Ralph E. Saylor v. The United States , 374 F.2d 894 ( 1967 )

NICHOLS, Judge

(concurring).

Our commissioner started with the holding, with which I agree, that the Constitution did not protect the plaintiff against unreasonable, or any, search of his desk by his employer. The desk was owned by the employer and was in the office assigned to plaintiff by the employer on the employer’s premises.

Not much is said about the Cadillac car which was also searched. If it had been an official car, owned by the Government and assigned to plaintiff to facilitate performance of his duties, I do not think it would have been immune from even a “fishing expedition” search. But no doubt it was personal. I take judicial notice they do not normally assign official Cadillacs to persons in plaintiff’s grade. I agree that the Constitution protects personally owned Cadillacs against unreasonable search.

The search of plaintiff’s living quarters seems to be viewed as the gravest breach of his Constitutional rights. The court says they were to all intents his “private home.” Yet, like the desk and the hypothetical official car, it was owned by the employer, it was on the employer’s premises, and was assigned to the plaintiff to facilitate performance of his official duties. Moreover, it was located on a military post in a foreign country, guarded as such by United States troops. Now, we know every man’s home is his castle, be it a “company house,” a rented house, or even a hotel room. But can you have a castle in the sovereign’s castle? I would say you might if the sovereign let you do so, but his manifested intent to the contrary ought to be respected and would not rise to the dignity of a Constitutional deprivation.

The sovereign’s intent as published here was applicable only on the erroneous assumption that plaintiff was subject to military law, in which case it would have been clear he had no castle within the castle. With respect to plaintiff’s true status as we now know it, the sovereign’s intent is not at all clear and I see nothing defendant refers us to that establishes a decision by the military authority to exercise unlimited search rights in that compound, as to persons not subject to military law.

We are, I think, making new law whatever we do. I do not find the opinions that have been cited to us to be at all in point for the peculiar issue here involved. When the search was made on the post, in all those cases a person supposed subject to military law was involved, and Powell, supra, which will surely become a leading case, involved one not subject to military law, to be sure, but his quarters, which were searched, were not on any post. Our case ought not to be deemed “almost on all fours” with the Powell case, supra, as the Court of Appeals stated on reading our commissioner’s report, at 366 F.2d 640, and as the majority state herein. It differs in a very essential respect.

The record herein does not tell me enough about the nature of plaintiff’s tenure of his assigned quarters to show whether it was analogous to the desk and the hypothetical official car. I am sure the post commander believed he had the power to send his representative anywhere on the post, but there is no showing here that the persons who conducted the search, the “special agents,” did so on behalf of or under authority of the post commander. This in my view would be at least essential if their action were to be sustained, so far as the right to search would have to depend on inherent powers of the post commander. The level of command which generated the orders to the special agents is not shown to have had authority over the post and the agents, on the post, could have been mere invaders for anything Justice has told us. In the Best case, supra, discussed in the majority opinion, the chain of authority from the highest levels and the military regularity proved to have been observed were major factors in persuading the court that the military search of Best’s civilian apartment was lawful.

Our decision ought to be restricted to this case and not make any sweeping statements that might derogate from the power of the sovereign, if it so desired, to delegate full and plenary power to the commander of its castle to search all and every part of it at his election, without review or second guessing by anybody or tribunal whatever.

The Government in oral argument intimated that the powers of the commander of a United States military contingent in a foreign country are inherently those of the captain of a ship at sea or a plane in the air. I think they ought to be no less, but the Government brief is disappointing in not furnishing legal support for the idea or applying it to the case at hand. For example, would the Constitution or law allow the captain of a ship at sea to search a passenger’s stateroom without probable cause?

This case, the Powell case, supra, and others discussed in the majority opinion, are not going to make military commanders overseas happy with their lot. They do not mind if their powers are specifically curtailed. Then, the authority which imposed the curtailment is responsible if something is prevented from being done that needs doing. But, we judges tell them they must not authorize an unreasonable search, yet that no one can pronounce a formula of what is reasonable, so they will have to guess the reaction of a civilian court thousands of miles and many years away, out of all touch with the urgency of the situation. I, for one, would not blame them if they said this was another illustration of the irresistible urge driving civilian courts to meddle in business they do not understand.

The commissioner found that the papers legally seized from the desk were commingled with those illegally seized from the quarters and the car, so he could not tell which was which and therefore he had to regard the whole as illegally seized. I do not know whether that argument would be still valid if only the car search were deemed illegal.

The case troubles me but I am prepared to concur in the result on the basis of clearly unreasonable search and seizure with respect to the papers from the car, and with respect to the quarters, that no authority to search military quarters other than of persons subject to military law, was shown to have been delegated from the highest levels to those who made the search, nor was the search shown to have been predicated on inherent powers of the post commander, if such there be, and therefore the Government fails to justify the search in that ease too. Finding of Fact No. 24 is acceptable to me on that basis but, parenthetically, I am at a loss to understand why this is a finding of fact and not a ruling of law.