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]) and sale of cocaine (K.S.A. 65-4127a; K.S.A.
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
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
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 ). It reads:
"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
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
), which, as in effect on December 11 and 12, 1986,
"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 ...