Martial.
observed four servicemen, including Garrett, engaged in discussion on the Camp Pendleton Base in an area known to be frequented by persons who use controlled substances. The officer became suspicious. He approached the group and ordered them to "freeze." Garrett was observed slipping what appeared to be a pipe into his pocket. He was commanded to remove and relinquish the item. At this time, the officer observed marijuana inside the pipe. The officer then requested and received Garrett's consent to search the interior of his camper. The search revealed sixteen plastic bags of marijuana
Garrett was interviewed by Naval Investigation Service (hereinafter NIS) Agent Garcia following his arrest. He was fully advised of his rights prior to questioning. Garrett admitted ownership of the contraband, and stated that he obtained the marijuana in Arizona for the purpose of later sale and use. It is unclear whether this statement was introduced at the Special Court-Martial. 3 While the record of the court-martial was being reviewed, Garrett was on "appellate leave."
Garrett raised three assignments of error on his appeal to the United States Navy-Marine Court of Military Review (hereinafter Review Court). Only one was addressed by the Review Court; i.e., the trial judge's alleged error in denying Garrett's motion to suppress evidence seized in violation of the fourth amendment. United States v. Garrett, 15 M.J. 601, 602 (NMCMR 1982).
The Review Court held that the military police officer lacked probable cause to seize Garrett's pipe. The Review Court concluded that the pipe was erroneously admitted at the court-martial and that the evidence obtained in Garrett's camper was equally inadmissible as the fruit of the initial fourth amendment violation. Id. at 604. The Review Court set aside the Special Court-Martial's finding of guilt, dismissed the charge, and set aside all specifications.
The Review Court limited its discussion to the reasonableness of the arrest and search. The Review Court stated: "Our resolution of that issue renders the remaining assignments of error moot." Id. at 602. The Review Court did not address the sufficiency of the evidence presented to show factual guilt nor the merits of the case.
On December 2, 1982, Garrett was ordered to return to active duty by his Commanding General. The purpose of this order was to give the Board jurisdiction to determine Garrett's fitness for future service in the Marine Corps. The Commanding General recommended that Garrett be discharged with a characterization of service as "other than honorable." On January 7, 1983, Garrett was notified of Board separation proceedings based on the charge of "misconduct; drug abuse" pursuant to Marine Corps Separation and Retirement Manual (hereinafter Manual ) Secs. 6210.1, 6210.5. The Board granted Garrett's request for a hearing.
At the hearing, the Marine's Recorder (Recorder) presented the Board a "basic package" of evidence. This package which Garrett's military and civilian counsel had received prior to the proceeding included: (1) lab reports authenticating the marijuana seized in the pipe and camper; (2) the Special Court-Martial order documenting the specifications tried; and (3) a signed NIS statement.
The Recorder also offered into evidence the full NIS report, and Agent Garcia's unsworn statement which summarized Garrett's admissions. Garrett's civilian counsel had not received this supplemental material prior to the Board proceedings. His military counsel, however, had reviewed the entire report in connection with the court-martial. Garrett made a timely objection to the admission of all evidence.
Garrett presented evidence of overall good conduct and job performance. He denied participation in the sale of contraband. During closing argument, the Recorder implied that Garrett had a record of misconduct as a juvenile. Garrett did not object to the statements made by the Recorder. 4
Following the hearing on the charge against Garrett, the Board recommended separation under "other than honorable" conditions. 5 On February 16, 1983, the Commanding General effected this recommendation.
Garrett initially requested that the district court issue a temporary restraining order and a preliminary injunction staying his administrative discharge. This relief was denied.
On May 31, 1983, Garrett filed an amended complaint requesting that the court declare the discharge void, vacate the judgment, and return him to active duty status. Thereafter, cross-motions for summary judgment were filed. On January 30, 1984, the district court granted the Marine Corps' motion for a summary judgment. Garrett's motion for a summary judgment was denied.
The district court filed a memorandum decision in which it held, inter alia, that the exclusionary rule was inapplicable to the Board proceeding.
Garrett presents the following issues for our review:
1. Should the exclusionary rule be extended to military administrative discharge proceedings?
2. Did the Court of Military Review review the merits of the issues raised by Garrett concerning the judgment of conviction by the Special Court-Martial, thereby precluding any discharge proceedings concerning the same acts?
3. Was the act of recalling Garrett to active duty for the purpose of initiating discharge proceedings an abuse of discretion?
4. Were hearsay statements erroneously admitted by the Board?
5. Were the Marine Recorder's statements at the Board proceeding made outside the scope of his authority?
6. Did the Board admit the NIS report in violation of applicable regulations?
Garrett contends that his separation under "other than honorable" conditions was invalid because the Board relied on evidence seized in violation of the fourth amendment. His argument for extension of the exclusionary rule to administrative discharge proceedings rests on two grounds: (1) The exclusionary rule applies to criminal and quasi-criminal proceedings. Garrett asserts that the Board proceedings were criminal or quasi-criminal because he was given a less than honorable discharge as a punishment for his past behavior; (2) The benefit which may be derived from extending the exclusionary rule to administrative discharge proceedings is the deterrence of unlawful military police conduct. We are told that such benefit outweighs the cost to society of proscribing the military's use of otherwise competent evidence in administrative discharge proceedings. 6
The Supreme Court has not extended the rule excluding evidence seized in violation of the fourth amendment to proceedings which are civil in nature. "In the complex and turbulent history of the [exclusionary] rule, the Court has never applied it to exclude evidence from a civil proceeding, federal or state." United States v. Janis, 428 U.S. 433, 447, 96 S.Ct. 3021, 3029, 49 L.Ed.2d 1046 reh'g denied, 429 U.S. 874, 97 S.Ct. 196, 50 L.Ed.2d 158 (1976) (emphasis added).
The exclusionary rule has been applied to federal criminal proceedings since 1914. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Garrett first contends that the administrative discharge proceedings were criminal in nature and therefore the Weeks rule is applicable to this matter.
In deciding whether the administrative discharge proceedings under review were criminal in nature, we are guided by the Supreme Court's decision in INS v. Lopez-Mendoza, --- U.S. ----, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). The threshhold inquiry in Lopez-Mendoza was whether a deportation...
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