United States v. Miller

• Citation: 261 F. Supp. 442
• Decision Date: 15 December 1966
• Docket Number: Cr. A. No. 1788.
• Parties: UNITED STATES of America, Plaintiff, v. Michael Curtis MILLER, Defendant.
• Court: U.S. District Court — District of Delaware

261 F. Supp. 442

UNITED STATES of America, Plaintiff, v. Michael Curtis MILLER, Defendant.

Cr. A. No. 1788.

United States District Court D. Delaware.

December 15, 1966.

Alexander Greenfeld, U. S. Atty., and L. Vincent Ramunno, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

N. Maxson Terry, Jr., of Terry & Terry, Dover, Del., for defendant.

OPINION

CALEB M. WRIGHT, Chief Judge.

This is a criminal prosecution for violation of the Dyer Act, 18 U.S.C. § 2312 (1948). The defendant moves to suppress certain evidence he alleges was procured in violation of his constitutional rights. The defendant further moves to dismiss the information on the ground that it is based on evidence obtained in violation of his constitutional rights.

At 11:45 a. m. on June 14, 1966 the defendant, Airman Third Class Michael Curtis Miller, was apprehended in possession of a stolen 1966 Ford Mustang automobile.¹ The arrest was made by an Air Policeman on the Dover Air Force Base.

After a cursory search at the scene of the arrest, the defendant was taken to the Base Air Police headquarters for "administrative processing." Shortly thereafter, the Air Police took him to the Office of Special Investigations (OSI) for questioning. Upon his arrival at OSI headquarters the defendant was "strip searched." That is to say: his clothes were removed; their contents were confiscated; and the defendant's body was examined for weapons. Following the search the defendant was permitted to reclothe himself in his own attire, but certain of his possessions were not returned to him. The strip search was pursuant to the directives of the OSI manual, "Investigative Responsibility, Techniques and Procedures" (hereinafter OSI Manual). It was standard procedure in cases of this nature.

"Prior to interrogating a subject or suspect who has been taken into custody by police authority in connection with a crime of a serious nature, particularly one involving personal violence, the agent will first conduct a thorough and careful search of the person and confiscate any weapons he might possess. Such a search will be conducted even though the subject or suspect might previously have been searched for weapons by the Air Police." ¶ 2-1-24.

Among the items not returned to the defendant were a set of car keys. These keys are one of the items whose suppression is sought.

Close questioning of the defendant about the theft of the Mustang disclosed significant similarities between that theft and the unexplained disappearance in February, 1966 of a vehicle belonging to a Major Fender.² The similar pattern of the two thefts, when coupled with the defendant's unexplained possession of the set of car keys uncovered in the strip search, aroused the suspicions of the OSI investigator. He began to focus his questions on the theft of the Fender vehicle. The interrogation culminated in the preparation and signing of a statement inculpating the defendant in the theft of the Fender vehicle. At no time during the interrogation was the defendant notified of his right to have court-appointed counsel present during the interrogation or his right to remain silent.³

The statement to the OSI investigator was signed shortly after 5:00 p. m., and the defendant was then examined by Special Agent Pearthree of the Federal Bureau of Investigation. Agent Pear-three notified the defendant of his right to have counsel present, and of his right to remain silent. However, Agent Pear-three did not advise the defendant that counsel would be provided for him should he so elect, and that such counsel's presence at the interrogation could be demanded as of right. At the conclusion of the interview with Agent Pearthree the defendant signed a second inculpatory statement.

On June 15th, the day following his arrest, the defendant was taken before a United States Commissioner. When told that, being unable to afford counsel, he had the right to have counsel provided for him, the defendant immediately requested the assistance of such counsel. Prosecution by indictment was waived and the defendant was arraigned on July 19th for the interstate transportation of the stolen Fender vehicle.

Defendant now petitions this court for the suppression of certain evidence. Specifically, he contends that the two statements which were taken from him are inadmissible since his interrogators neglected to inform him of his right to have court-appointed counsel present during the interrogations. Defendant further seeks the suppression of the car keys, contending that they were seized in violation of his rights under the Fourth Amendment. Defendant's motion is made under Rule 41(e), Federal Rules of Criminal Procedure. Finally, the defendant seeks the dismissal of the information lodged against him on the grounds that it rests upon evidence seized in violation of the Fourth and Fifth Amendments.

At the outset it must be observed that it is doubtful whether the Fourth and Fifth Amendments confer upon military personnel a protective cordon of the same dimensions as that conferred upon ordinary citizens.⁴ This is an unsettled area of constitutional law, but the cases unanimously support the proposition that military personnel lose some of their rights upon joining or being inducted into the Armed Forces. Certainly there is no right to trial by jury, indictment by grand jury, and other traditional accoutrements of the common law criminal process. Apparently, the double jeopardy provisions of the Fifth Amendment are not applicable to military sentencing.⁵

"Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exercised no supervisory power over the courts which enforce it; the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers expressly entrusted that task to Congress." Burns v. Wilson, 346 U.S. 137 at 140, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953).

Yet, even in those cases containing expressions of deference to the paramount necessity in the Armed Forces for discipline, there are expressions born of a distrust of military justice. Shortly after the above passage Chief Justice Vinson tempered his earlier remarks:

"The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights." 346 U.S. at 142, 73 S.Ct. 1045, 1048.

The doctrine which exalts military efficiency above individual liberty is rooted in cases considering habeas corpus petitions which seek the petitioner's release from confinement imposed by courts martial. The present case presents a distinguishable factual situation. Here the person whose rights were allegedly invaded is a military man. The conduct complained of is that of military authorities and an FBI agent summoned by the military. But, here the military authorities have chosen to invoke the criminal jurisdiction of the civilian courts to sanction the defendant's misconduct. This case is altogether different from those in which military courts are meting out military justice to military personnel.

American criminal jurisprudence loathes summary proceedings. Recent cases bear witness to a trend which enshrines the constitutional rights of each individual. Traditionally, military justice has been tolerated because of the acknowledged deleterious effect which civilian interposition would have upon the efficient operation of the military. However, the tolerance accorded military justice is meager. Individual rights are zealously guarded against any expansion of military authority, or any attempted extension of military justice's summary procedures. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957).

The argument that the Fourth and Fifth Amendments have no application to the search of Miller's person and his interrogation where the criminal jurisdiction of the federal courts is being invoked against military personnel must be rejected. It represents an attempt to extend the sphere of military justice and seeks to make civilian authority the handmaiden of military discipline. When a member of the Armed Forces stands accused before a civilian tribunal, he is protected with his full constitutional armor. His posture is no different from that of any other defendant so far as the protection of the Constitution is concerned. His military status cannot shear him of his basic rights.

Recent Supreme Court decisions have expanded the protection of the Fifth Amendment.⁶ The most recent, the Miranda decision, requires that once the process of custodial interrogation has commenced, the defendant must be fully apprised of his constitutional rights. They are: the right to remain silent; the right to have counsel present during the interrogation; the right, if unable to afford counsel, to have court-appointed counsel present during the interrogation; and the knowledge that information elicited during the interrogation may be used against him in a court of law. Miranda mandates that, absent a clear communication of these rights, and an intelligent waiver of them, any statements which are the product of custodial interrogation must be suppressed. The standard to be used in evaluating the interrogation's compliance with the Constitution is strict and unyielding. Ritualistic formulas will not suffice. The presumption is that the defendant who has not been completely informed of his rights is ignorant of them.

"To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities and is subjected to questioning, the privilege against

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