Martin v. Commonwealth

CLAYTON, Justice,

dissenting.

While recognizing the commendable legal analysis of the majority opinion, I dissent from the court’s decision because I believe that the majority’s literal interpretation of 10 U.S.C. § 808 is far too technical and basically incompatible with the spirit of law enforcement cooperation between military and civilian authorities that is intended by the statute. I would instead follow the lead taken by the Tenth Circuit Court of Appeals in Myers v. United States, 10th Cir., 415 F.2d 318 (1969) and Sablowski v. United States, 10th Cir., 403 F.2d 347 (1968) and that court’s more liberal construction of the law.

The Myers court, at 319, stated: “[I]t was neither unreasonable nor unlawful for the . State Police officer, when he observed two young men in military fatigues riding in a car ... to investigate and inquire whether they had the proper leave orders. When they were unable to produce them and when they volunteered the information that they were AWOL, the officer had the authority and the duty to arrest them.”

The circumstances here are similar. The police officer, in the process of determining if an individual was AWOL, was confronted with the appellant’s tacit admission that he was in fact absent without leave. The officer then placed the appellant under arrest for violating the law. The fact that the law being violated originated in the Uniform Code of Military Justice rather than in the Kentucky Penal Code seems inconsequential under the circumstances. To hold civilian authorities responsible for knowing and understanding the finer distinctions of military laws and codes would be burdensome to their basic function as law enforcement agents. Would not most of us consider the arresting officer patently derelict in his duties had he not taken the appellant into custody once becoming cognizant of his AWOL status?

Accordingly, I would find that appellant’s arrest was valid. Consequently, his subsequent confession to the murder of Sallie Bronaugh while in lawful custody was not a fruit of the poisonous tree and properly admissible at trial.

STEPHENSON and STERNBERG, JJ., join in this dissent.