United States v. Rogers

• Decision Date: 03 January 1975
• Docket Number: Crim. No. 74-165-N.
• Citation: 388 F. Supp. 298
• Parties: UNITED STATES of America v. Claude Vinson ROGERS.
• Court: U.S. District Court — Eastern District of Virginia

388 F. Supp. 298

UNITED STATES of America v. Claude Vinson ROGERS.

Crim. No. 74-165-N.

United States District Court, E. D. Virginia, Norfolk Division.

January 3, 1975.

J. Brian Donnelly, Asst. U. S. Atty., Norfolk, Va., for plaintiff.

Reid M. Spencer, Norfolk, Va., for defendant.

OPINION

KELLAM, Chief Judge.

The defendant was indicted on July 10, 1974, for conspiring to distribute cocaine, for possessing cocaine with the intent to distribute, and for distributing cocaine. 21 U.S.C. § 841 and § 846 (1972). The defendant has moved this court to suppress the introduction into evidence of certain materials seized from him in what he alleges was an illegal search of himself, and of his car, apartment and locker at his place of work.

In July of 1974, Rogers was a civilian employee of a civilian company doing work at the Power and Desalinization Plant located on the United States Naval Base at Guantanamo Bay, Cuba. This work was being performed pursuant to a contract with the Navy. On July 2, 1974, Rogers was at work at the Desalinization Plant. Between 2:00 p. m. and 2:30 p. m., Rogers was approached by Special Agents Hartman and Nichols of the Naval Investigative Service (hereinafter NIS). They asked Rogers to step outside and talk with them in the plant parking lot so as to avoid embarrassing Rogers in front of his fellow workers, and Rogers voluntarily complied. In the parking lot Rogers took from his pockets his billfold, pocket knife and another item, which he put onto the front seat of the NIS car.¹ He was thereafter patted down. The items which Rogers removed from his pockets were placed in a cloth and carried, with Rogers, with Rogers' consent, to the NIS office. He was given the Miranda warnings. The time was approximately 2:45 p. m.

Hartman asked Rogers for permission to conduct a search of his personal effects, his apartment, his car, and his locker at the plant. Rogers gave his consent orally and was then given a form to sign which stated this consent in print. Rogers objected to the language that allowed the NIS agents to remove any personal property or papers, and this phrase was crossed out substituting instead that Rogers gave permission to remove "evidence of narcotics drug marijuana use sale & possession." Rogers then signed the consent form. After Rogers signed the consent form, Hartman found a piece of paper in Rogers' wallet with some names and weights on it. When this was observed, a comment about it was made. Rogers orally revoked his permission to search any further. Hartman ceased his search of Rogers' wallet and the other items which Rogers had taken from his pockets. Rogers requested appointment of counsel.

Rogers was then taken to the office of Lieutenant Holz, a Navy lawyer in the Judge Advocate General Corps, who then gave advice and assistance to Rogers.² The time was approximately 3:30 p. m.

Rogers, Hartman, and other unnamed NIS agents proceeded to the office of the acting commanding officer, Commander Federico, to obtain a Command Authorization for Search and Seizure. Hartman presented a Request for Authority to Search, which detailed the reasons why Hartman thought a search was legally justified. It also appears that Hartman supplemented his written reasons with an oral presentation setting out the background of the investigation. This oral presentation was never recorded. The Command Authorization for Search and Seizure was issued by Commander Federico. NIS agents then proceeded to search Rogers' apartment, car and locker at the plant.

At 6:00 p. m. on July 2, Rogers was actually placed under arrest and was at that time so informed.

On July 3, Hartman presented a second Request for Authority to Search. The July 3 request did not state with elaborate detail the underlying reasons for the search — as the July 2 request had done — but briefly stated that items observed on the July 2 search were inadvertently not seized, and permission was sought to now enter Rogers' apartment to obtain them. Commander Federico signed a Command Authorization and a second search and seizure was conducted.

The Court is faced with two major issues. The first is by what authority the United States Navy may search the property of a civilian who resides on base and is performing work for the Navy. The second issue is whether the Navy conducted a legally valid search pursuant to the applicable laws regarding searches and seizures.

I

The initial issue before us is whether Rogers, as one serving on a military base, is susceptible to the same search and seizure process as military personnel, or whether he is entitled to the full protections of the Fourth Amendment. For the reasons given below we find that Rogers, as a civilian, retains those substantive rights guaranteed by the Fourth Amendment. However, the Court specifically finds that as long as the military respects the rights guaranteed by the Fourth Amendment's prohibition against unreasonable searches and seizures, the military need not be bound by all of the procedural formalities that are imposed upon civilian law enforcement agencies.

The United States Naval Base at Guantanamo Bay was obtained through a leasing agreement in 1903. By the lease, Cuba agreed that the United States should have complete control over criminal matters occurring within the confines of the base. It is clear to us that under the leasing agreement, United States law is to apply. Our conclusion is bolstered by the fact that the United States no longer diplomatically recognizes Cuba, thereby eliminating any recourse the Navy might have to look to the "host" country for enforcement of the criminal law.

Navy Regulations in effect in July, 1974 required base commanders to hold for civil authorities any person not subject to the Uniform Code of Military Justice (UCMJ) who was believed to be responsible for mere suspicious occurrences on the base. Navy Regulations, 1973, § 0713. Navy Regulations further charged the commanding officer with preventing the illegal importation of marijuana, narcotics, or other controlled substance onto the base. These regulations had the force and effect of law, Cafeteria Workers v. McElroy, 367 U.S. 886, 891, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), and, not being inconsistent with any constitutional provision, created a basis of authority upon which Commander Federico could act.

Counsel for defendant argue that it has been decided that a military-type search is invalid where the object of the search is a civilian. Saylor v. United States, 374 F.2d 894, 179 Ct.Cl. 151 (1967). In Saylor, a civilian employee in charge of booking entertainment at various military bases in Japan, was fired for misconduct. Much of the basis for the dismissal was evidence obtained from a military-type search of his on-base housing, his car, and his office. Saylor sued for reinstatement with back pay, and the Court of Claims had to consider the validity of the search. Briefly, the search, which would have been valid as to military personnel under the then existing military regulations, was a general search made in the course of an investigation. It was not a search based upon a finding of probable cause, and no oath or affirmation was given in connection with the execution of the "Authority to Search" document. There was no limitation of the items to be seized, nor was there any description of the items sought. Saylor v. United States, supra, at 895-896.

The Court of Claims, in deciding that this was not an instance in which the commanding officer had unlimited authority to order a search of the base, United States v. Grisby, 335 F.2d 652, 654-655 (4 Cir. 1964), held that as a civilian, Saylor retained his civilian rights to a search that was reasonable under the Fourth Amendment. Saylor was not subject to the provisions of the UCMJ or the Manual for Courts Martial. McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L. Ed.2d 282 (1960); Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279 (1961).

We disagree that Saylor is applicable in the case before us for two reasons. First, on the facts, we are not faced with nearly the outrageous conduct that confronted the Court of Claims in Saylor. In looking at defense exhibits A, B, C and D (especially C), the Court finds that the investigating agents supplied Commander Federico with extensive reasons justifying the search of Rogers' apartment, car and locker. The Request for Authorization to Search listed the items to be seized. Finally, looking outside of the exhibits, the testimony establishes that the search was not a general search, as in Saylor, where the Government investigators were merely on a "fishing expedition." In Rogers' case, Rogers had been the object of a Government investigation for quite some time, and the NIS agents intended the search as a culmination of their investigation. When they requested the search, they knew just what they were looking for and so stated in exhibit C, paragraph 4. Thus, absent the outrageous conduct apparent in Saylor, we do not feel that we should apply Saylor to invalidate, as a rule of law, a military-type search of a civilian employee.

A second reason we find Saylor inapplicable is that the military has greatly revised its procedure for conducting a search and seizure. The Manual for Courts Martial (1969 Rev.) requires probable cause to authorize a search, and paragraph 152 extensively defines probable cause. Paragraph 152 also sets out how to evaluate "tips" given by informants, and that "underlying circumstances" establishing reliability must be shown. Thus, the military-type search in Saylor was far different than the search in Rogers' case, and for that reason, also, we do not accept the defense counsel's suggestion that we apply the holding in Saylor to rule that military-type searches are per se invalid when performed upon the military's civilian employees.

However, this Court does not rule that the military may search its...