
    374 F. 2d 894
    RALPH E. SAYLOR v. THE UNITED STATES
    [No. 133-63.
    Decided March 17, 1967]
    
      
      Carl L. /Shipley, attorney of record for plaintiff. Shipley, Akerman da Piekett, of counsel.
    
      Bay Goddard, with, whom was Assistant Attorney General Barefoot Sanders, for defendant.
    Before Cowen, Chief Judge, Laramore, Dureee, Davis, ColliNS, Skelton and Nichols, Judges.
    
   Davis, Judge,

delivered the opinion of the court:

The plaintiff, a veteran entitled to the benefits of the Veterans’ Preference Act of 1944, 58 Stab. 387, sues for back pay owing because of his alleged unlawful removal from his civil service position. After a tour of duty as an Army officer in Japan, he was released from .the service and was employed in a civilian capacity by the Army in Japan. In 1955, he transferred to the Professional Entertainment Branch, Pacific Command, which was located at Camp Zama, Japan. In time, he was promoted to Director of the Branch at a grade 12 rating. Every two years or so, this activity and its employees rotated between the Army and the Air Force. Between December 2, 1957 and September 20, 1960 the Branch was part of the Air Force, reverting to the control of the Army on the latter date.

Because of a private complaint received by plaintiff’s superiors, while he was with the Air Force or shortly thereafter, it was determined in the fall of 1960 that an investigation should be made of plaintiff’s conduct of his position (especially bis alleged favoring of tbe agents of certain entertainers). Since at that time tbe Air Force performed the investigation work for tbe entire Pacific Command, two Air Force special agents were assigned to plaintiff’s case (although be was then under tbe Army). They filled in a mimeographed form, entitled “Authority to Search”, which purportedly authorized them to search plaintiff’s person, his automobiles, and his quarters, incident to their investigation into “Misconduct and/or Alleged Fraud”, “and to seize any property pertinent to such investigation.” The form was signed on November 30, I960, by the Air Force colonel who was the Deputy Commander for Administration of the Air Force unit with cognizance of the investigation. Although the automobiles and the quarters were identified, there was no limitation of matters to be searched or seized, nor was there any description of the items sought. No sufficient probable cause was indicated to the colonel in any maimer, and he did not make such a determination; there was no oath or affirmation given in connection with the execution of the document.

On the next day, December 1, 1960, the special agents presented themselves at the office of the plaintiff’s superior, Army Lt. Col. Fleischer, advising him of their mission. The colonel introduced the agents to the plaintiff at 8:30 or 9 o’clock that morning. They remained with the plaintiff until about 6 o’clock in the evening. The agents identified themselves and told him that he was under investigation for misconduct and/or alleged fraud. They read to him the Fifth Amendment to the Constitution, as well as Article 31(b) of the Uniform Code of Military Justice, and advised him of his right to counsel. There was practically no interrogation of the plaintiff by the agents, who were interested, rather, in whatever might be turned up in a search of the plaintiff’s office, home and automobiles, which might shed any light on any kind of wrongdoing by him in connection with his job. He was asked to sign a written consent to a search of his desk and private papers located in the Government office where he worked, and he did sign a writing consenting to this part of the search. The agents spent most of the morning going through the office, looking through both official files and private papers of the plaintiff, from his desk and briefcase. They extracted papers which filled two or three boxes and placed the boxes in the trunk of a Government car which was assigned to their use. The agents, although not questioning the plaintiff, accompanied him to the men’s room and also to lunch. When plaintiff asked whether he was under arrest, he was answered in the negative.

Saylor’s quarters were located in a military compound called Washington Heights, near the center of Tokyo. When the search of the office was completed, the agents told him that they were going on a trip to Washington Heights, and he was told that it would be beneficial if he would accompany them. He did so. After stopping on the way at the Army Provost Marshal’s office, the agents, with the plaintiff in the rear seat of the automobile, proceeded to his home, where he was told that they intended to search the home. He was shown the general “Authority to Search”, and the search proceeded. He did not consent to the search of his home or of the automobiles.

The agents made a very thorough search of plaintiff’s home, opening and examining the contents of bureau drawers, jewelry cases, closets, and suitcases. They took a pile of papers and documents, about three or four inches in bulk. They then went to the automobiles, parked at the home, and searched them, taking some additional documents. There was no segregation of the documents taken from the office, from the home, or from the automobiles. All were mixed together.

Entirely on the basis of the contents of letters and other documents seized by the special agents, the plaintiff was charged, in April 1961, with engaging in business and professional activities and interests which resulted in a conflict of interest with his official duties in connection with the Government’s entertainment program in the Pacific area, as well as with violating an Army regulation forbidding the carrying on of commercial enterprise without prior official approval. His removal was proposed.

After replying to the charges contained in this advance notice of removal, the plaintiff received a determination that, upon consideration of the charges and his reply, it had been found that the charges were sustained and that he would be dismissed on a day certain. (The date of removal was ultimately extended until all appeal procedures had been exhausted.)

The plaintiff requested a grievance hearing. This was allowed and a 4-day hearing was conducted by a grievance committee. The plaintiff appeared personally and by counsel. At the commencement of the hearing, he was asked whether he had seen each letter excerpted in the letter of charges. He answered affirmatively. The chairman of the grievance committee then asked whether there was any objection to the use of such letters as exhibits, and there was no objection. Previously the chairman had read from certain civilian personnel regulations, dealing primarily with the function of the grievance committee, and the procedures to be followed during the hearing. In this connection, the chairman said, among other things, that “legal rules of evidence used in courts of law will not be observed”, and that the hearing was not being held for the purpose of completely developing the case but rather “as a means for assembling additional information or testimony to supplement an existing record.”

The grievance committee recommended that the removal action be sustained, and the Commanding General, United States Army, Japan, informed plaintiff that the testimony and evidence warranted his dismissal. The plaintiff then appealed to the Commander in Chief, United States Army, Pacific, and for the first time stated a detailed objection to the manner in which the search of his home and automobiles had been conducted, pointing out that all the evidence upon which his removal was sought stemmed from the unlawful “raid and impounding of the employee’s personal papers.” The Commander in Chief, United States Army, Pacific, denied the appeal, and further appeals were taken up through the Board of Appeals and Review of the Civil Service Commission.

If the evidence supporting the charges was lawfully seized and used in the removal proceedings, it was adequate to sustain the plaintiff’s dismissal. There are, however, two problems in the case. The principal one is whether the taking and use of this evidence violated plaintiff’s constitutional rights under the Fourth Amendment to be secure in his home and property against unreasonable searches and seizures. The procedural question is whether plaintiff has waived his privilege to present that constitutional issue to us.

There can be no doubt that, if this were a wholly civilian case arising in this country, the search and seizure here would be invalid and the dismissal unlawful. Almost every proscription of the Fourth Amendment would have been violated. The search and seizure were not connected with an arrest, and would therefore have required a warrant. If the standard-form “Authority to Search” (footnote 1, supra) be equated to a warrant, there would be several vital defects. The colonel wbo signed it, the Deputy Commander for Administration, was not an impartial magistrate or the equivalent of one. No showing of probable cause was made to him, and there was no oath or affirmation by the special agents or anyone else. The colonel made no finding of probable cause, and, so far as the record reveals, there was, in fact, no probable cause for a search. The evidence, either in the administrative proceedings or before this court, does not suggest that, prior to the search, anyone had reason to believe that any particular document, or any relevant documents at all, might be expected to be found in the plaintiff’s quarters or automobiles. In addition, the “Authority to Search” was totally without limit and did not describe the things to be seized; it specifically permitted the seizure of “any property pertinent to [the agents’] investigation.” This made it, in effect, a general warrant which has been forbidden in Anglo-American law for two centuries. Stanford v. Texas, 379 U.S. 476 (1965); Marcus v. Search Warrant, 367 U.S. 717 (1961). The actual search, itself, would also have to be classed as general, nosing for whatever might turn up. Plaintiff’s home and automobiles were exhaustively gone into, not to find described items, but to see what was there. Cf. Kremen v. United States, 353 U.S. 346 (1957); Powell v. Zuchert, 366 F. 2d 634 (C.A.D.C 1966).

In a wholly civilian case within the United States, the fruits of such a search and seizure could certainly not be used as the foundation for the discharge of a federal employee entitled to veterans’ preference. For “when Section 14 of the Veterans’ Preference Act, 5 U.S.C. § 863, refers to ‘evidence submitted’ in employee discharge proceedings, it means evidence submitted without violating the Constitution of the United States. * * * It would seem wholly at odds with our traditions to allow the admission of evidence illegally seized by Government agents in discharge proceedings * * Powell v. Zuckert, supra, 366 F. 2d at 640. The guarantees of the Fourth Amendment are fundamental to our system (Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961)), and the Supreme Court has held tbe exclusionary rule essential to their enforcement. Mapp v. Ohio, supra.

The Government’s defense is that this is not a civilian case within the United States, but a suit with dominant military-overtones arising abroad at the equivalent of an American military base. It is said, first, that the Uniform Code of Military Justice and the Manual for Courts-Martial authorized the search, and that plaintiff, as an overseas civilian employee of the military, was subject to the Code and the Manual. But whatever may 'be the search-and-seizure rules for persons who are subject to military justice, neither the Code nor the Manual prescribes any rules for civilian employees. The Supreme Court has put that beyond litigable controversy. In McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960), and Grisham v. Hagan, 361 U.S. 278 (1960), the Court expressly invalidated Article 2(11) of the Uniform Code, 10 U.S.C. § 802 — the provision placing under the Code “persons serving with [or] employed by -* * * the armed forces outside the United States” (with irrelevant exceptions) . It was held, not merely that civilian employees are free of court-martial trials, but that they are not subject to the Uniform Code because the constitutional power (Art. I, § 8, cl. 14) “To mate Buies for the Government and Begula-tions of the land and naval Forces” — the basis for -that Code— does not encompass civilians employed by or accompanying the military abroad (at least in peacetime). See 361 U.S. at 242-43,246-48,283-84,286. In this respect, the Court in 1960 followed Mr. Justice Black’s opinion in Reid v. Covert, supra, 354 U.S. at 19 ff. The necessary conclusion is that the Code and its implementing Manual cannot be used to sustain the search and seizure in this civilian employee’s case.

It is then said that, apart from the Code, under immemorial custom a military commander has virtually unlimited authority to authorize searches on a military station or ship of war, and that he must possess that power for the safety and discipline of his command and his subordinates. See United States v. Grisby, 335 F. 2d 652, 654-55 (C.A. 4,1964); Richardson v. Zuppann, 81 F. Supp. 809, 813 (M.D. Pa. 1949), aff'd, per curiam, 174 F. 2d 829 (C.A. 3,1949). We can avoid the hypothetical question of the full extent of this power in any and all situations because we are satisfied that, in the particular circumstances of this case, the military commander could not authorize the search or the seizure which were made. It is important, in judging the commander’s authority in the concrete setting, to weigh both the public and the private interests at stake. Cf. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961). On that scale, as we now point out, the search and the seizure are clearly marked as unreasonable.

The possible allegations against plaintiff, implicit in the private complaint against him and the then current rumors, involved fraud and conflict-of-interest in carrying on his job of helping to provide entertainment for the troops — not violence, the security or safety of the command, the discipline of servicemen, subversion, or even the theft or embezzlement of federal funds. So far as we can tell, there was no need for an immediate search to prevent use or disposition of weapons, or the instruments or fruits of a crime. There was, in other words, no emergency; as a matter of fact, the military waited some time (apparently a month or two) after receiving the private complaint before executing the search. There is no showing, moreover, of any other need for a general and unlimited authority to search such as this, or for one unsupported by any probable cause, or for the thorough but unparticularized search that was actually made. So far as we are aware, the Air Force special agents did not first undertake to probe into the allegations by interviewing persons who might have some knowledge of the facts, or otherwise undertake to acquire some reason to believe a search for specific items was necessary.

In appraising the reasonableness of this search it is also significant that the plaintiff was a civilian and not generally amenable to military jurisdiction and discipline. This separate status meant that he could not be automatically treated as if he were a soldier. To make the search of a civilian’s home and property reasonable, more of a showing may be required and more protections afforded, to the extent that conditions warrant. In this instance there was not the slightest effort in this direction, even though the extreme latitude allowed the investigators was neither necessary nor desirable. None of the safeguards traditionally surrounding American searches and seizures was utilized (except for the superfluous identification of the plaintiff’s residence and automobiles). On their own initiative the agents were handed, and used, an unconfined roving commission.

Of course, Saylor’s home was located in Washington Heights, a residential compound under the control of the American military, but the civilians (at the least) living there were entitled under the Fourth Amendment to some security “in their persons, houses, papers, and effect.” See Reid v. Covert, supra, 354 U.S. at 5-14 (opinion of Mr. Justice Black); Powell v. Zuckert, supra, 366 F. 2d at 640. However one characterizes the technical status of the ground on which it stood, the place was Saylor’s private home and the community a residential one. In the absence of any showing of need for the undefined and unlimited general inquiry authorized and made, there is no more reason to uphold this search and seizure than there was to sustain the general search, of another civilian employee’s home “at an off-base private dwelling” (in Japan) which was invalidated in the comparable case of Powell, supra. Even though we may assume that the commander could — in other, more pressing, circumstances — authorize a general search of this character, there was here far less than minimal justification.

No judicial decision supports the lawfulness of this search and seizure. In Best v. United States, supra, 184 E. 2d at 138-41 (C.A. 1, 1950), cert. denied, 340 U.S. 939 (1951), Judge Magruder took pains to disavow the notion that the Fourth Amendment does not extend to civilian Americans in foreign countries occupied by our armed forces, and upheld the Army’s warrantless search of the traitor Best’s Viennese apartment only after concluding that it was reasonable “in the particular setting” — a setting poles apart from that before us. In Grewe v. France, 75 F. Supp. 433, 434, 437 (E.D. Wis. 1948), involving a civilian employee of the Army in Germany in June 1946, the court also stressed the emergent circumstances (again far different from ours) and evaluated the particular search as reasonable. Richardson v. Zuppann, supra, 81 F. Supp. 809, 811, 813, aff'd per curiam, 174 F. 2d 829, concerned a serviceman not a civilian (see 81 F. Supp. at 810), and the judge applied the law customary for members of the military establishment who are subject to military law. Similarly, in United States v. Grisby, supra, 335 F. 2d 652, the defendant was a Marine corporal, convicted by a District Court on evidence seized pursuant to a search of his quarters on a military reservation, without a warrant, ordered by military superiors on the basis of probable cause. The two significant features which distinguish Grisby are that that accused was a military man, clearly subject to military law, and that the search was authorized after a finding of probable cause. The court par-ticlarly emphasized the latter factor (335 F. 2d at 655). These cases, proffered by defendant, are all inapposite. Almost precisely in point is Powell v. Zuckert, supra, a discharge case in which the District of Columbia Circuit recently voided a general search and seizure of a civilian employee’s residence in Japan (citing Commissioner Day’s opinion in the present case).

The only remaining hurdle to a judgment of recovery is the defense that plaintiff waived his right under the Fourth Amendment to be free of evidence unlawfully seized. As earlier indicated, the plaintiff, represented by counsel at the grievance board hearing, did not object to the use of the seized documents, though given that opportunity at the beginning of the hearing by a considerate and thoughtful chairman. Did he, by his failure to so object, waive his right to the fundamental protection of the constitutional guarantee? We are of the view that he did not. The grievance proceeding was informal, and legal rules of evidence would not be observed. The indications were that materials already in the file would in any event be considered, and that the hearing served “primarily as a means for assembling additional information or testimony to supplement an existing record.” Excerpts from the seized documents had already appeared in the letter of charges, and it may well be that plaintiff and his counsel thought that those excerpts would necessarily remain part of the record even though plaintiff objected to other parts of the same documents or to other documents. At any rate there was no discussion at the hearing of the plaintiff’s rights under the Fourth Amendment or of the bearing of the circumstances of the search and seizure on his right to have the documents excluded from all consideration. There appears to have been neither a conscious or informed waiver nor a deliberate tactical choice to by-pass the Fourth Amendment issue. In these circumstances, a constitutional right of the greatest magnitude, so directly related to the heart of the case against plaintiff, should not be held to be waived by the ambiguous action of failing to object at the grievance hearing — especially since the point was later made and preserved before administrative review was completed within the employing agency. Cf. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Fay v. Noia, 372 U.S. 391, 439 (1963); White v. Maryland, 373 U.S. 59, 60 (1963); Henry v. Mississippi, 379 U.S. 443, 448 ff. (1965); Miranda v. Arizona, 384 U.S. 436, 475, 495 (1966).

The plaintiff has objected, at every stage subsequent to the grievance board hearing, to the use of the seized documents. He made the point explicitly in his appeal to the Commander-in-Chief, United States Army, Pacific, from the decision of the Commanding General, United States Army, Japan (which followed the grievance board’s recommendation). In then seeking review at the first level within the Civil Service Commission, plaintiff was not as explicit, hut Ms letter of appeal referred, at the outset, to his detailed presentation within the employing agency and to “the full contents of his appeals within the Agency’s grievance procedure”, and added: “These documents set forth in detail the objections and the grounds therefor which the Employee registered at each stage of the removal action. Each and every objection has been completely ignored to date. In fairness to the Employee it is requested [that] they be read carefully. We believe you will agree that never has one removal action been so completely discredited by procedural and substantive violations.” This was sufficient to raise the point before the Commission. Powell v. Zuckert, supra, 366 F. 2d at 641. The issue was preserved on appeal to the Board of Appeals and Review, whose decision noted that “You [plaintiff’s counsel] also contend that the employing agency violated Mr. Saylor’s constitutional rights by an unlawful search and seizure of his files and using such information as evidence to support the charges.” The Board’s answer was: “You are advised that the issue of whether or not the agency’s impounding of the records violated Mr. Saylor’s constitutional rights is not properly for consideration by this Board.” The reason for this abstention is unclear. What is plain is that the argument was made before the Commission, as it has been in this court.

The Government’s case falls with the exclusion of the seized documents since the removal was admittedly based entirely on those papers. The plaintiff is therefore entitled to recover his back pay, less appropriate offsets, and judgment will be entered to that effect. The amount of recovery will be determined under Rule 47(c).

Niohols, 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 case 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.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner William E. Eay, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, a civilian employee of the Army at the time of his removal for cause by the Department of the Army, is a veteran, and therefore entitled to the benefits of the Veterans’ Preference Act of 1944.

2. In 1954, the plaintiff had been released from military duty in Japan, where he had served with the Army. In June of that year, he accepted civilian employment and was assigned in an administrative capacity to a position at Camp Crawford, Hokkaido, Japan. In the summer of 1955, the plaintiff apparently transferred to tbe Professional Entertainment Branch, Pacific Command, which was located at Camp Zama, Japan. This nnit was generally concerned with the administration and operation of the programs of entertainment for the Armed Forces in the Pacific Area. On July 1, 1956, he was promoted to a grade 12 position as Director of the Professional Entertainment Branch.

On December 2, 1957, until September 20,1960, the plaintiff and the unit by which he was employed, were transferred and assigned to the United States Air Force, with offices located at Fuji Air Station, about 20 miles distant from Camp Zama, Japan.

On September 20,1960, the plaintiff’s employment and the function of the unit by which he was employed transferred to the Army and returned to Camp Zama.

3. At about the time of this last transfer, a certain complaint concerning the plaintiff’s alleged favoring of the agents of various entertainers had caused the institution of an investigation of the plaintiff by the office of the Inspector General of the Air Force.

4. Incident to such investigation, two special agents of the Office of Special Investigations, I.G., United States Air Force, were assigned to the task. On 30 November, 1960, they obtained the signature of Air Force Colonel Walter J. Wilson, Deputy Commander for Administration of the Headquarters 6000th Support Wing, to a form “Authority to Search,” purportedly authorizing such agents, in the course of their investigation into “Misconduct and/or Alleged Fraud” to search two automobiles owned by the plaintiff (specifically identified by license number), as well as his quarters (identified) “and to seize any property pertinent to such investigaJtion.” The plaintiff’s quarters, at the time, were located at Washington Heights Military Compound, near the center of Tokyo, Japan, under the jurisdiction of .the Air Force.

No sufficient probable cause for such a search was presented to Colonel Wilson and he made no determination of the existence of probable cause. No oath or affirmation was given in connection with the issuance of the “Authority to Search..” There was, in fact, no probable cause for the issuance of such an “Authority to Search.”

5. On the next day, the same two special agents of the Air Force presented themselves at the plaintiff’s office at Camp Zama, Japan, and spoke to Lt. Col. Irving S. Fleischer, his superior. This officer was advised as to the nature of the visit and that it was the intention of the special agents to search the plaintiff’s desk and private papers. Lt. Col. Fleischer brought the plaintiff to a separate room to which he had directed the special agents and introduced the plaintiff to them. They informed the plaintiff that he was the subject of an investigation being conducted by them, involving alleged misconduct and/or fraud. They read aloud to the plaintiff the provisions of the Fifth Amendment to the United States Constitution, and advised him that he was entitled to counsel. They also read to him Article 31(b) of the Uniform Code of Military Justice, to the effect that the interrogators may not proceed to interrogate or request a statement, without informing the subject of the investigation of the .nature of the charges, that he does not have to make a statement, but that any statement made can be used in a trial of court-martial.

6. After having been given the warnings referred to in the preceding finding, the plaintiff was requested to sign a written consent to the search of his desk and private papers located in the Government office where he was employed. The plaintiff did sign such a consent to search. The search proceeded apparently with practically no questioning, if any, of the plaintiff. It occupied most of the morning. The agents accompanied the plaintiff when he went to the men’s room.

The special agents placed the documents which they had extracted from the plaintiff’s desk and his brief case in two or three cardboard boxes and placed the boxes in the trunk of the automobile they were using.

Thereafter, the special agents accompanied the plaintiff to lunch. The plaintiff was advised by the agents that the plaintiff should accompany them to Washington Heights. The plaintiff did accompany them. It appears that the agents had a Government automobile and this was used to transport them to Washington Heights (abont 20 miles distant), stopping at the Army Provost Marshall’s office en route. The plaintiff asked whether he was under arrest, and was told that he was not under arrest, but it would be beneficial if the plaintiff would accompany them. They drove to the plaintiff’s quarters, where the plaintiff lived with his wife and child. When they arrived at the plaintiff’s residence, the plaintiff was shown the “Authority to Search” described in finding 4 and told that the agents intended to search the house. Plaintiff did not consent to the search of his home or of the automobiles. A thorough search of the house was made. They went through the bedrooms first, opening and examining the contents of bureau drawers, jewelery cases, closets and suitcases. ' The agente seized and took possession of a quantity, about three or four inches in bulk, of letters and correspondence from the plaintiff’s home. The plaintiff’s two automobiles were then searched by the agents, under the purported authority of the “Authority to Search”. Some documents were removed from at least one of the automobiles.

7. There was no attempted segregation of the documents which were seized from any of the places searched, including office, residence or automobiles. An inventory of the lot was made later, however.

8. Entirely on the basis of the letters and copies of letters and other writings which had been seized from the plaintiff, as shown above, the plaintiff on April 6, 1961, was sent an 11-page notice of proposed removal from his position, for conflict of interest and willful violation of a written regulation prescribed by competent authority. The notice of removal was signed by Lt. Col. Irving S. Fleischer, Special Services officer, the plaintiff’s superior. It advised the plaintiff of his right to reply to the charges and stated that such reply would be considered before a final decision as to the removal was made. The letter of charges is reproduced in material part in the Appendix.

9. The plaintiff, in due course, did reply to the charges. On May 5,1961, a notice of final decision of removal was sent to the plaintiff by the Acting Civilian Personnel Director, Headquarters, United States Army, Japan. The date of removal was fixed at May 12, 1961. The plaintiff was advised of bis appeal rights in such notice. Upon the plaintiff’s request for grievance hearing, the date of the plaintiff’s removal was extended to allow him to remain in duty status pending final disposition of his grievance.

10. On June 2,1961, a grievance committee at Headquarters United States Army, Japan, was designated to hear the plaintiff’s appeal. The hearing began on June 14,1961, extending over a 4-day period. At the conclusion of the hearing, the chairman inquired of the plaintiff whether he believed that he had had a fair hearing. The plaintiff replied, “Yes I do.” The plaintiff was represented by an attorney of his choosing at the grievance hearing. The Government representative was Lt. Col. Fleischer, the author of the letter of charges.

At the beginning of the grievance hearing, the chairman made a statement and read excerpts from Civilian Personnel Regulation CPR E 2. One of the portions so read was that legal rules of evidence used in courts of law will not be observed. Quite early in the grievance hearing, the chairman inquired of the plaintiff whether there was any objection to the use of the letters from which excerpts had been made and included in the notice of proposed removal action as exhibits in the record of the grievance hearing. No objection to the use of such letters was made by either the plaintiff or his attorney.

The chairman later asked the plaintiff’s attorney, “Do you have any obj ection to the introduction of these letters ? ” The plaintiff’s attorney replied, “No, I have no objection to the letters except that I feel that only those portions which we have decided are germane should be considered by the committee.”

11. On October 26, 1961, the Grievance Coimnittee submitted its unanimous report on the matter to the Commanding General, United States Army, Japan. It found the allegations in paragraph 2a (1) through (5) of the notice of proposed removal not substantiated (by the employer). The report reads, in pertinent part, as follows:

‡ ‡
b. Evidence supporting the allegation in para 2a (6) of the Notice of Removal indicates that the appellant received an authorization to act as an agent for a purveyor of entertainment from whom he procured entertainment for the U.S. Government; that he failed to notify his superiors of this relationship, and that subsequently, he acted thereon by discussing the cost and availability of an entertainment unit for presentation in Japan. The facts indicate that the U.S. Government would not have paid the amounts quoted for its entertainment program and that the obvious purpose was to make arrangements on behalf of a commercial booking agent. In the opinion of the committee this constitutes a conflict of interest as outlined in para 3a, AFR 30-30, dated 12 March 1953.
c. Consideration of all the evidence presented concerning the allegations stated in para 2 of the Notice of Proposed Removal and the reply of appellant; taking cognizance of the unusual familiarity of relationships of persons engaged in the entertainment field and the energetic and capable performance by the appellant of his duties as a Government employee, still leads this committee to the conclusion, that the appellant should have known that many of his actions were far beyond his position requirements and would lead a reasonable man to the opinion that the appellant might not fully and properly discharge his duties to the United States. Thus, this committee considers that a conflict of interest was created within, the meaning of para 3b(l) (c), AE 600-205, dated 3 June 1953.
d. In view of the findings in snbpara b and c above the committee considers the proposed removal action in order.
*****
F. CONCLUSIONS:
Based on its consideration of the evidence of record in Mr. Saylor’s case, the Committee concluded that:
1. Mr. Saylor was involved with individuals and in activities in a manner that undoubtedly created a conflict of interest. He received an authorization to act as an agent for a purveyor of entertainment from whom he procured entertainment for the U.S. Government; he failed to notify his superiors of this relationship; and, subsequently, he acted thereon by discussing the cost and availability of an entertainment unit for presentation in Japan.
2. Mr. Saylor willfully violated a written regulation prescribed by competent authority. His name and an established personal cable address were _ used by WESPAC Corporation, a corporation organized under Japanese law to engage in export activities. He authorized the WESPAC Corporation to act for him, and personally initiated and received correspondence concerning business transactions. These actions were taken without securing prior required approval.
G. EECOMMENDATIQN:
The Grievance Committee recommends that the action of removal be sustained.
H.DISSENTING OPINIONS:
None.

‘12. On November 14, 1961, the Commanding General, United States Army, Japan, wrote to the plaintiff in part as follows:

ífí *f» »f» »f!
1. Eeference DA CPE E2.
2. The United States Army Japan Grievance Committee has submitted the entire record pertaining to your appeal based on an adverse personnel action to remove you from the Federal service. The charges against you are listed as conflict of interest and violation of written regulations prescribed by competent authority.
3. I have reviewed the complete record carefully and find that the testimony and evidence presented does warrant your removal. This decision is based on the following points:
a. You did not clearly explain the circumstances surrounding receipt of authorization to act as an agent for a local commercial organization. You did not meet your moral obligation “to refrain from placing yourself in relations which excite conflict between self-interest and integrity.” (AR 600-25, para 3)
b. You did establish that certain unusual factors entered into the performance of your official duties, but you failed to show why your activities outside normal duty hours in connection with entertainment personalities were actual job requirements. Your associations with individuals doing business with the Government which were far beyond your position requirements do not place you above reproach or suspicion in all respects at all times. (AR 600-25, para 3)
c. The evidence of record does reveal involvement with individuals and activities which could have created a conflict of interest.
d. You did not establish a satisfactory explanation of complete non-interest or non-participation in activities which reflect engagement in an export business. You had not been authorized to conduct or enter into such business transactions to any degree.
4. You have the right to request a review of this decision by the Commander in Chief, United States Army, Pacific, if you file such a request in writing within 10 work days from the date of receipt of this letter. A request for review must show specifically why you feel this decision does not conform to law, is contrary to Department of the Army policy, is clearly contrary to evidence of record, or that there has been a denial of fair hearing or procedural right which effectively precluded adequate presentation of your case. Your request should be addressed to the Commander in Chief, United States Army, Pacific, APO 958, through this headquarters so that the case file may be forwarded with your request.
5. You may have access to the grievance record except that portion which contains the grievance committee’s report, and you may make comment thereon in preparing your request for review. You also have the right to receive assistance from the Civilian Personnel Director, this headquarterSj in processing your request.
6. If you exercise your right to a review of this decision, you may elect to remain in this command pending receipt of the decision from United States Army, Pacific; however, your retention in Japan must be in an annual leave and/or leave without pay status. You should state in writing whether or not you wish to remain in J apan in this status at the time you file your request for review.
7. Should you decide not to request further review of this decision, the removal action as proposed will be processed to a conclusion, to be effective 8 December 1961, and transportation for your return to Echo, Oregon, your place of residence at the time of your hire in J apan, will be arranged. You will be furnished with a Standard Form 50, Notification of Personnel Action, prior to your departure.
*****

13. Thereafter, on November 30,1961, the plaintiff appealed to the Commander in Chief, United States Army, Pacific. In this letter of appeal, the plaintiff for the first time objected to the seizure of papers from his home in the following terms:

ij: ifc i}*
a. At the inception, the Employee’s letters were seized from him by OSI agents when they descended upon his home WITHOUT REASONABLE CAUSE, in violation of the Employee’s Constitutional Rights, for the sole purpose of conducting a fishing expedition to try and ascertain some basis upon which to effect the Employee’s removal. The fact that no evidence of any violation existed and that prior to the raid no investigation was being conducted involving the Employee is borne out by the Command’s own admission in its letter of April 6, 1961 at paragraph 2.a.(l) that all the information upon which the erroneous removal action is based was obtained after the raid and the impounding of the Employee’s personal papers. The Notice of Proposed Removal admits that each and every allegation flowed from this illegally obtained evidence. At the Grievance Hearing the government did not offer one single bit of evidence which originated outside the illegal raid and seizure.

14. On January 18, 1962, the plaintiff was advised on behalf of the Commanding General that the decision of the Commanding General, United States Army, Japan, to remove him from his position was confirmed. In this letter, the plaintiff was further advised of his right to appeal to the Secretary of the Army.

15. It was necessary that the plaintiff remain in Japan after his removal from his position, because of some criminal charge then pending against him in the courts of Japan.

16. The plaintiff’s further appeal to the Secretary of the Army was not transmitted to that office. It was sent through channels by the plaintiff. It was forwarded by endorsement by Headquarters, United States Army, Japan, through the Commander in Chief, United States Army, Pacific. That office, by endorsement, advised the Commanding General, United States Army, Japan, that the plaintiff should be advised of his forfeiture of rights to further consideration of his grievance by the Department of the Army under the provisions of CPR E2.1-5a (2)

17. Under date of February 16, 1962, through counsel, plaintiff appealed his removal to the 12th United States Civil Service Region at San Francisco, California, incorporating all of his prior objections to his removal.

18. On March 22,1962, the Director of the San Francisco Regional Office, United States Civil Service Commission, sustained the removal .action and advised plaintiff that all procedural requirements had been met by the agency in effecting his removal and that the action was taken for such cause as would promote the efficiency of the service.

19. On April 7, 1962, through counsel, plaintiff appealed the decision of the San Francisco Regional Office of the United States Civil Service Commission to the Board of Appeals .and Review, Civil Service Commission, Washington, D.C.

20. In support of the plaintiff’s appeal to the Civil Service Commission Board of Review, counsel, on May 10, 1962, filed an additional statement in which, among other things, an attack was made on the search and seizure of the appellant’s papers which furnished the basis for the charges resulting in his dismissal.

2L, On December 19, 1962, the Chairman, Board of Appeals and Review, United States Civil Service Commission, Washington, D.C., acting for the Commissioners, advised the plaintiff’s counsel of the decision of the Board sustaining the plaintiff’s removal by the Department of the Army and finding that all procedural requirements had been complied with and that the plaintiff’s removal was for such cause as would promote the efficiency of the service. The letter to counsel, referred to above, reads in part as follows:

*****
You also contend that the employing agency violated Mr. Saylor’s constitutional rights by an unlawful search and seizure of his files and using such information as evidence to support the charges. The agency on the other hand has stated that these records were “duly impounded” during the course of an official investigation and did not violate Mr. Saylor’s constitutional rights. In this connection, you are advised that the issue of whether or not the agency’s impounding of the records violated Mr. Saylor’s constitutional rights is not properly for consideration by this Board.
In view of the foregoing and after considering all of the facts and circumstances of the case, the Board concurs with the Regional Office finding that the agency complied with all the procedural requirements of law and regulations in effecting Mr. Saylor’s removal. With respect to Charge 1, the Board finds, as did the Regional Office, that the preponderance of the evidence supports the allegation that Mr. Saylor engaged in business and Erofessional activities and interests with individuals and _ rms in such a manner as to result in a conflict of interest in connection with his official duties. With respect to Charge 2, the Board also finds, as did the Regional Office, that the preponderance of the evidence supports the agency’s allegation that Mr. Saylor engaged in commercial activities (import-export) without prior approval from his Commander which was a direct violation of agency regulations. On the strength of the sustained charges, the Board finds that Mr. Saylor’s removal was warranted; that it was effected for such cause as will promote the efficiency of the service within the meaning of Section 14 of the Veterans’ Preference Act; and that the decision to effect removal was not unreasonable, arbitrary or capricious. Accordingly, the Board has found that the decision of the San Francisco Regional Office issued on March 22,1962, is correct. That decision is therefore affirmed.
For the Commissioners:
‡ ‡ %

22. It is clear that plaintiff’s removal from his position was based solely on the contents of the letters and documents seized from him.

23. Although plaintiff’s counsel stated that he had no objection to the use of the seized letters and documents at the grievance hearing, the plaintiff thereafter urged at each further step in the appeal proceedings, and in this court, that the seizure of these documents was unconstitutional.

24. In all the circumstances, it is found that the search and seizure of the documents from plaintiff’s home and automobiles was unreasonable, unlawful, and in violation of the Fourth Amendment to the United States Constitution.

APPENDIX

USARJ SS-A 6 April 1961

SUBJECT: Notice of Proposed Removal

*****

1. In accordance with Civilian Personnel Regulations C2 and SI, and in the interest of promoting the efficiency of the service, you are advised that it is proposed to effect your removal from the Federal service on 12 May 1961, for conflict of interest and willful violation of a written regulation prescribed by competent authority.

2. The specific charges set forth below are made against you in support of this proposed action:

a. That during the period from November 1956 to the present, you engaged in business and professional activities and interests with individuals and firms in such a manner as to result in a conflict of interest in connection with your official duties as the PACOM Entertainment Coordinator, an agent of the United States Government, procuring entertainment for the Pacific Command. This is a direct violation of para 3, AR 600-205, dated 3 June 1953, as amended.

(1) The following Information discovered in your personal files, which was duly impounded for the purpose of a special investigation, discloses that in your official capacity as PACOM Entertainment Coordinator, you used information, knowledge, and your official position to personally benefit yourself and certain theatrical agents by eliminating competition that would have been otherwise beneficial to the professional entertainment program for the Pacific Command.

(a) In a letter dated 16 November 1956, Mr. Walter A. Bouillet, 3454 N. Edison St., Arlington, Ya., a professional entertainment agent offering entertainment to the US Forces, appealed to you to do everything you possible [sic] could to make a show touring the Far East Command, the Perez Prado Show, a financial success to insure compensation for Mr. Bouillet’s $23,000.00 investment in the show. This is a relationship that a prudent man in a position such as yours would not allow.

(b) In a letter dated 21 November 1956, from you to Mr. Bouillet, a close business relationship between you and Mr. Bouillet was disclosed in that you discussed with Mr. Bouillet financial transactions involving theatrical groups, the business outlook in general, and your tentative meeting with other agents (“Al, Dan, Herman and I”) to discuss future booking arrangements and assignments. In this letter you told Mr. Bouillet, “* * * Okinawa for example represents more than $7000.00 worth of bookins [sic], and I’m all set at this end, but no commitment from the Club Association as yet. * * *” and, “* * * Be assured that I will do every thing that I can from this end * * *” This manifests an unwarranted relationship with a commercial agent who was contracting with the U.S. Government.

(c) In a letter dated 21 November 1958, from you to Mr. Bouillet, you passed on information to Mr. Bouillet regarding financial profits and losses of certain theatrical acts from which Mr. Bouillet was due commissions; and further, you advised Mr. Bouillet that since some of the checks in payment of commissions due Mr. Bouillet were negotiable only in the Philippines, and that since you were going there, you would have them changed and remitted to Mr. Bouillet. This indicates that you performed favors for a commercial agent contracting with the U.S. Government.

(d) A letter dated 11 August 1958, unsigned, but obviously from Mr. Bouillet to a Mr. Dan Sawyer, a theatrical agent and later co-owner of Universal Productions also shown in other correspondence as Universal Promotions Tokyo, Japan, hereafter referred to as UP, a copy of which was found in your possession, discloses a discussion of financial arrangements and commissions between Mr. Sawyer and Mr. Bouillet, and also specifically mentions your name in connection with having sent publicity to you for specific shows mentioned in the letter. Concurrently, a letter dated 11 August 1958, from Mr. Bouillet to you, but addressed to you at what is reported as Mr. Dan Sawyer’s address, Central P.O. Box 619, Tokyo, Japan, discloses confirmation of the contents of the above letter from Mr. Bouillet to Mr. Sawyer as evidenced by the following partial quotes:

“* * * Informally Layden agreed to the following: * * * He will accept the Gabe Garland show for departure to Travis on 21 September. Dan Sawyer’s name will be included in the orders and you can schedule him as the advance man. Again, details and financial arrangements will be in Dan’s letter * * * At the same time I received your letter I got one from A1 Shattuck. He asked that if possible I send a small show over for him to handle, and said that he was trying to get in touch with you to square things away * * * I don’t know how you feel about this show for Al, but inasmuch as he has requested a small unit of maximum 6-7 people, I think it best to protect your own position from criticism by accepting it, so that Shattuck and Sawyer are both receiving some shows without our doing business entirely with one person * * *”

These two letters show that a specific bond, from a business point of view existed among yourself, Mr. Bouillet, and Mr. Sawyer, considerably removed from the scope of your official duties as PACOM Entertainment Coordinator, reflecting conflict of interest on your part.

(e) A letter dated 18 August 1958, from Mr. Bouillet to you reflects that you placed yourself in a compromising position in connection with your officially assigned duties. In this letter Mr. Bouillet tells you the following:

* * * I will probably go to California in the latter part of September and line up a show or two for an October or November departure providing you keep harping on the need. I think I can sell Coach (identified as Lt. Col. Layden, Special Services Officer, 1001st Air Base Wing, at that time Chief, Entertainment Branch, Special Service, DA, Washington, D.O.) on the idea of accepting another show or two before the end of the year if it comes from Calif, and does not use commercial transportation. But you must keep reporting on the shows you get and the need for more. Don’t be afraid to mention my name in your letters and pointing out the fact I know the market and can supply your needs without duplication. This is most important as Coach needs a reason for accepting so many shows from me and not anyone else. Of course I can always get other agents to submit my shows, but that is not the idea. It is best that too many people don’t get involved in the act or get to know the ropes or you have more situations like Fialkoff * * *”

(f) In a letter dated 20 July 1958, from Mr. Bouillet to you there is revealed a close working relationship •between Mr. Bouillet and yourself in connection with the selection and booking of Stateside shows for appearances under the auspices of the US Forces Special Services in the Far East and also for “indigenous consumption.” This letter, a copy of which was furnished to Mr. Sawyer, contains such detailed information concerning the proposed working relationship between yourself, Mr. Sawyer, and Mr. Bouillet, as to leave no doubt that you used your position as PACOM Entertainment Coordinator to enhance the financial gain of others.

(g) In a letter dated 24 November 1958, from Mr. Bouillet to you, he discusses entertainers, financial matters, and problems, in general, in connection with shows in which he had an interest. In this same letter, Mr. Bouillet’s displayed dissatisfaction with entertainers’ actions caused him to make the following remark: “If these God damn entertainers would only play ball they would come out a lot better off in the end.” Also, in a show of appreciation to you, Mr. Bouillet states: “I am glad you have explained the money situation about Gabe in the Philippines, and the commissions Dan owes me. I know you are not always aware of every little thing that happens and I certainly appreciate your interests on my behalf.” The foregoing is indicative of a more than casual business relationship and is beyond the requirements of your official duties as PACOM Entertainment Coordinator.

(h) A letter dated 19 January 1959, from you addressed to Mr. George DeBishop (identified as a theatrical agent), Bissmag Production, Bayview Hotel, Manila, discloses that you participated in financial transactions, utilizing your personal funds, and involving “Tex” (identified as Mr. Dan Sawyer) and “Mr. Rudas” (iden-tilled as Mr. Tibor Rudas, Manager, Rudas Shows), with whom you engaged in business while acting in your official capacity as PACOM Entertainment Coordinator; also that you participated as a commercial representative on behalf of “Showcase”, an entertainment unit represented by Bissmag Productions, scheduled for tour by you on Special Order Nr. D-295, dated 9 December 1958, Hq Fifth Air Force (PACAF), APO 925. Although reports indicated the show was a poor one and that clubs desired to cancel performances, you encouraged continuance of the show, which in effect, disregarded your responsibilities in this matter.

(1) In a letter dated 19 January 1959, to Mr. Tom Ball (identified as a theatrical agent), Moulin Rouge, 62 Sunset Boulevard, Hollywood, Calif, you transmitted information to Mr. Ball regarding your concerted efforts to assist in the departure from Japan of the “Efim Sisters” act on Northwest Airlines Flight 10 departing 7:00 PM, 20 January 1959.

(j) In a letter dated 20 January 1960, to Mr. Tom Ball, you advised Mr. Ball that you would query Mr. Sawyer about disposition of certain commissions. You further discussed certain negotiations with the manager of the “Gay Little Hearts”, a Japanese Show, and requested that Mr. Ball furnish you information concerning contract conditions, terms, and dates, so that plans could be finalized for the show’s proposed tour of the US. This information was furnished by you at the request of Mr. Ball in a letter dated 13 January 1960, in which Mr. Ball queried you regarding commissions for entertainment acts, the availability of the “Gay Little Hearts”, and confirmation with Mr. Sawyer regarding ■these matters.

(k) Your letter of 20 October 1960, to Mr. Tom Ball, Apt 18, 1710 Camino Palmero, Hollywood, Calif., discloses that you acted as an intermediary on behalf of Mr. Sawyer, then co-owner of UP, in that you negotiated with a commercial theater in Taipei for the acceptance of a show represented by Mr. Sawyer. It is evident from this fact and the facts outlined in paragraphs (i) and (j) above, that you were providing assistance to commercial agents in matters concerning financial arrangements and bookings of acts in no way connected with the US Forces Special Services; such activity was entirely divorced from the scope of your official position.

(2) During the course of a special investigation, on

9 February 1961, a Mr. William M. Cowl, US Civilian Commercial Entrant, 702 Awase Heights, Okinawa, Booking Agent, Keystone Entertainment Enterprises Company, Machinato, Okinawa was interviewed by authorized agents and revealed the following regarding your relationship with Mr. Dan Sawyer. The following quote is a portion of a sworn statement by Mr. Cowl:

“* * * During the time I was employed in this part time basis the question was raised many times regarding the possibility of Saylor having a financial interest in Universal both from official sources on an informal basis and from unofficial sources. On several occasions I had queried Saylor and Sawyer separately and together in this regard but both had always assured me that he (Saylor) had none. I vaguely recall that at one time I was directed by Sawyer to forward the sum of I believe, $500.00 to either Saylor’s mother or sister. The facts are not really clear except that it was a female relative of Saylor’s and when I questioned it both Saylor and Sawyer had stated that it was repayment of a personal loan that he, Sawyer, had negotiated from Saylor * * *”

This statement, in itself, reflects a business and financial relationship between you and Mr. Sawyer and/or UP that should not have existed considering your official position with the US Government.

(3) Minutes of a Special meeting of the Club Mana-8ers Association of Taiwan held on 29 November 1958 to lub 63, were also revealed as a result of this special investigation. The following extract is quoted in part:

“* * * Mr. Dan Sawyer explained to all clubs represented that the service Club Type Show has just recently been given full authorization by the Department of the Army and that the way such a show works is thus: * * * My relationship these shows is that of a road manager — I act as the agent for all government sponsored shows in the Pacific Command and am on orders to act as such. I either buy the show outright or work it on a commission basis in the service clubs * * * I have had over five years experience in the buying, booking and handling of all different kinds of shows. The prices I quote you will be based on the quality of the acts themselves. Most of you gentlemen are already familiar with the cost of a show and therefore I don’t see that any problems should arise in our getting together on a fair price for the shows * * *”

This is further evidence that Mr. Sawyer and/or UP had at this time, developed a monopoly in the booking of military sponsored shows in the Pacific Command, a monopoly which could not have developed without your assistance in your capacity of the PACOM Entertainment Coordinator.

(4) The investigation disclosed that you had in your possession a copy of an undated promissory note which evidenced your loan of $1500.00 from a Mr. H. Tucker Gratz. The note is quoted verbatim as follows:

“I hereby acknowledge indebtedness to Mr. H. Tucker Gratz in the amount of Fifteen Hundred Dollars ($1500.00) which I promise to repay in full on or before ninety (90) days from date of loan, 19 August 1960, plus interest at the rate of 3%% per month or 10% for the ninety day period.
RALPH E. SAYLOR
Subscribed and Sworn before me on date indicated
_1960_
WILLIAM A. McGINNIS
Lt Col., USAF
Judge Advocate”

In your official duty as PACOM Entertainment Coordinator, you arranged for the Falstaff Bowling Team to travel on military orders on a tour of the Far East, with Gratz (referred to in the above promissory note) as unit manager. _ Here, again you have placed yourself in a compromising personal situation in relationship to your official position, with regard to an individual with whom you were performing official business.

(5) Your relationship with Mr. Tom Ball is subject to further criticism considering your dubious dealings with him, as shown in paragraphs 2a(1) (i) (j) and (k) in this letter; evidence that you borrowed $3100.00 from him; and a statement by him in a letter to you which is quoted as follows: “Ralph — with my money and your knowledge — we should make quite a few dollars together over the next 2 or 3 years — but I must insist — that my money not be used to back any other deals — ”.

(6) The investigation disclosed that you had in your possession an original letter from UP granting you authority to represent UP and enter into negotiations on the company’s behalf. The letter is quoted verbatim as follows:

“August 11, 1959
“TO WHOM IT MAY CONCEEN:
“This letter is to certify that Mr. Balph Saylor is authorized to represent UNIYEBSAL PEOMO-TIONS INC. of Tokyo, Japan and to enter into negotiations of the company’s behalf. Any assistance given to Mr. Saylor will be greatly appreciated.
Thank you very much.
Sincerely,
UNIYEESAL PEOMOTION
Howard Dan Sawyer
Director

This authorization, in view of the foregoing evidence of your association with Mr. Sawyer, in this charge, is evidence that you were, in fact, an agent of UP, in direct conflict with your assignment as PACOM Entertainment Coordinator.

b. That from February 1958 to the present time you engaged in commercial activities (import-export) without prior approval from your commander, a direct violation of PACAF Eegulation 30-2, 13 July 1956, PACAF supplement 1 to AFE 34-21, 11 August 1960, and USAEJ Circular 600-1, dated 3 September 1960. Evidence from personal letters legally seized from you and reproduced for file by special agents indicates that you were engaged in commercial activities for which there is no record of command approval. The following are excerpts and/or summaries of these letters that shows your commercial activities with Litwin and Sons, Inc., 114 West Sixth St., Cincinnati 2, Ohio, hereafter referred to as Litwin, while acting in behalf of Westpac Corporation, C.P.O. Box 1432, Tokyo, Japan, hereafter referred to as Westpac:

(1) In a letter dated 21 February 1958, unsigned but identified as being written by you, to Litwin, you told Litwin that you had sent samples of goods for his inspection and remarks. You also told him that you had made some new contacts with influential men in Japanese governmental offices and with manufacturers in Japan, and invited Litwin to engage in import-export activities.

(2) In a letter dated 23 February 1959, from Litwin to yon, Litwin requested that you send them an itemized list of the expenses you had incurred in regard to recouping your investment in the export business. Litwin requested that you have an unidentified transistor radio company make up two hundred radios with the name “Ellis” on the face of the radio for shipment to Litwin. Litwin requested that you negotiate with a Mr. M. Nishoika, President of the Ashahi Pearl Co. regarding past and future pearl purchases, and that as your commission you were to receive 20% of cash' discounts afforded Litwin. Since these cash discounts were granted to American importers who were physically located in the country of the exporter and since Litwin requested that you pick up these discounts, it is obvious that you were acting as an agent and/or representative for Litwin in this respect.

(3) In a letter dated 8 September 1959, from Westpac to Litwin, a copy of which was furnished you, Westpac transmitted instructions, received from you by telephone, concerning the name change of a certain transistor radio. Westpac informed Litwin that they hoped Litwin’s affairs will he handled satisfactorily during your absence.

(4) In a letter dated 14 September 1959, from Westpac to Litwin, a copy of which was furnished you, Westpac acknowledged receipt of Litwin’s letter of 9 September which contained a check for $777.00; this letter was addressed to your attention. Westpac discussed business further and ends the letter with, “No doubt Ralph Saylor will ’be here by the time we receive your further instructions and he will be able to act accordingly.”

(5) In a letter dated 16 October 1959, from Litwin to Westpac, your attention, Litwin acknowledged your letter of 13 October concerning transistor radios, discussed a problem regarding cancelled orders from Yamada, and suggested you contact Yamada to negotiate acceptance of cancelled orders (to promote good will), and future lower prices. Litwin closed this letter with, “This would be a good time to impress upon Yamada what ‘nice guys we are in Cincinnati’, in that we don’t want them to lose money. This might make for better relations later on if goods gets real tight.”

(6) In a letter dated 1 December 1959, from Litwin to you c/o Westpac, Litwin acknowledged your letter of 6 November which contained a tabulation of an amount due and suggested that you transmit those amounts to your own Stateside checking account, and when accomplished, notify Litwin.

(7) In a letter dated 1 February 1960, from Litwin to you, c/o Westpac, Litwin advised you regarding negotiation, delivery, etc. of various types of radios and record players, ,and submitted 'to you in [sic] an order for two thousand 9-volt batteries.

(8) In a letter dated 16 February 1960, from Westpac to Litwin, over a Mr. Joseph Barnes’ signature, a copy of which was furnished you, Westpac forwarded Litwin pictures and information concerning radios and manufacturers and closed the letter with, “Ralph should be back shortly and will be able to handle matters. Best wishes.”

(9) In a letter dated 8 March 1960, from Litwin to you, c/o Westpac, Litwin acknowledged your letter of 4 March and told you that you should not absorb a price increase of 250 per radio but that you should get it out of the money you were holding for them. Litwin further discussed business relevant to various types of radios, table lighters, and transistor phonographs.

(10) In a letter dated 14 March 1960, from Litwin to you, c/o Westpac, Litwin requested you extend available courtesies to a Mr. and Mrs. Irving Greenfield, Sr., who were to be in Japan on a tour beginning 22 April 1960. Litwin advised you that Mr. and Mrs. Greenfield were told of your connection with the Litwin firm and that since Mr. and Mrs. Greenfield were related to the writer of this letter, by marriage to his brother, you were to treat them as members of the family.

(11) In a letter dated 31 March 1960, from Litwin to you, c/o Westpac, Litwin submitted to you an order for an additional 1000 6-transistor radios and furnished delivery instructions for same.

(12) In a letter dated 7 April 1960, from you to Litwin, you advised of the status of the shipment of 500 Ellis radios from Yamada and of your negotiations with Yamada regarding certain prices. You requested instructions regarding style desires of Litwin and advised of delivery of radio-phonographs.

(13) In a letter dated 27 April 1960, from Litwin to you, c/o Westpac, Litwin discussed financial transactions regarding various types of radios and radio phonographs and stated that with your agreement they would set up a letter of credit for $1,650.00 for the radio phonographs.

(14) In a letter dated 13 June 1960, from Litwin to you, c/o Westpac, Litwin acknowledged receipt of your letter of 8 June, informed you of an extension, granted at your request, of a letter of credit, requested samples of radios be airmailed, and closed with, “Several months ago we wrote yon requesting an accounting of the money that you are holding for use and how you can make arrangements to transfer it to us. When you were in the States last summer you thought that perhaps your Father could send us what was due. Can this be worked out?”

(15) In a letter dated 25 August 1960, from Litwin, to you, c/o Westpac, Litwin explained a cable previously sent you asking your confirmation of certain orders and furnished you additional orders.

(16) In a letter dated 12 October 1960, from Litwin to you, addressed to your official duty assignment, Lit-win refers to your telephone conversation with Litwin of the previous day and notified you of amended letters of credit, notification of which by that time you should have received from your bank.

(17) In a letter dated 17 October 1960, from you to Litwin, you acknowledged receipt of the amendments to the letters of credit referred to in letter cited in para (16) above, and explained to Litwin possibility of errors concerning instructions contained in the letters of credit. You also advised Litwin that you would air mail samples of a new 7 transistor (single band) radio and that you could get 100 sets or so airshipped to arrive about 20 November if Litwin were interested.

(18) A letter dated 1 November 1960, from you to Litwin contains such detail information that a portion is quoted here verbatim:

“As the LC for radios still reads 200 TIMES and 450 ELLIS, we’re going ahead with the shipment and will have to negotiate the LC which will be accomplished between banks. In order to ship, I ■had to deposit an amount equivalent to amount of negotiation until negotiation has been successfully completed. Please advise your bank to expedite authorization for payment.
“Upon settlement of the negotiation I’ll forward a current statement. The dollar-yen rate fluctuates slightly every day, so an exact figure can only be determined upon actual settlement. By the first of next week, I’ll airmail a. sample of. Times new. 7 transistor. If you are interested in this radio, believe we may be able to obtain a quota on the basis of a letter from you to us, stating that you’re interested in becoming exclusive distributor for this radio (using either TIMES or ELLIS) for a specified area. Perhaps Ohio would be enough, but a larger area perhaps would be desirable. Letter should indicate a desire to receive a given quantity such as 100-200 sets per month. Also. most important this radio is made to Grade A specifications and will pass an “A” inspection. This letter of course will not be binding for the quantity mentioned or for that matter, any quantity, but there apparently will be an excellent chance to obtain a direct “free” quota from MITI which beats paying $1.00-$1.50 per set quota. We will be able to ship this radio for approximately $10.25, an [sic] any case under $10.50 if we obtain a quota. The 7 T radios in our exchanges here sell for $17-22.”

3. You have the right to answer this notice of proposed adverse action personally and in writing, and to present any and all evidence, affidavits, and witnesses you may desire on your behalf to the undersigned in Eoom F 108, Wing F, Annex Building, South Camp Zama, within ten (10) working days from the date of your receipt of this notice. Mr. Tomao, Placement Specialist, Office of the Civilian Personnel Director, Headquarters, United States Army Japan, APO 343, telephone Zama 3-2398, will make such pertinent regulations and records available as you may require in preparation of your reply.

4. Careful consideration will be given to your reply, if any, and you will be given a written notice of the final decision.

5. You will be continued in a duty and pay status during the period fixed by this notice.

6. It is requested that you acknowledge receipt of this letter on the carbon copy by signing and entering the date on which this notice is received. You are requested to return the receipted copy to the undersigned within twenty-four (24) hours from the time of receipt.

CONCLUSION OK Law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and judgment is entered to that effect. The amount of recovery will be determined pursuant to Eule 47 (c). 
      
       The court acknowledges tlie contribution of Commissioner William E. Day, substantial parts of whose opinion we have incorporated. We take the same view of the case as he did.
     
      
       The “Authority to Search” read as follows in fuU text:
      “authority to search
      Fuehu Air Station, APO 925 (Place)
      30 November 1960 (Date)
      “Authority is hereby granted to Special Agent(s) JOSEPH A. LARIVIERE, ELLSWORTH W. VIAU, Office of Special Investigations, to search, in the course of (their), investigation into Misconduct and/or Alleged Fraud with
      (Nature of offense under investigation)
      the necessary and proper assistance, (the person) the *the automobiles license #’s 3E6768, 3E6769 and quarters located at 117-D, Washington Heights, Tokyo,
      (Exact Location)
      Japan of Ralph E. Saylor, DAC Office of Special Services, Hq USARJ, APO (Person being Searched) (Organization and APO)
      343 and to seize any property pertinent to such investigation.
      Walter J. Wilson_
      (Signature)
      Walter J. Wilson
      Colonel, 7238A, Pep Comdr for Admin (Grade, Service No., Title)
      Hq 6000th Support Wing, APO 925
      (Organization and APO)
      “♦Insert dwelling, room, automobile, footloelrer, etc., as applicable. Describe in detail the property to be searched where necessary for proper identification.”
     
      
       “No person subject to this code may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to malee any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.” 10 U.S.C. § 831 (1964).
     
      
       It is not asserted that the search of the plaintiff’s desk in his Government office violated his constitutional rights. He signed a consent to such a search. However, since the papers removed from the desk could not he separately identified from those which were taken from the quarters and the automobiles, all of the documents seized from all places must be considered as having come from the home and automobiles.
     
      
      
         The defendant cites the portion of tlie Manual which, provides (Manual for Courts-Martial, united States, 1951, ¶ 152, pp. 288-89) : “The following searches are among those which are lawful: * * * A search of property which is owned or controlled by the united States and is under the control of an Armed Force, or of property which is located within a military installation or in a foreign country or in occupied territory and is owned, used, or occupied by persons subject to the military law or to the law of war, which search has been authorized by a Commanding Officer (including an Officer in Charge) having jurisdiction over the place where the property is situated or, if the property is in a foreign country or in occupied territory, over personnel subject to the military law or to the law of war in the place where the property is situated. The Commanding Officer may delegate the general authority to order searches to persons of his command. This example of authorized searches is not intended to preclude the legality of searches made by military personnel in the areas outlined above when made in accordance with military custom.”
     
      
       Earlier, the Court had voided Article 2(11) insofar as it related to civilian dependents of servicemen charged with capital crimes. Reid v. Covert, 354 U.S. 1 (1957). In Kinsella, v. United States ex rel. Singleton, 361 U.S. 234 (1960), the Court extended that holding to non-capital cases. Under the Court’s decisions in 1957 and 1960, the Code is inapplicable to any civilian serving with, employed by, or accompanying the military abroad in peacetime.
     
      
      
        G-uagliardo, Grisham, and Singleton were all decided by the Supreme Court on January 18, 1960. The search of plaintiff’s home and automobiles occurred some eleven months later, on December 1, 1960.
     
      
       These cases, and others, show that we have passed beyond the argument that the Fourth Amendment has no application at all overseas. See, also, Best v. United States, 184 F. 2d 181, 138 (C.A. 1, 1950), cert. denied, 340 U.S. 939 (1951) ; United States v. Grisly, supra, 335 F. 2d 652, 656 (C.A. 4, 1964).
     
      
       The opinion said (184 F. 2d at 188) : “For example, suppose A, a citizen of the united States, goes to Germany to take employment in a civilian capacity under the High Commissioner [for occupied Germany]. He is suspected of having previously transported stolen goods in interstate commerce, in violation of 18 U.S.C.A. § 2314. Agents of the F.B.I., •without any search warrant, break into A’s dwelling in Germany, ransack the place, find and seize the alleged stolen goods, upon a subsequent prosecution of A in the United States for that offense, it can hardly be doubted that the evidence so obtained would be excluded as the product of a search and seizure forbidden by the Fourth Amendment. And this would be so, even though no judicial officer had been authorized to issue a warrant for a search in occupied Germany.”
     
      
       Tie Government cites the Fourth Circuit’s observation that “in. some contexts the military must and does have authority to conduct searches without probable cause” (335 F. 2d at 655), but it is obvious that the court was not saying either that (i) in no instance would probable cause be necessary (the opinion suggests the opposite a few lines previously), or (ii) the same standards apply to civilians as to servicemen (the whole opinion dealt only with the rights of the latter).
     
      
       The letter of appeal then specified various points (not including the Fourth Amendment violation) as “additional matters” “in addition to all of the foregoing grounds for this appeal.”
     
      
       Defendant’s strongest argument (on this aspect of the case) is that, if the Fourth Amendment question had been presented to the grievance board, management might have been able to separate out the documents taken from the office (see footnote 3, supra), and then base its action solely upon those materials. There is no reason to believe that this could any longer be done at the time of the grievance hearing which was held more than six months after the search; the Jumbling of the papers had occurred at the time of the search. In any event the Civil Service Commission’s hearing was de novo, under Section 14 of the Veterans’ Preference Act, and the Commission could have performed the same task of separation (with the help of the Army and Air Force) if it was ever possible to do so. The Army and the Air Force were alerted to the point by plaintiff’s prior appeal to the Commander-in-Chief, United States Army, Pacific.
     
      
       The Board of Appeals and Review may possibly have meant that its jurisdiction was restricted to violations of the Veterans’ Preference Act, of the Commission’s regulations, and of the agency’s own regulations, hut would not encompass violations of constitutional rights. Such a ruling would have been erroneous since, as pointed out above, the Veterans’ Preference Act implicitly excludes the use of evidence illegaUy seized. If the Board meant that it could not consider the point because the regional office’s written decision did not advert to it, that, too, would have been wrong since (as shown above) the plaintiff raised the issue before the regional office and was entitled to a resolution.
     
      
       The chairman said, among other things:
      *****
      * * * “Hearings are intended to develop and clarify those areas which remain in dispute following attempts to resolve a grievance to the satisfaction of all concerned through earlier handling of the case.” The earlier handling in this instance is contained in this presentation (indicating file) which everybody received or everybody should have received at least one week ago. (Continuing to read) : “Hearings are not held for the purpose of completely developing a case; factual matters which have been developed previously should be reviewed, but only as an introduction to the hearing proper. Accordingly, hearings serve primarily as a means for assembling additional information or testimony to supplement an existing record.
      “Hearings will be conducted in such a manner as to encourage open and frank but orderly presentation and discussion of relevant facts. Legal rules of evidence used in courts of law will not be observed.”
      The purpose of the hearing was contained in the letter of notification that was distributed to the members of the committee, to the employer, the employee ; included in this letter is the actual statement by the employer of his intention to remove, the employee’s reply, supported in the file by the facts presented by both sides.
      I must also advise the committee members prior to opening the presentation that it is their responsibility to act as a fact-finding body and avoid any semblance of a trial or prosecution, interrogate all individuals concerned in such a manner as to obtain all relevant and material facts necessary for completion of the record, determine the relevancy of all evidence introduced at the hearing, and exclude that which is deemed irrelevant. * * *
     
      
       The provisions of this portion of Civilian Personnel Regulations have not been called to the attention of this court. In this court the defendant has made no point of the plaintiff's “forfeiture of rights” to further consideration within the Army.
     