SEARCH AND SEIZURE § 1. Generally. § 3. Search Warrants. § 7. Propriety of Search or Seizure; Unreasonableness. § 1. Generally § 1.5. Evidence obtained by officers of other than federal government. A French police inspector conducting an investigation under the authority of letters rogatory issued by a French magistrate determined to interview the accused who was a suspect in illegal currency transactions. He got a CID agent to accompany him to the accused's station and the latter's commanding officer was notified of the contemplated investigation of the accused. The commanding officer summoned the accused to the orderly room and the accused was taken into custody by the agent. The accused was then searched by the agent and found to possess two five-dollar bills with identical numbers, so at least one was presumably counterfeit. The accused who had been assigned quarters at his station had elected to reside in the nearby French town. His automobile was on the post at the time and was searched. Thereafter, the accused, the CID agent, and the French inspector went to the accused's apartment in town, where the premises were searched. After the French inspector had completed his search of a writing kit, the CID agent noticed a slip of paper in the kit bearing the name "Andrew D. Binz," and instantly recalled having investigated a matter involving the forgery of traveler's checks belonging to a Lieutenant Binz. Upon further search, the agent found four additional sheets bearing the Lieutenant's name and he took the slips. At the trial for the forgery of these traveler's checks the prosecution introduced into evidence over objection the five slips of paper and the accused's pretrial confession to the alleged forgery. Held that: considering the fact that the enterprise was initiated by the French inspector and that the motive for its existence emanated wholly from the French police, with the CID agent's presence a no more than incidental element, the record is sufficient to sustain the trial court's determination that the search was not an American one. Completely consistent with this view is the agent's testimony that the French inspector had originally investigated the contents of the accused's writing box, and that thereafter the former, by chance, glimpsed a slip of paper containing a signature which appeared to be that of Lieutenant Binz. (Distinguishing U. S. v. Byars, 273 US 28, 71 L ed 520, 47 S Ct 248.) the federal government may use evidence obtained through an illegal search effected by state or by foreign police, unless federal agents participated to some recognizable extent therein. (Citing U. S. v. Haywood, 208 F2d 156 (CA 7th Cir); Johnson v. U. S., 207 F2d 314 (CA 5th Cir). Cf. U. S. v. Volante (No. 4382), 4 USCMA 689, 16 CMR 263.) In this regard, as the predicate for a finding that a particular search constituted an American enterprise, a somewhat higher degree of participation by federal officials must be required in an overseas area, than in one within the continental limits of the United States, inasmuch as it is desirable that American agents be present during an investigation by foreign police of an American military service member suspected of an offense to assure that the legitimate interests of the suspect are protected. the unqualified doctrine that an American warrant must constitute the foundation for a legal search can scarcely apply outside the United States, its territories and possessions-for no American court is available and empowered to issue warrants overseas. In light of the palpable overseas inapplicability of the usual requirement for a search warrant issued by a competent American court-and of Rule 41, Federal Rules of Criminal Procedure-federal courts have refused to invalidate such searches by reason of the want of such authority. In these circumstances, the test is simply one of reasonableness. (Citing Best v. U. S., 184 F2d 131 (CA 1st Cir), cert den 340 US 939, 95 L ed 677, 71 S Ct 480; Grewe v. France, 75 F Supp 433 (ED Wis); Richardson v. Zupp, 81 F Supp 809 (MD Pa), affd 174 F2d 829 (CA 3d Cir).) considering the unavailability of an American court from which a warrant might be secured, the existence of probable cause for the search stemming from information as to the accused supplied to the CID agent by French authorities, a reasonable belief that further tools or fruits of the accused's counterfeiting activities were located in his apartment, and the fact that the searchers were armed with valid French process permitting the search in the form of letters rogatory, the search by the CID agent, assuming the search was an American search, was not unreasonable, even though explicit consent to the search by the accused's commanding officer could have been sought without difficulty. (Citing U. S. v. Rabinowitz, 339 US 56, 94 L ed 653, 70 S Ct 430; U. S. v. Rhodes (No. 1809), 3 USCMA 73, 11 CMR 73; U. S. v. Doyle (No. 265), 1 USCMA 545, 4 CMR 137; ACM 4948, Whitler, 5 CMR 458.) The failure of the accused's commanding officer to indicate any objection to the search of the accused's quarters when he had been informed of the prospective search by the French inspector and the CID agent might be construed as an authorization. However, in view of the holding that the search was not unreasonable, it is not necessary to determine this point. -the slips of paper containing the name "Andrew D. Binz,” while not contraband, constituted "private papers" of the accused only in an extremely loose and undiscriminating sense of the term and could hardly have been adapted to a purpose other than one of forgery, hence they were subject to seizure, even though they were not the objects of the original search. (Citing Zap v. U. S., 328 US 624, 90 L ed 1477, 66 S Ct 1277; Harris v. U. S., 331 US 145, 91 L ed 1399, 67 S Ct 1098; U. S. v. Doyle, 1 USCMA 545, 4 CMR 137.) [Latimer, J., dissented, expressing the view that the search by the CID agent was illegal and not authorized. He noted that he could not charge the accused's commanding officer with authorizing the acts of the French inspector and the CID agent because he failed to object to their performing their duties under apparent authority of their office; that if the degree of participation by a United States agent is sufficient to support a finding that it is a federal venture to obtain evidence in the United States, he would make the same finding for the same acts overseas; and that he was of the opinion that the CID agent "participated" in the search upon the chance that something would be uncovered of official interest to him. He also expressed the view that the French letters rogatory, which authorized a certain French police official to carry out an investigation, take statements, and conduct all searches and seizures necessary for the purpose of determining the truth of a charge of swindle brought against one Di Fazio "and all concerned," but did not identify the accused in this particular case, describe the premises or the property to be searched, and left the time of expiration indefinite, did not meet the standards of our law with respect to search warrants. He concluded that when a person subject to the Uniform Code of Military Justice searches and seizes under the authority of a search warrant, he must possess a warrant which contains the information and has the specificity required by federal law. A search conducted pursuant to a warrant invalid by reason of failure to measure up to federal standards is not reasonable. (Citing U. S. v. Byars, 273 US 28, 71 L ed 520, 47 S Ct 248; Reeve v. Howe, 33 F Supp 619.)] United States v. De Leo (No. 4194) 5 USCMA 148, 17 CMR 148. [See 20 Am Jur, Evidence §§ 394 et seq., 47 Am Jur, Searches and Seizures $$ 52 et seq.] § 1.6. Evidence obtained by private individuals. See United States v. Volante, infra § 11.3. § 1.8. Disposition of property seized. Law enforcement agencies of the Air Force may not confiscate alcoholic beverages taken from military personnel by such agencies. pursuant to a lawful search and seizure. (Citing Op JAGN 1952/61, 1 Dig Ops VESSELS § 39.7. Cf. SPJGA 1944/7342. 24 Jul 1944. See also JAGA 1947/5735.) Op JAGAF 1954/9. 15 March 1954. § 3.1. Generally. § 3. Search Warrants Legality of search under authority of letters rogatory issued by French magistrate, see United States v. De Leo, supra § 1.5. § 7. Propriety of Search or Seizure; Unreasonableness § 7.1. Generally. Illegality of search not for purpose of obtaining the means used of effecting a crime, but merely for purpose of securing evidence, see ACM 9010, Elliott, SELF-INCRIM §7.1. "Slips" of paper as subject to seizure, though possibly "private papers," see United States v. De Leo, supra § 1.5. § 7.7. Search of vehicles. In view of a post commander's authority over the area encompassed by a military installation and his responsibility for the security of the installation, the broader rule of courts with respect to searches of automobiles without warrants, and the broader area of lawful searches in military as distinguished from civil federal practice, it is concluded that a post commander may, for probable cause, or other military justification, order a search of a private vehicle operated by a person not otherwise subject to military law, when entering or leaving the post, even though the operator of the vehicle does not consent to the search, no notice was posted or printed upon the visitor's pass to the effect that entry upon the post constituted consent to a search of the vehicle, and the search is not incident to a lawful arrest or pursuant to a search warrant. (Citing JAGA 1953/8634, 12 Nov 1953; JAGA 1954/1574, 16 Feb 1954; SPJGA 1943/10203, 13 Jul 1943; JAG 680.2, 6 Jan 1942; JAGA 1953/1738, 20 Feb 1953, 3 Dig Ops, SEARCH & S § 11.1; JAGA 1952/3135, 16 Apr 1952, 2 Dig Ops, SEARCH & S § 11.5. Cf. JAGA 1954/2141, 2 Mar 1954, which involved a situation where there was no probable cause or other justification for the search.) JAGA 1954/8177. 30 September 1954. § 11. Persons or Property under Military Control or § 11.3. Permission or authorization to make search. isolated the occupants of the huts and then obtained express authority from the commanding officer does not affect the legality of the search since the possibility of other courses of action does not destroy the reasonableness or necessity of that course which was actually taken. (Citing U. S. v. Swanson (No. 2570), 3 USCMA 671, 14 CMR 89.) [Brosman, J., dissenting, stated that this case does not present a compelling need for prompt action so as to justify a noncommissioned officer in effecting a search not authorized by his superiors nor warranted by a custom of the service. The necessity in a situation like the present must be a distinctly compelling one.] Held also: A serious question of waiver is raised by the failure of the defense counsel to object to the testimony of the search, although he attempted to exclude the physical evidence obtained by the search. However, for the purposes of this case, it will be assumed that the objections actually made preserved the whole issue for appellate review. (See U. S. v. Dupree (No. 364), 1 USCMA 665, 5 CMR 93; U. S. v. Doyle (No. 265), 1 USCMA 545, 4 CMR 137.) [Brosman, J., dissenting, stated that he would specifically hold there was no waiver under the circumstances of this case. (Citing U. S. v. Dupree (No. 364), 1 USCMA 665, 5 CMR 93).] United States v. Davis (No. 4187), 4 USCMA 577, 16 CMR 151, reversing CM 366752, Davis, 13 CMR 480. Sergeant H., a post exchange steward, discovered an inventory shortage and reported the situation to the chief steward. He informed the latter that the accused was suspected and asked if he should go through the accused's locker. The chief steward merely informed Sergeant H. that he had "better do something about it or it will be your neck if you don't." Sergeant H., with two other noncommissioned officers, thereupon made a search of the accused's locker and found some cash and a quantity of merchandise, some of which bore exchange price tags. One of the enlisted men stated that they made the search because they "didn't want to be stuck with the shortage and have our pay checked." In admitting the testimony of the noncommissioned officers as to the results of their search, the law officer ruled that although the search was not legal, Sergeant H. and the others were acting only as private individuals and not in an official capacity. Held that: - when proper objection is made, evidence is inadmissible if obtained as a result of illegal search conducted by or on behalf of United States officers acting in the enforcement of its laws (Gambino v. U. S., 275 US 310, 72 L ed 293, 48 S Ct 137). On the other hand, evidence obtained as a result of such a search by a private person is admissible (Bordeaux v. McDowell, 256 US 465, 65 L ed 1048, 41 S Ct 574; Bacon v. U. S., 97 F 35 (CA8th Cir 1899), cert den 175 US 726, 44 L ed 339, 20 S Ct 1022). a search by a person duly assigned to law enforcement duty and made for the sole purpose of enforcing military law, is conducted by a person acting under the authority of the United States. (See U. S. v. Wilcher (No. 3900), 4 USCMA 215, 15 CMR |