VI. THE RULINGS BY THE MILITARY TRIBUNAL CONFORM TO STANDARDS OF THE UNITED STATES SUPREME COURT, AND THUS THE COURT MARTIAL CONTAINED NO CONSTITUTIONAL ERROR.
First, with respect to the plaintiff's claim that Article 134 of the UCMJ is constitutionally invalid, plaintiff now concedes that this issue has been settled against him by the Supreme Court in Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974); and Sec. of the Navy v. Avrech, 418 U.S. 676, 94 S. Ct. 3039, 41 L. Ed. 2d 1033 (1974).
Second, plaintiff contends that the search herein was in violation of his fourth amendment rights. The government argues that the search was consented to by the plaintiff and was therefore valid. Plaintiff said that even though he did consent when asked by the officer-in-charge for permission to search, plaintiff consented only because he believed that the officers would have searched even if plaintiff had not consented. In effect, plaintiff is arguing that his consent was not voluntary and knowing, i.e. that his consent was "mere words."
Whether consent to a search is voluntary (thus making the search constitutionally valid) is a mixed question of law and fact "to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The circumstances of this consent are recounted by the plaintiff in its memorandum in support of summary judgment at page 5; defendant's statement of the circumstances is stated at page 1 of its memorandum in opposition to plaintiff's motion for summary judgment. The Court has carefully considered the plaintiff's testimony during court martial on this point.
The Court's judgment is that the totality of the circumstances indicates that the consent by plaintiff was voluntary, and that therefore the search was valid under the fourth amendment. Plaintiff's consent was unequivocal, and he admitted in the court-martial that he voluntarily consented and that he understood the consequences of giving consent.
The Court rejects plaintiff's argument that his subjective belief, that the officer-in-charge would search notwithstanding plaintiff's nonconsent, is legally significant. Plaintiff's consent would be "mere words" and thus of no legal effect only if his belief were a reasonable belief; that is, an objective standard must be applied to plaintiff's conduct. Any thought that plaintiff might have had that the officer-in-charge would not comply with the plaintiff's nonconsent (had he withheld consent), was an unreasonable belief. Plaintiff's conduct does not meet the objective standard, since the officer-in-charge said nothing to indicate that he was not going to comply with the plaintiff's desire if plaintiff had withheld his consent, and the officer apparently did not pressure the plaintiff to consent.
This Court finds that the court-martial "fully and fairly" tried the entire issue of whether the plaintiff consented to the search. The court-martial found against the plaintiff on that issue. Moreover, this Court's re-examination of the issue leads this Court to the same conclusion.
Finally, the government further argues that even if the search was not consented to, the officer had probable cause to believe that an infraction of the rules had occurred. Such probable cause would serve as an independent ground for finding the search constitutionally valid. In view of the Court's finding on the consent issue, an examination of this issue is unnecessary, since consent will fully support the search.
For these reasons, the government's motion for summary judgment must be granted. An order of even date will be entered in accordance with this opinion.
Charles R. Richey / Charles R. Richey United States District Judge
Date: May 15, 1975
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