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STATE v. ROBERTS

January 26, 1990.

STATE OF KANSAS, Appellee,
v.
MICHAEL ROBERTS, Appellant.



This is a direct appeal by defendant Michael Roberts from his jury convictions for sale of heroin (K.S.A. 65-4127a; K.S.A. 65-4101[p][1]) and sale of cocaine (K.S.A. 65-4127a; K.S.A. 65-4101[p][4]).

The primary question raised for our resolution is whether the trial court erred in refusing to exclude the testimony of John Wimbish, the State's principal witness.

Wimbish was an investigator assigned to the U.S. Army Criminal Investigation Division (CID) unit stationed at Fort Riley. Acting as an undercover agent, Wimbish made off-installation buys of narcotic drugs from defendant Michael Roberts, a civilian, on December 11, 1986, and December 12, 1986. The first buy was of heroin; the second was of cocaine. The two buys gave rise

[14 Kan. App. 2d 174]

      to the initiation of this prosecution by the filing of a two-count complaint/information on May 29, 1987. Roberts was arrested on March 14, 1988. He was tried on November 18, 1988.

  In the record, Wimbish is identified as a semi-covert "drug suppression team" (DST) member. Whether all DST members were CID personnel or whether the DST also included Junction City Police Department (JCPD) personnel is not clear. However, the record does disclose that Wimbish's two buys took place under back-up visual surveillance conducted by CID personnel and a JCPD officer. After completing each buy, Wimbish orally reported what had transpired to the JCPD officer at the Junction City police station. Wimbish then field tested the purchased substances at his office on Fort Riley, found they tested positive, and, on December 12 and 16, gave the purchased substances and the field test results to the JCPD officer.

  Neither Wimbish nor other CID personnel directly or indirectly participated in the making of an arrest, or in the conduct of a stop and frisk, or in the execution of a search or seizure. Neither Wimbish nor other CID personnel had any direct or indirect contact or involvement with Roberts other than the making of the buys and the conduct of the surveillance.

  Wimbish's superior's CID investigation report states: "This investigation was conducted as a joint investigation with . . . JCPD. Coordination was made on a routine basis with [JCPD]." According to that same report, the CID activity was triggered by a December 11 report to the CID by one of its confidential informants that "he had purchased drugs from Michael Roberts in the past." Somewhat in contrast, when the JCPD officer was asked at trial whether he asked the CID "to assist you in making these drug buys," he answered, "Yes." This is the sole record evidence concerning the subjects of who asked whom for assistance and the relationship of the CID and JCPD personnel when acting in this matter.

  Roberts complains that the exclusionary rule, applied to unlawful search and seizure evidence to assure an individual's personal Fourth Amendment rights, should have been invoked here so as to exclude Wimbish's testimony.

  The foundation of Roberts' argument is the federal Posse Comitatus Act (PCA) (18 U.S.C. § 1385 [1982]). It reads:

[14 Kan. App. 2d 175]

     

 
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army . . . as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both." (Emphasis added.)
By its language, the PCA is a penal statute; it effectively proscribes certain conduct; it fixes a penalty for its violation. The trial court ruled that the PCA was not violated in the present case.
  Not mentioned by the parties is 10 U.S.C. § 375 (1982), a corollary to the PCA (State v. Short, 113 Wn.2d 35, 775 P.2d 458 [1989]), which, as in effect on December 11 and 12, 1986, provided:
"The Secretary of Defense shall issue such regulations as may be necessary to insure that the provision of any assistance (including the provision of any equipment or facility or the assignment of any personnel) to any civilian law enforcement official under this chapter [10 U.S.C. § 371 et seq. (1982)] does not include or permit direct participation by a member of the Army . . . in . . . a search and seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law."
  It seems that the Secretary of Defense complied with the direction of 10 U.S.C. § 375 by the issuance of the regulations found at 32 C.F.R. § 213.1 et seq. (1988). Presently pertinent are these provisions of those regulations:
 
"§ 213.1 Purpose. This part [32 C.F.R., ch. 1, part 213] establishes uniform DOD [Department of Defense] policies and procedures to be followed with respect to support provided to Federal, State, and local civilian law enforcement efforts."
"§ 213.4 Policy. It is the policy of the Department of Defense to cooperate with civilian law enforcement officials to the maximum extent practicable. Under §§ 213.8 through 213.11, the implementation of this policy is consistent with the needs of national security and military preparedness, the historic tradition of limiting direct military involvement in civilian law enforcement activities, and the requirements of applicable law."
"§ 213.10 Restrictions on participation of DOD personnel in civilian law enforcement activities. (a) Statutory requirements. (1) The primary restriction on military participation in civilian law enforcement activities is the ...

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