Saylor v. United States

• Citation: 374 F.2d 894
• Decision Date: 17 March 1967
• Docket Number: No. 133-63.,133-63.
• Parties: Ralph E. SAYLOR v. The UNITED STATES.
• Court: U.S. Claims Court

374 F.2d 894 (1967)

Ralph E. SAYLOR v. The UNITED STATES.

No. 133-63.

United States Court of Claims.

March 17, 1967.

Carl L. Shipley, Washington, D. C., for plaintiff; Shipley, Akerman & Pickett, Washington, D. C., of counsel.

Ray Goddard, Washington, D. C., with whom was Asst. Atty. Gen. Barefoot Sanders, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

OPINION

DAVIS, Judge.^*

The plaintiff, a veteran entitled to the benefits of the Veterans' Preference Act of 1944, 58 Stat. 387, sues for back pay owing because of his alleged unlawful removal from his civil service position. After a tour of duty as an Army officer in Japan, he was released from the service and was employed in a civilian capacity by the Army in Japan. In 1955, he transferred to the Professional Entertainment Branch, Pacific Command, which was located at Camp Zama, Japan. In time, he was promoted to Director of the Branch at a grade 12 rating. Every two years or so, this activity and its employees rotated between the Army and the Air Force. Between December 2, 1957 and September 20, 1960 the Branch was part of the Air Force, reverting to the control of the Army on the latter date.

Because of a private complaint received by plaintiff's superiors, while he was with the Air Force or shortly thereafter, it was determined in the fall of 1960 that an investigation should be made of plaintiff's conduct of his position (especially his alleged favoring of the agents of certain entertainers). Since at that time the Air Force performed the investigation work for the entire Pacific Command, two Air Force special agents were assigned to plaintiff's case (although he was then under the Army). They filled in a mimeographed form, entitled "Authority to Search", which purportedly authorized them to search plaintiff's person, his automobiles, and his quarters, incident to their investigation into "Misconduct and/or Alleged Fraud", "and to seize any property pertinent to such investigation." The form was signed on November 30, 1960, by the Air Force colonel who was the Deputy Commander for Administration of the Air Force unit with cognizance of the investigation. Although the automobiles and the quarters were identified, there was no limitation of matters to be searched or seized, nor was there any description of the items sought. No sufficient probable cause was indicated to the colonel in any manner, and he did not make such a determination; there was no oath or affirmation given in connection with the execution of the document.¹

On the next day, December 1, 1960, the special agents presented themselves at the office of the plaintiff's superior, Army Lt. Col. Fleischer, advising him of their mission. The colonel introduced the agents to the plaintiff at 8:30 or 9 o'clock that morning. They remained with the plaintiff until about 6 o'clock in the evening. The agents identified themselves and told him that he was under investigation for misconduct and/or alleged fraud. They read to him the Fifth Amendment of the Constitution, as well as Article 31(b) of the Uniform Code of Military Justice,² and advised him of his right to counsel. There was practically no interrogation of the plaintiff by the agents, who were interested, rather, in whatever might be turned up in a search of the plaintiff's office, home and automobiles, which might shed any light on any kind of wrongdoing by him in connection with his job. He was asked to sign a written consent to a search of his desk and private papers located in the Government office where he worked, and he did sign a writing consenting to this part of the search. The agents spent most of the morning going through the office, looking through both official files and private papers of the plaintiff, from his desk and briefcase. They extracted papers which filled two or three boxes and placed the boxes in the trunk of a Government car which was assigned to their use. The agents, although not questioning the plaintiff, accompanied him to the men's room and also to lunch. When plaintiff asked whether he was under arrest, he was answered in the negative.

Saylor's quarters were located in a military compound called Washington Heights, near the center of Tokyo. When the search of the office was completed, the agents told him that they were going on a trip to Washington Heights, and he was told that it would be beneficial if he would accompany them. He did so. After stopping on the way at the Army Provost Marshal's office, the agents, with the plaintiff in the rear seat of the automobile, proceeded to his home, where he was told that they intended to search the home. He was shown the general "Authority to Search", and the search proceeded. He did not consent to the search of his home or of the automobiles.

The agents made a very thorough search of plaintiff's home, opening and examining the contents of bureau drawers, jewelry cases, closets, and suitcases. They took a pile of papers and documents, about three or four inches in bulk. They then went to the automobiles, parked at the home, and searched them, taking some additional documents. There was no segregation of the documents taken from the office, from the home, or from the automobiles. All were mixed together.

Entirely on the basis of the contents of letters and other documents seized by the special agents, the plaintiff was charged, in April 1961, with engaging in business and professional activities and interests which resulted in a conflict of interest with his official duties in connection with the Government's entertainment program in the Pacific area, as well as with violating an Army regulation forbidding the carrying on of commercial enterprise without prior official approval. His removal was proposed.

After replying to the charges contained in this advance notice of removal, the plaintiff received a determination that, upon consideration of the charges and his reply, it had been found that the charges were sustained and that he would be dismissed on a day certain. (The date of removal was ultimately extended until all appeal procedures had been exhausted.)

The plaintiff requested a grievance hearing. This was allowed and a 4-day hearing was conducted by a grievance committee. The plaintiff appeared personally and by counsel. At the commencement of the hearing, he was asked whether he had seen each letter excerpted in the letter of charges. He answered affirmatively. The chairman of the grievance committee then asked whether there was any objection to the use of such letters as exhibits, and there was no objection. Previously the chairman had read from certain civilian personnel regulations, dealing primarily with the function of the grievance committee, and the procedures to be followed during the hearing. In this connection, the chairman said, among other things, that "legal rules of evidence used in courts of law will not be observed", and that the hearing was not being held for the purpose of completely developing the case but rather "as a means for assembling additional information or testimony to supplement an existing record."

The grievance committee recommended that the removal action be sustained, and the Commanding General, United States Army, Japan, informed plaintiff that the testimony and evidence warranted his dismissal. The plaintiff then appealed to the Commander in Chief, United States Army, Pacific, and for the first time stated a detailed objection to the manner in which the search of his home and automobiles had been conducted, pointing out that all the evidence upon which his removal was sought stemmed from the unlawful "raid and impounding of the employee's personal papers." The Commander in Chief, United States Army, Pacific, denied the appeal, and further appeals were taken up through the Board of Appeals and Review of the Civil Service Commission.

If the evidence supporting the charges was lawfully seized and used in the removal proceedings, it was adequate to sustain the plaintiff's dismissal. There are, however, two problems in the case. The principal one is whether the taking and use of this evidence violated plaintiff's constitutional rights under the Fourth Amendment to be secure in his home and property against unreasonable searches and seizures.³ The procedural question is whether plaintiff has waived his privilege to present that constitutional issue to us.

There can be no doubt that, if this were a wholly civilian case arising in this country, the search and seizure here would be invalid and the dismissal unlawful. Almost every proscription of the Fourth Amendment would have been violated. The search and seizure were not connected with an arrest, and would therefore have required a warrant. If the standard-form "Authority to Search" (footnote 1, supra) be equated to a warrant, there would be several vital defects. The colonel who signed it, the Deputy Commander for Administration, was not an impartial magistrate or the equivalent of one. No showing of probable cause was made to him, and there was no oath or affirmation by the special agents or anyone else. The colonel made no finding of probable cause, and, so far as the record reveals, there was, in fact, no probable cause for a search. The evidence, either in the administrative proceedings or before this court, does not suggest that, prior to the search, anyone had reason to believe that any particular document, or any relevant documents at all, might be expected to be found in the plaintiff's quarters or automobiles. In addition, the "Authority to Search" was totally without limit and did not describe the things to be seized; it specifically permitted the seizure of "any property pertinent to the agents' investigation." This made it, in effect, a general warrant which has been forbidden in Anglo-American law for two centuries. Stanford v. State of Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); ...