DEPARTMENT OF THE ARMY PAMPHLET 27-1 0040 MILITARY LAW REVIEW VOL. 60 Articles PROBABLE CAUSE AND THE INFORMER PLAIN VIEW SEARCHES Comments ABSOLUTE LIABILITY UNDER THE FEDERAL TORT CLAIMS ACT SURVEILLANCE FROM THE SEAS Perspective THE EVOLVING LAWS OF ARMED CONFLICT ClVlLlANlZATlON OF MILITARY JUSTICE: GOOD OR BAD? Book Review HEADQUARTERS, DEPARTMENT OF THE ARMY SPRING 1973 MILITARY LAW REVIEW The Military Law Review provides a forum for those inter- ested in military law to share the product of their experience and research. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military law- yer. The Militurg Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. SUBMISSION OF ARTICLES : Articles, comments, recent development notes, and book reviews should be submitted in dup- licate, triple spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia 22901. Footnotes should be triple spaced and appear as a separate appendix at the end of the text. Citations should conform to the Uniform System of Citation (11th edition 1967), copyrighted by the Columbia, Harvard, and University of Penw sylvania Law Reviews and the Yale Law Journat. SUBSCRIPTIONS AND BACK ISSUES: Interested persons should contact the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402. Subscrip- tion price: $4.50 a year, $1.50 for single copies. Foreign subscrip- tion, $5.75 per year. REPRINT PERMISSION : Contact Editor, Military Law Re- view, The Judge Advocate General’s School, Charlottesville, Vir- ginia 22901. This Review may be cited as 60 MIL. L. REV. (number of page (1973) 1 i Pam 27-100-60 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-60 WASHINGTON, DC., Spring 2973 MILITARY LAW REVIEW - VOL. 60 Page Articles : Probable Cause and the.. Informer Major Francis A. Gilligan - - - - - - - - __ - - - - - - __. 1 Plain View Searches Captain John Rintamaki -.. - - - - - - - - - - - - - - - -. 25 Comments: Absolute Liability Under the Federal Tort Claims Act Major Fred K. Morrison - - - __ __ __ __ --____ ____ 53 Surveillance From the Seas Lieutenant Commander Robert E. Coyle - - - - - - - - 75 Perspective : The Evolving Laws of Armed Conflict Professor R. R. Baxter __ _..________________-99 Civilianization of Military Justice : Good or Bad? Professor Delmar Karlen .. - .- - -. - - - - - - - - - - - - - - 113 iii PROBABLE CAUSE AND THE INFORMER* By Major Francis A. Gilligan** Both lead articles in this issue examine the often litigated fourth amendment protection against unreasonable searches and seizures. Major Gilligan examines the evolving law of informant reliability giving particular emphasis to recent Supreme Court and Court of Military Appeals’ decisions. Captain Rintamaki surveys the “plain view” rule in military and civilian practice. I. INTRODUCTION Both the Supreme Court and the Court of Military Appeals have expressed a preference for searches authorized by a magis- trate. In the military a military judge or a commanding officer takes the place of the magistrate. Perspective in this area may be gained by recognizing three ways in which information as to criminal activity may reach the magistrate. One, in the rare case, he may personally observe criminal activity or its fruits. Two, he may personally confront the person who has seen the criminal activity or evidence of its fruits. In the civilian context this person will typically be a police officer. In the military a CID agent or merely a member of the commander’s unit may be the informer. Three, the person directly confronting the mag- istrate is basing his evidence about criminal activity or its fruits wholly or in part on information obtained from third parties who are not present before the magistrate. These parties may or may not be identified. Throughout the area two concerns are present: 1) is the evi- *The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any other governmental agency. **JAGC, US Army; Instructor, Criminal Law Division, TJAGSA. B.A., 1961, Alfred University; J.D.,1964 State University of New York at Buffalo; LL.M., 1970, The George Washington University. Member of the Bars of New York, the US Supreme Court, and the US Court of Military Appeals and admitted to practice before the Court of Appeals, State of New York. ‘See, e.g., Coolidge v. New Hampshire, 403 U.S. 443 (1971); Chime1 v. California, 395 U.S. 752, 763 (1969); Katz v. United States, 389 U.S. 347, 357 (1967). *See, e.g., United States v. Jeter, 21 U.S.C.M.A. 208, 44 C.M.R. 262 (1972); United States v. Sparks, 21 U.S.C.M.A. 134, 44 C.M.R. 158 (1971). 1 60 MILITARY LAW REVIEW dence given to the magistrate worthy of belief, and 2) if true, does it lead to the reasonable belief that items connected with criminal activity are “located in the place or on the person to be searched.” In the first situation (magistrate personally observ- ing) the magistrate merely relies on his own powers of ob- servation and deductive abilities. In the second situation, when the informant personally appears, his credibility is subject to the personal scrutiny of the magistrate. Reviewing courts usually defer to his assessment of the credibility of the inf~rmant.~In the third situation, where the magistrate is not personally facing the informant, hearsay is being used to establish probable cause. Where this method is relied upon, the Manual, drawing upon the Supreme Court opinion in Aguilar v. Texas,5 requires that the person requesting search authorization inform the commanding officer or the military judge of “some of the underlying circum- stances from which the informant concluded that the items in question were where he claimed they were and some of the under- lying circumstances from which the authority requesting permis- sion to search concluded that the informant, whose identity need not be disclosed, was credible or his information reliable.” This third area poses the greatest difficulty for magistrates and reviewing courts. Here the magistrate is not able to rely on direct confrontation of the informant. In some cases mere questions of convenience may keep the informant away from the magistrate. A policeman will typically find it easier to report a telephone a Para. 152, MANUAL FOR COURTS-MARTIAL, 1969 (REV. ED.) [hereinafter cited as MCM 1969 (REV.)]. Before the magistrate authorizes a search of a person or place, it is not necessary to show that the person to be apprehended or the person whose premise is to be searched committed a crime. Compare Article 7b, UNIFORM CODE OF MILITARY JUSTICE, WITH Para. 152, MCM, 1969 (REV.). See also United States v. Jeter, 21 U.S.C.M.A. 208, 44 C.M.R. 262 (1972) ; People v. Meaderds, 171 N.E. 2d 638 11. (1969). ‘See, e.g., United States v. Smallwood, - U.S.C.M.A. -, - C.M.R. - (1972) (The commanding officer “was also able to assess the informant’s credibility from his demeanor in direct confrontation.”) ; People v. Coleman, - Cal. App. 2d -, 104 Cal. Rptr. 363 (The question of reliability is not involved when the informant himself personally signs the affidavit and ap- pears before the magistrate. In such a case the magistrate determines re- liability as would be the case of the trier of fact in court.); People v. Wheatman, 29 N.Y. 2d 347, 327 N.Y.S. 2d 643 (1971). ’ 378 U.S. 108, 114 (1964). Aguilar’s conviction followed a search based on a warrant which recited only: Affiants have received reliable information from a credible person and do believe that heroin, marihuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law. Id at 109. The affidavit on which the warrant was based was held insufficient. Para. 152, MCM, 1969 (REV.). 2 INFORMANTS company official’s verification of a phone number than to bring the official himself before the judge. In other situations, however, information will be coming from persons closely associated with the criminal activity. They may provide their information out of fear, in a desire for revenge or in hopes of bettering their own questionable position with the police. This article will examine the use of the informant in the crimi- nal law. Of particular concern will be the way in which the two- prong test of the Manual can be satisfied. The two-pronged test adapted from Aguilar v. Texas,‘ may be broken down into its component parts. That portion providing that the magistrate be informed of “some of the underlying circumstances from which the informant concluded that the items in question were what he claimed they were”8 will be called the “basis of knowledge test.” The other portione will be called the “reliability test.” Two of the most significant cases in this area are SpinelE v. United States lo and Draper v. United States.ll In Spinelli, a search warrant for gambling paraphernalia was obtained on the basis of an affidavit which indicated: (1) the defendant had been observed on several occasions going to a certain apartment; (2) a check with the telephone company disclosed that there were two telephones in this apartment listed in the name of another person; (3) the defendant was “known to this affiant and to federal law enforcement agents and local law enforcement agents as a book- maker;” l2 and (4) the affiant had been “informed by a confiden- tial reliable informant that [the defendant] is operating a hand- book and accepting wagers and disseminating wagering informa- tion by the means of the telephones”lS located in the specified apartment.