United States v. Grisby, 9234.

• Decision Date: 14 August 1964
• Docket Number: No. 9234.,9234.
• Citation: 335 F.2d 652
• Parties: UNITED STATES of America, Appellee, v. Gene A. GRISBY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

335 F.2d 652 (1964)

UNITED STATES of America, Appellee, v. Gene A. GRISBY, Appellant.

No. 9234.

United States Court of Appeals Fourth Circuit.

Argued January 7, 1964.

Decided August 14, 1964.

John H. Wrighten, Charleston, S. C., for appellant.

Terrell L. Glenn, U. S. Atty., for appellee.

Before HAYNSWORTH and BOREMAN, Circuit Judges, and HUTCHESON, District Judge.

HAYNSWORTH, Circuit Judge:

Convicted of theft of property of the United States, the defendant has appealed. His contention is addressed to the denial of his motion to suppress the stolen property as evidence. The property was seized in a search of his living quarters on a military reservation. Since the search was conducted in accordance with military law under the direction of proper military authority, though without the sanction of a civilian search warrant, we find no violation of the defendant's Fourth Amendment rights.

On February 2, 1963, the defendant, Grisby, was a corporal in the Marine Corps. His duties were those of a military policeman at the Parris Island Marine Recruit Depot. With his wife and children, he occupied government-owned quarters on the base in an area known as Ribault Village.¹

During the early morning hours of February 2, 1963, someone broke into the Enlisted Men's Club on the base and removed ten cases of beer in cardboard cartons. On February 4th that crime was under investigation by the Provost Marshal, when investigators in that office received a report from one of Grisby's neighbors. Learning of the theft from the Enlisted Men's Club on the morning of February 2nd, she thought it significant that she had seen Grisby and another drive up to Grisby's house in an MP truck between 4:30 and 5:00 o'clock that morning and carry a number of boxes from the truck into Grisby's house. The investigators knew that Grisby had been in charge of the MP patrol on duty in the early morning of February 2nd. With the report from the neighbor, they questioned a private who had ridden "shotgun" with Grisby from four to six o'clock that morning. He confirmed the neighbor's story. He told the investigators of Grisby's picking up some cartons from some bushes on the base and of his helping Grisby carry the cartons into Grisby's quarters.

The Provost Marshal consulted the Chief of Staff, informing him of what his investigators had learned and requesting permission to search Grisby's quarters. The Chief of Staff, on behalf of the commanding General, ordered the search.

Grisby was summoned to the office of the Provost Marshal, and accompanied the investigators to his quarters. There he inquired if the investigators had a warrant, protesting their entry into his quarters without one. He was told that they did not have a warrant, but were acting under the authority of the Chief of Staff. The investigators entered Grisby's quarters. They found no cases of beer, but quantities of other articles belonging to the United States. They seized those articles.

Under a general agreement between the Defense Department and the Attorney General, Grisby was not tried by a Court Martial. He was turned over to civilian authorities. A Grand Jury returned an indictment charging him with the theft of the property, its receipt, or both.

After a pretrial hearing on Grisby's motion to suppress, the District Court denied the motion as it affected articles seized during the search of Grisby's quarters. Suppression was granted, however, of articles seized in a search of the trunk of Grisby's automobile. That search, removed in time and place from the search of the living quarters, was not within the authorization of the Chief of Staff, and the District Court found it was accomplished without Grisby's consent. The count charging felonious possession of the articles seized from the automobile was then nol prossed.

At the conclusion of a trial to the Court, without a jury, Grisby was convicted on one of the counts.

On this appeal, Grisby's sole point is the absence of a search warrant at the time his quarters were searched. He does not question the existence of probable cause to procure a warrant or procedural compliance with military law. He stands solely upon the contention that a District Court may not recognize as lawful any search of living quarters unless authorized by a valid warrant or incident to a lawful arrest.

If military law controls, there is no doubt about the validity of the search. Under ¶ 152, ch. XXVII, Manual for Courts-Martial, United States, 1951, promulgated by the President, with Congressional authorization, a search of property located within a military installation and occupied by persons subject to military law is valid when authorized by a commanding officer having jurisdiction over the place where the property is. The authorization of the Chief of Staff, acting for the commanding General, was in accordance with the Manual for Courts-Martial and validated, as a matter of military law, the search it approved.

The Judge Advocate General of the Army has frequently expressed the opinion that a commanding officer has an unqualified right to enter and search quarters of military personnel on the reservation he commands. This is said to be an attribute of his military authority and essential to the maintenance of order and discipline.² That is doubtless true in many contexts. The sergeant who inspects the barracks neither seeks nor obtains permission of the corporals and privates serving under him, and it would be a grave affront to military discipline if they undertook to exclude him.

Other searches of other property on military reservations also stand upon a very different footing from civilian property unrelated to military authority. The authority, for instance, of a military picket to search any automobile entering a military reservation is widely recognized and has been judicially upheld.³

We are not concerned here with probable cause for the search, however. We can assume that the purpose of the requirement of the Manual for Courts-Martial that search of living quarters, such as Grisby's, be authorized by the commanding officer of the installation is to be certain that he will pass upon...