United States v. Loukas

(dissenting):

I dissent from the majority opinion because, in my view, it violates three important principles. The first is that this Court should not rewrite well-established caselaw without careful consideration and ample justification. Second, as an appellate court we must take the testimony as it exists in the record, even though we cannot imagine why the witnesses testified as they did. Cf. United States v. Harris, 29 MJ 169 (CMA 1989). Finally, our Court may not interfere with the exercise of the factfinding powers granted to the Courts of Military Review by Congress in Article 66(c), Uniform Code of Military Justice, 10 USC § 866(c).

I

A

Article 31(b) of the Uniform Code, 10 USC 831(b), provides that

[n]o person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make by any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

Some of this language has been given a broad interpretation. For example, “ ‘[interrogation’ includes any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” Mil.R.Evid. 305(b)(2), Manual for Courts-Martial, United States, 1984; see also United States v. Seay, 1 MJ 201 (CMA 1975). The term “statement” includes such testimonial conduct as identifying the clothing items which belong to the suspect. See United States v. Williams, 10 USCMA 578, 28 CMR 144 (1959); United States v. Bennett, 7 USCMA 97, 21 CMR 223 (1956); United States v. Holmes, 6 USCMA 151, 19 CMR 277 (1955); United States v. Taylor, 5 USCMA 178, 17 CMR 178 (1954). Any “language, or its equivalent” may be a “statement” for purposes of Article 31(b). See United States v. Bennett, supra at 100, 21 CMR at 226. Furthermore, a warning must precede “any statement ‘regarding the offense of which [the servicemember] is accused or suspected’ quite apart from whether he feels that his truthful reply would serve to incriminate him.” United States v. Taylor, supra at 181, 17 CMR at 181.

In one respect, however, Article 31(b) has been construed more narrowly than its language might suggest. In United v. Gibson, 3 USCMA 746, 14 CMR 164 (1954), this Court considered admissibility of certain answers given by the accused to questions asked him by a fellow prisoner, Private First Class Ferguson. When Gibson had been placed in pretrial confinement, the Criminal Investigation Division (CID) had asked the provost sergeant “to assign another prisoner to watch. the accused ... and recommended that ‘a good reliable rat’ be selected for the purpose.” Subsequently, Gibson made “incriminating statements” to Ferguson “in the course of what on its face was an ordinary conversation between inmates of a stockade.” 3 USCMA at 750, 14 CMR at 168. Chief Judge Quinn concluded that the purposes of Article 31(b) required an “element of officiality” in the interrogation or request for a statement in order to trigger the warning requirement. Id. at 752, 14 CMR at 170. Judge Brosman, concurring, observed:

Each of my brothers has construed Article 31(b) to apply only if an element of officiality attaches to the interrogation of *392a person accused or suspected of a crime. In doing this, each — because of the purpose revealed in the legislative background of Article 31(b) — has chosen to read into that enactment something not clearly visible in its verbiage. Nowhere do I find an express statement in the Uniform Code that Article 31(b) deals only with persons subject to the Code who are engaged in an official investigation. Yet I have no sort of quarrel with the practice of examining legislative history to ascertain the purpose of Congress in enacting a statute. Nor is such a procedure alien to recognized canons of statutory construction.

Id. at 753, 14 CMR at 171 (footnote omitted).

Judge Latimer, concurring in the result, accused his fellow judges of “concurring] in a principle which results in a classic example of judicial legislation.” Id. at 757, 14 CMR at 175. In his view PFC Ferguson, the undercover agent, was free to “listen, observe, and report,” id. at 758, 14 CMR at 176, but was subject to the warning provision if he sought to obtain a confession or admission by questioning the accused.

In United States v. Souder, 11 USCMA 59, 28 CMR 283 (1959), two accordions had been stolen from a person in the naval service, who duly reported his loss to naval security personnel. They, in turn, advised local music stores to be on the lookout for the instruments. Souder and a fellow sail- or entered a music store in the area which was owned and operated by Lieutenant (jg) Gallagher. They had possession of one of the stolen accordions. Gallagher, a naval officer on active duty, observed that the accordion fit the description he had received from naval security personnel of one of the stolen instruments. During a conversation with the two sailors, Gallagher obtained incriminating admissions from them.

Judge Ferguson’s opinion for the Court concluded that Lieutenant Gallagher had been under a duty to advise both sailors of their rights under Article 31(b) before questioning them about the stolen musical instruments, since he was a person subject to the Code and suspected them of a crime. Chief Judge Quinn, concurring, stated:

The mere fact that Lieutenant Gallagher is a person subject to the Uniform Code of Military Justice is not, as the principal opinion implies, the whole of the matter in determining whether there has been a violation of Article 31. There are some situations to which Article 31 does not apply, even though the participants are persons subject to the Uniform Code. United States v. Gibson, 3 USCMA 746, 14 CMR 164; United States v. Dandaneau, 5 USCMA 462, 18 CMR 86.

11 USCMA at 61, 28 CMR at 285.

Judge Latimer, concurring in the result, concluded that Lieutenant Gallagher should have given a warning because an official criminal investigation had begun, and he was aiding military authorities in that investigation.

In United States v. Beck, 15 USCMA 333, 35 CMR 305 (1965), the Court considered a statement made by the accused to a military policeman, Grimsley, a personal friend who had no investigative duties. Grimsley had picked Beck up at a local civilian jail and, accompanied by another guard, had started to drive him back to their place of duty. On the way the accused started a “conversation ... between two friends.” Id. at 336, 35 CMR at 308.

Judge Ferguson, writing for a unanimous Court, pointed out:

This Court has long held that the preliminary warning under Code, supra, Article 31, is not necessary when it appears that the accused’s statement was either spontaneously made or was not “officially” obtained. Whether a warning under the Article is required, however, because of the “officiality” of the inquiry necessarily depends upon the facts of each case.

15 USCMA at 337, 35 CMR at 309 (citations omitted).

Thereafter, Judge Ferguson reviewed the cases and concluded:

*393From the foregoing, certain, if not always well-defined, principles regarding the need for the preliminary warning emerge. It is certain, for example, that a military investigator, or one acting as such, who suspects an accused of an offense and questions him in connection with such allegations, is expressly required to advise him of his rights. At the other end of the spectrum, it is equally clear that inquiries made by a close friend on a personal basis and without regard to any military relationship between him and the accused is not within the ambit of Article 31. Lying between these two poles are situations involving purported action only on behalf of the civil authorities, participation in interviews by persons not subject to the Code on a claimed private basis, perfunctory inquiries in the ordinary discharge of a nonmilitary type of responsibility, and the lack of any police responsibility on the part of the interrogator. The ultimate inquiry in every case is whether the individual, in line of duty, is acting on behalf of the service or is motivated solely by personal considerations when he seeks to question one whom he suspects of an offense. If the former is true, then the interrogation is clearly official and a preliminary warning is necessitated. If the latter situation is presented, then the warning is not required as a predicate for receipt of accused’s responses ____

Id. at 338, 35 CMR at 310 (citations omitted).

In other words, the Court in Beck recognized a continuum: At one extreme — where warnings clearly are required — is a situation in which a law-enforcement agent questions the accused as a suspect; at the other extreme — where warnings clearly are not required — is a situation in which a close friend is engaged in a personal conversation with the accused as a friend, without regard to any military relationship between the two of them. In the middle are all the other myriad situations in which, until now, the question to be answered has been, simply: Was a questioner acting in line of duty in an official capacity on behalf of the Service?

In accord with this analysis, the Court concluded in Beck that it could “not hold, as a matter of law, that the law officer should have excluded the accused’s conversations with Grimsley while he was in the latter’s custody.” On the other hand, the evidence also left “open” the possibility that “Grimsley, in talking with the accused, was acting ‘officially’ and thus was under a duty to advise him of his rights under Code, supra, Article 31.” Id. at 339, 35 CMR at 311.

In United States v. Seay, 1 MJ 201 (CMA 1975), the Court ruled on a statement made by the accused during an “informal” session with his troop commander, who was counseling him with regard to his obligations “to take care of his bad checks.” 1 MJ at 202. Chief Judge Fletcher’s lead opinion concluded that, “[irrespective of whether an Article 31 warning may have alarmed the appellant or obfuscated the purpose of the interview, a warning was still required since the commander acting in his official capacity sought to question the appellant whom he suspected of a criminal offense.” 1 MJ at 203 (footnote omitted). Judge Cook, concurring in the result, did not agree that an Article 31(b) warning was required but concluded that there had been an implied promise of confidentiality which rendered the statement inadmissible.

Senior Judge Ferguson, also concurring in the result, would have “applied] the literal language of Article 31,” 1 MJ at 205, and would have “remov[ed] from consideration such irrelevant factors as whether the questioner did or did not ask his questions in an official capacity.” 1 MJ at 206. In his view,

the reason for th[e] broad liberal proscription imposed by Congress is illustrated by the case at bar. In the military, unlike civilian society, the exact relationship at any given moment between the ordinary soldier and other service personnel in authority (i.e., commissioned

*394and noncommissioned officers) often is unclear. In the civilian experience, it is unlikely that anyone to whom Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),] might apply would question someone else other than in the former’s official capacity — that is, as a law enforcement officer. However, in the military a company commander may advise or question a member of his command for any of a number of different legitimate reasons, only one of which might relate to a criminal offense. Thus, to simplify matters, and in recognition of the superior/subordinate atmosphere inherent in the military [but] not present in the civilian structure, the requirement is broader in the former than in the latter.

1 MJ at 206 (footnote omitted).

Finally, in United States v. Duga, 10 MJ 206 (CMA 1981), this Court, almost a decade ago, provided additional guidance as to the purposes and scope of Article 31(b). Quoting at some length from United States v. Gibson, 3 USCMA at 752, 14 CMR at 170, we affirmed:

“Careful consideration of the history of the requirement of warning compels a conclusion that its purpose is to avoid impairment of the constitutional guarantee against compulsory self incrimination. Because of the effect of superior rank or official position upon one subject to military law, the mere asking of a question under some circumstances is the equivalent of a command. A person subjected to these pressures may rightly be regarded as deprived of his freedom to answer or to remain silent____”

10 MJ at 209 (emphasis added). Accordingly, we held:

Therefore, in light of Article 31(b)’s purpose and its legislative history, the Article applies only to situations in which, because of military rank, duty, or other similar relationship, there might be subtle pressure on a suspect to respond to an inquiry. United States v. Gibson, supra. Accordingly, in each case it is necessary to determine whether (1) a questioner subject to the Code was acting in an official capacity in his inquiry or only had a personal motivation; and (2) whether the person questioned perceived that the inquiry involved more than a casual conversation. United States v. Gibson, supra.

10 MJ at 210 (emphasis added).

Because Duga’s statement to a security policeman had occurred during a perceived casual conversation, we concluded that it was admissible. However, the test employed in Duga and in its predecessors has been whether the person asking the question or requesting a statement was acting in an official capacity — acting for the benefit of the armed services — or was only acting in a personal capacity.1 This standard is much broader than that which the present majority now seeks to substitute, whereunder a warning is required “only when questioning is done during an official law-enforcement investigation or disciplinary inquiry ”—whatever that phrase means. 29 MJ 385, 387 (Sullivan, J.) (emphasis added).

This test, which departs still further from the language of Article 31(b), has not been used heretofore in any majority opinion of this Court, so far as I am aware. It fails to recognize that, under our precedents, someone who has “disciplinary authority” over an accused or suspect, or who performs a “disciplinary function” with respect to that person, is required by Article 31(b) to give a warning even though he may not be involved in a “law-enforcement investigation or disciplinary inquiry.” Most importantly, it does not fully carry out the purpose of Article 31(b) as recognized in our earlier opinions — namely, to protect an accused against subtle pressures *395to answer resulting from the superior rank or official position of the questioner.

Professors Munster and Larkin, in their Military Evidence § 7.2b (2d ed.1978)—cited today by the majority for its proposed narrow standard—wrote:

On the other hand, even though a person subject to the Code may conduct an interrogation of or request a statement from a suspect, he does not come within the operation of Article 31(b) unless he is doing so officially and not in a purely private capacity.

Id. at 152 (emphasis added; footnote omitted). In an excellent footnote in this section, the authors set out at length and discuss contrasting situations in which this Court has held that Article 31(b) warnings were or were not required. Many in the former category involved situations where commanders or others with disciplinary authority over the accused had asked the questions “at issue. Id. at 153 n. 86. The pivotal distinguishing fact in those cases has not been whether the questioner was conducting an “official law-enforcement investigation or disciplinary inquiry.”

In enacting Article 31(b), Congress was sensitive to the fact that, in the military, some questions by some people under some circumstances are not so much requests, to be answered in the discretion of the person questioned, but commands to be answered without hesitation. Consistent with that sensitivity, this Court should not whittle away any further at the scope of Congress’ Article 31(b) warning requirement.

B

Even if there were merit in the majority’s new, more restrictive standard, this is not the case in which it should be announced or applied. The military judge did not rely on this more restrictive standard in denying the motion to suppress. Neither in the original decision nor in the decision en banc on reconsideration did any of the nine judges of the Court of Military Review adopt such a standard. The certified question, through which the case reached our Court, concerns the “public safety exception” and does not seek the redefining of the basic standard to be used in determining when Article 31(b) applies. Moreover, the case has not been briefed or orally argued in a way that would produce an informed consideration by this Court of the need to abandon its long line of precedent.

Finally, even under the restrictive standard espoused by the majority, one of the statements by Loukas — his statement to Captain Cottam, the aircraft commander— could not properly be admitted in evidence. That statement — which the principal opinion recognizes as inadmissible — was made after the plane had landed and had resulted in the accused’s “house arrest”; clearly it was obtained incident to an official “disciplinary inquiry.” Without any argument on the point, I hesitate to brush aside this inadmissible statement as merely “cumulative” evidence.2

II

The military judge took the position that an Article 31(b) warning to Loukas was not required because of the “public safety exception.” I have no doubt that—just as the requirement of a Miranda warning is subject to a “public safety exception,” see New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)—the warning requirement of Article 31(b) also is subject to a “public safety exception.” Cf. United States v. Jones, 26 MJ 353, 356-57 (CMA 1988); see United States v. Morris, 28 MJ 8 (CMA 1989). Likewise, I am sure that, under some circumstances, a question asked one member of an aircraft crew by *396another member might fall within the “public safety exception.” I conclude, however, that this exception should not be applied by our Court in this case.

Some of the government evidence indicates that it was important for the safety of the aircraft that information be obtained from Loukas about the drug he had used. On the other hand, as Judge Kastl points out in his concurring opinion, 28 MJ 620, 623, this testimony from Sergeant Dryer indicates that he did not believe the safety of the plane was at risk when he questioned Loukas:

Q. Were you afraid when you went to talk to [the accused] to ask these questions — that he was going to grab a chain or any other article in that aircraft?

A. No, sir.

* * * ^ * *

Q. Were you afraid at any time that he was going to attack or grab any article on the aircraft?

A. No, sir.

Q. Was the flight of that aircraft or the airplane itself at any time during this flight in danger because of the accused?

A. No, sir.

Our Court may not disregard this testimony, even though we may be of the opinion that any reasonable person on that aircraft should have felt mortal fear at the time Loukas was being asked, “Come on, what have you taken?” or “What are you on?” or words to that effect.

The military judge, an experienced Air Force officer, decided from the testimony he had heard that it was necessary for the plane’s safety that Sergeant Dryer determine forthwith what drug Loukas had used. In my opinion there was ample evidence to support the judge’s ruling that the accused’s statement to Sergeant Dryer fell within the “public safety exception.” 3

However, we must remember that, even though the military judge was authorized to find the facts relevant to admissibility of the accused’s statements, his power is not final. Instead, the military judge’s factual determinations — like his legal conclusions — are subject to review by the Court of Military Review, which also has factfinding powers. Art. 66(c), UCMJ, 10 USC § 866(c). Undoubtedly, the legislative intent was that the judges of the Court of Military Review would be experienced officers who would carefully review records of trial with detachment, free of command influence, and with an opportunity for reflection that does not exist at the trial level.

In this case, the Court of Military Review judges exercised their factfinding power. Six of the nine appellate military judges on that court decided that no threat to the safety of the aircraft was perceived at the time when Loukas was questioned. The aggregate military experience of these six Air Force officers is substantial; and that experience provided them an excellent basis for making a factual determination as to whether the safety of the aircraft had been endangered.

Of course, there was no evidence which justified applying the “public safety exception” to the accused’s statement to Captain Cottam, the aircraft commander, after the plane had landed. When Loukas made that statement, he presented no danger to the plane, which had landed; and there was no emergency need-to-know whether he had taken a drug.

Like the military judge and the three dissenters below, I might have evaluated the evidence differently from the majority on the Court of Military Review. However, they acted conscientiously and, so far as I can determine, without being under any misapprehension of law. Under these circumstances, our Court has no authority *397to interfere with the exercise of its fact-finding powers by the Court of Military Review. Indeed, to do so contravenes Article 66.

III

Therefore, I must vote to uphold the decision of the Court of Military Review, so I would answer the certified question in the negative.