SUMMARIZED
RECORD OF TRIAL
of
SCHNEIDER, JOHN J. SSN xxx-xx-xxxx PRIVATE E-2
3D ENLISTED STUDENT BATRY, STU BN, TSB,
US ARMY AIR DEFENSE SCHOOL, US ARMY FORT BLISS, TEXAS
By
SPECIAL COURT-MARTIAL
Convened by COMMANDING OFFICER
THE SCHOOL BRIGADE, UNITED STATES ARMY AIR DEFENSE SCHOOL
Tried at
FORT BLISS, TEXAS on 30 JANUARY, 1973
COPIES OF RECORD
RECEIPT FOR COPY OF RECORD
I hereby acknowledge receipt of a copy of the above-described record of trial, delivered
Signature of accused
Special court-martial order 14 February 1973
NUMBER 3
Before a special court-martial which convened at Fort Bliss, Texas, pursuant to Court-Martial Convening Order Number 5, this headquarters, dated 15 January 1973, was arraigned and tried:
Private E-2 John J. Schneider, xxx-xx-xxxx, US Army, 3rd Enlisted Student Battery, Student Battalion, The School Brigade, US Army Air Defense School, Fort Bliss Texas, did at El Paso, Texas, on or about 8 December 1972, wrongfully have in his possession some marihuana.
PLEAS
To the Specification and Charge: Withdrawn by Convening Authority after motion of the Defense to suppress evidence was granted.
39(a) Session of the trial held before Military Judge 30 January 1973.
BY ORDER OF COLONEL MONYHAN
OFFICIAL:
T. D. ONASCH
CPT. AGC
Adjutant
STEWART O. OLSON
CPT, ADA
Asst Adj
DISTRIBUTION:
3-AG-MPD
3-Provost Marshal
2-CO, 1st Enl Stu Btry
1-CO-Stu Bn
2-Records Mgmt Br, TSB
4-S2 File
1-CO, TSB
3-Indiv Conc
21-1 ea Btry Bulletin Bd
2-Enl Pers (201 Files)
SUMMARIZED RECORD OF TRIAL – ARTICLE 39 (a) SESSION
PROCEEDINGS OF A SPECIAL COURT-MARTIAL
In the case of John J. Schneider, xxx-xx-xxxx, Private E-2
The military judge called the Article 39(a) to order at Fort Bliss, Texas
COURT-MARTIAL CONVEGING ORDER 15 January 1973
NUMBER 5
A Special Court-Martial is hereby convened. It may proceed at this headquarters to try such persons as may properly be brought before it. The court will be constituted as follows:
MILITARY JUDGE
COL JAMES A. HAGAN, xxx-xx-xxxx, JAGC, US Army Judiciary, OTJAG, USA, WASH, DC, w/sta Fort Bliss, Texas, certified in accordance with Article 42(a)
MEMBERS
LTC CARL E. KINCHELOE, xxx-xx-xxxx, ADA, HQ, 5th Bn, 57th ADACOUNSEL
CPT CLAYBURN L. PEEPLES, xxx-xx-xxxx, JAGC, USAADCENFBBY ORDER OF COLONEL MONYHAN:
OFFICIAL:
STEWART O. OLSON
CPT, ADA
Asst Adj
DISTRIBUTION:
1-ea ndiv Conc
10-Legal Br, TSB
W. J. MONYHAN, Colonel was in command on the date of the reference for trial.
The defence had no motions to present except as indicated below:
Defense made a motion to dismiss the charge on the grounds of lack of jurisdiction for possession of marihuana off post. Prosecution argued to the contrary, citing US v. Beeker; the motion was denied.
Defense stated that it was anticipated that the Prosecution would seek to admit into evidence certain items which the Defense contended were obtained as a result of an illegal search, and objected to the admissibility of that evidence.
Prosecution called the following witnesses:
JAMES D. SMITH, Police patrolman, El Paso Police Department, El Paso, Texas
The witness was sworn and identified the accused by pointing to him and stating his name.
DIRECT EXAMINATION
On 8 December of last year, I was on duty as patrolman for the El Paso Police Department in the Northeast section of El Paso on the evening shift. I did on that date have occasion to see the accused at approximately 9:30 or 9:40 that evening; there was no one else with me. With the accused that evening were Terry Ramsey and a fellow named McEwin.
Earlier that night, I had been dispatched to a house on Flounder Street. When I arrived at this residence, 2 boys advised me that they had been harassed by 3 other boys driving in what they described as a bronze or brown colored vehicle. They had told the 2 boys they didn't like Mexicans and threatened to physically assault them; one threatened them with a bottle and the 2 boys ran away. After the incident they called the police. After they described the incident, and gave me a description of the vehicle with the three subjects, I advised them I would attempt to locate the vehicle.
When I left I proceeded west on Flounder Street, made a right turn north on Pickerel, and as I was passing by Dolphin Park I observed a vehicle coming the opposite way. From the lights of the patrol car and the street lights, I observed 3 people in the vehicle and it appeared to be a bronze vehicle; as I passed the vehicle, it stopped and then started up again and I decided this could be the same subjects that had harassed the boys. I turned on the red lights and stopped the vehicle at the intersection of Lindsey and McCombs; I called for a backup unit to assist me since I was working by myself. I got out of the patrol car and as I approached the driver’s side of the vehicle, the driver stepped out – this was McEwin. The door of the vehicle was open at this time and I asked for his operator’s license; it was at this time I smelled the burning marihuana odor. I would estimate that I have smelled burning marihuana 75 times. I used my flashlight to observe the other people in the vehicle, for my own safety and to see if there were any weapons; I always do this. At that time I observed 2 packages of cigarette papers on the floor board in front of the driver’s side and a plastic baggy in front of the right front passenger’s side. I also noticed the subject in the back seat appeared to be stuffing some object under the seat, and at this time ordered all subjects out of the vehicle. It was at this time that I recognized one of the subjects as Terry Ramsey; I had arrested him before in a previous marihuana case for possession.
When the other unit arrived, we checked out the vehicle and Officer Long found what had been stuffed under the seat, a plastic baggy of what I believed to be marihuana. The Accused, Mr. Schneider, was the passenger in the back seat; I am certain of that. We additionally found more packages of cigarette papers and2 roach clips. The plastic baggy on the right front floor board appeared to contain marihuana residue.
At the time I stopped the car initially, my specific purpose was to question the subjects inside to see if they were the same subjects who had harassed the boys and made threats. As I approached the vehicle, I was looking for some sort of bottle, since the 2 boys had said they were threatened with a bottle.
Prosecution presented the following exhibits: Plastic baggy containing greenish vegetable matter, marked for identification as Prosecution Exhibit #1; Plastic baggy containing greenish vegetable matter, marked for identification as Prosecution Exhibit #2; red package of cigarette papers, labeled "Alfa Sweet Strawberry" and marked for identification as Prosecution Exhibit #3; and white package of cigarette papers, labeled "Bugler Cigarette Papers" marked for identification as Prosecution Exhibit #4.
CROSS EXAMINATION
I received a call to investigate this complaint at approximately 9:25 and arrived there no more than 5 minutes later. I don't know the exact time the boys called the police, but it would be reflected on the IBM card in the dispatcher’s office. I don't recall the street address, just that it was on Flounder Street; another patrol car arrived prior to my arrival. While I was talking to the 2 boys, we were standing in the sidewalk area. I questioned the boys and they stated they had been harassed by 3 other boys in another vehicle; all they knew about it was that it was bronze or brown in color. They also stated that they had been physically threatened with a bottle of some sort; I believe the boys were of Mexican descent.
I do recall testifying at an earlier investigation of this matter. To the best of my recollection, they told me the vehicle was bronze or brown in color. They told me the incident happened just prior to my arrival – a few minutes before. I did not get their names and addresses because there had been no criminal act committed at this point. I am quite certain they said they had been threatened with a bottle. I then began to look in the general area for the vehicle; even though no criminal act had taken place, I felt some sort of action needed to be taken. I simply wanted to question them to find out if they were the subject who had threatened the boys as there could possibly have been civil charges filed by the boys and their parents. I did not have their names and addresses, but I knew where they were – at the home of one of the boy’s relatives.
At the time I first noticed the vehicle approaching. It was perhaps 1 1/2 or 2 blocks away, and as it came within the range of the patrol car lights together with the street lights, I could see that it was bronze or brown, and that there were 3 distinct silhouettes in the vehicle. This was at about 0935 hours and it was dark outside; I could see well enough to count 3 people in the vehicle. I then proceeded past the vehicle; it made a stop and then shortly thereafter started up again; I believed this could be the vehicle in question. I did not see anything happen while the vehicle was stopped – I was looking for an appropriate spot to make a U-turn.
Witness was handed a document, EPPD Complaint Report, marked for identification as Defense Exhibit A.
This is the initial police report I made the night I arrested the three suspects. I did list the color as gold; I believe bronze or brown could be easily misinterpreted for gold; I could just as easily have put bronze or gold.
At the time I approached the car, the driver had the door open and was leaning on the door; I could smell the marihuana emanating from the vehicle, it was a very strong odor. When I flashed my light inside the car, I observed several packages of cigarette papers, also a plastic baggy associated with marihuana use. I also observed the subject in the back seat on the right side appear to stuff some object underneath the seat. I could also smell the odor of marihuana about the person of the driver, as well as coming from the vehicle. The odor in the general area where marihuana has just been burned is extremely strong; after that it is dissipated in the air and is not as overwhelming. I believe I could walk into a room and estimate how long before marihuana had been burned.
Witness was handed the 2 packages of cigarette papers, marked respectively as Prosecution Exhibits #3 and #4 for identification.
These were the papers found on the floor board in the front seat of the vehicle; we did subsequently find other cigarette papers in the console between the 2 front seats which are also here in this building today. After I flashed my light through the car and saw the papers, and smelled the odor of marihuana, I ordered the other 2 subjects out of the vehicle. It was then that I recognized one of them as Terry Ramsey. That was the first time that evening I had seen him. I do not recollect ever seeing Private Schneider before that night; but he was the one I saw in the back seat. After the other policemen arrived, we were looking for the object that had been stuffed under the seat; I believed it could have been a weapon. When a person in a vehicle attempts to hide something, I believe I have the authority to find out what the object is. I had not "frisked" any of them at that point; I felt no immediate threat.
Officer Long reached under the back seat in the same manner of the person who had stuffed the object there, and found the baggy containing what we believed to be marihuana. We retrieved all the items believed to be narcotics paraphernalia. We placed the subjects under arrest when we found the plastic bag of what appeared to be marihuana found under the rear seat of the vehicle. The 2 roach clips found in the console had what appeared to be marihuana residue; I don't recall if they were still warm. I did not ever find he bottle; I did question the boys about the harassment incident, but did not write any report on that. I did not follow up on it; I didn't believe it was necessary.
REDIRECT EXAMINATION
One of our jobs is to prevent crime, as well as to stop it. This is what I was trying to do when I stopped this vehicle in the first place. At the time I began the search, I was looking for contraband.
Defense objected to Prosecution asking the witness if he had also been looking for marihuana, on grounds it was a leading question; the objection was sustained
The witness was excused and withdrew from the courtroom.
The Prosecution had nothing further to offer on the issue before the court.
Defense called the following witnesses:
Prosecution objected on the grounds that he had not been apprised of the appearance of these witnesses; the Military Judge advised Prosecution that he would be allowed opportunity to interview the witness after direct examination.
RUBEN PENA (Civilian), 2930 Louisville Street, El Paso, Texas, Student
The witness was sworn.
DIRECT EXAMINATION
I am 16 years old. On the 8th of December of 1972, I was at my sister's house, 5864 Flounder. I had gone to the store with one of my friends to buy a soda, and on the way back a car was following us. They stopped the car and got out and one of them slugged my friend and then kicked me in the leg. We left and went to a friend’s house where we stayed about 5 minutes at the most and then went to my sister's house and called the police.
Prosecution objected to the Defense questioning the witness as to the length of the time elapsed at that point, on grounds of irrelevancy; the objection was overruled.
It was about 30 to 45 minutes between the time of the incident and the time when we called the police, and about 10 to 20 minutes after that before the police arrived. 2 Police cars came and 3 policemen; we waited outside for them. I told the policeman that on the way back from the store we had looked at the car following us and admired the car; they stopped the car, turned off the lights and left the engine running and one of them came over and slugged my friend in the face and I went to help him and he kicked me in the leg. Then they got back in the car and left. I told the police it was a beige Dodge; we only saw two occupants in the car. We told the police we had a bottle of soda we had bought; we did not tell them these people had threatened us with a bottle. We also told the police the car had pipes, chrome rims all around, but that is all I can remember. They asked if it sounded loud and we said yes; they did not ask how long ago the incident had taken place, and we did not tell them.
The witness was temporarily excused.
The court recessed at 0950 hours. All parties to the trial who were present when the court recessed were again present when it opened at 0955 hours.
RUBEN PENA, recalled to the stand and reminded that he was still under oath.
CROSS EXAMINATION
We gave most of the information to the policemen in the first car. At first, I was pretty excited, but this was about 45 minutes later.
REDIRECT EXAMINATION
The third policeman was in the other car; he did not get out. He stayed in the car during the entire period of time. The other policeman asked us the questions and was writing down something; all this time we were standing outside the vehicle.
RECROSS EXAMINATION
This is not he first time I ever reported a crime; I did once before.
The witness was temporarily excused and withdrew from the courtroom.
JAMES R. MCDONALD, 10456 Palomino Street, El Paso, Texas, Student
The witness was sworn.
DIRECT EXAMINATION
I am 13 years old. I do recall that on 8 December 1972, Reuben and I were coming back from the store where we bought a bottle of coke. These guys stopped their car and got out and harassed us. We then watched them leave and walked to a friend’s house and from there we went to Reuben’s We arrived at Reuben’s house about 45 minutes later and then called the police; they arrived between 15 to 29 minutes later. We were right in front of Reuben’s house when we talked to the police; there were 3 police there at the time. We told them a description of the car – a beige Dodge with chrome rims and mags in the back; this was specifically the information we gave them. We told them there were 2 occupants in the car. We told them we had a bottle of coke and had been coming from the store; we did not tell them that these people had threatened us with a bottle. I knew one of the officers who arrived in the first police car – his name is Brown and he was on the passenger side of the first police car. We talked mostly to Mr. Brown; one policeman got out of the second car, right when they stopped; he was present during the questioning, and I think he did ask us some questions. I think it was about 9:30 in the evening when the police were questioning us. I think I could recognize all the policemen except the driver of the first car – I didn't see him.
Defense requested permission to have Officer Smith brought back into the courtroom, to ascertain if the witness could recognize him.
I do recognize this individual as one of the police officers who came over that evening; he was the one who got out of the second car and who asked us a few questions.
CROSS EXAMINATION
I was the one who gotten beat up that night. And I was sort of excited. I did most of the talking to the police. I did talk a little bit to Mr. Smith, mostly about what had happened – like why we didn't hit him with the bottle. He told us we should have hit him with the bottle.
The witness was temporarily excused and withdrew from the courtroom.
At the request of the Defense, Officer Smith was recalled to establish make of the vehicle in question.
DIRECT EXAMINATION
The vehicle I stopped the night in question was a Firebird Pontiac.
The witness was excused and withdrew from the courtroom.
Defense made an argument; Prosecution made an argument.
The Military Judge commented as follows:
I do not have any question as to existence of probably cause once the car had been stopped. I do have a question concerning the police officer stopping a car and requesting identification from the driver. Do you (Prosecution) have any case law along that line at all? The Prosecution stated he had nothing to offer.
The Military Judge announced that the Motion of Defense to suppress the evidence was granted. The Military Judge further stated it would be necessary to communicate this ruling to the convening authority to determine his desires with regard to disposal of the charges.
The Military Judge further commented: I do find there was no probable cause, such as, to stop the vehicle in which the accused was allegedly riding; that once the vehicle had been stopped there was probable cause for the search, but found no probable cause for stopping the vehicle.
The court adjourned at 1020 hours, 30 January, 1973.
The Afterword