United
States v. Davis, 56 MJ 299 (the lawfulness of an
entry
depends on authorization, negative or positive, express or implied and
must be
determined based on the circumstances in each case; seven factors are
relevant,
but not exhaustive, to this question: (1) the nature and function of
the
building involved; (2) the character, status, and duties of the
entrant, and
even at times his identity; (3) the conditions of the entry, including
time,
method, ostensible purpose, and numerous other factors of frequent
relevance
but generally insusceptible of advance articulation; (4) the presence
or
absence of a directive of whatever nature seeking to limit or regulate
free
ingress; (5) the presence or absence of an explicit invitation to the
visitor;
(6) the invitational authority of any purported host; and (7) the
presence or
absence of a prior course of dealing, if any, by the entrant with the
structure
or its inmates, and its nature).
(an entry is "unlawful" if made without the consent of any person
authorized to consent to entry or without other lawful authority; the
word
"authority" is one upon which the very nature of a military
organization is based and carries with it the notion that implicit in a
grant
of authority is the understanding that it will be exercised for proper
purposes).
(under the facts of this case, authority to access a key to enter a
warehouse carried with it an implicit obligation to enter the warehouse
for an
official or proper purpose and only to access the segregated area under
the
unit’s responsibility where: (1) there was evidence that the equipment
in the
warehouse for which appellant’s section was responsible was segregated
from the
lodging section’s equipment; (2) while appellant indeed had a key to
the
warehouse to gain access after hours, his officer-in-charge testified
that
there was no official need for appellant’s entry at the time in
question; (3)
the officer-in-charge also testified that he never authorized appellant
to
enter the warehouse for any purpose other than official business,
suggesting a
usual course of dealing with respect to access to the warehouse; and
(4) the
officer-in-charge further testified that his section did not have
authority
over any portion of the warehouse other than that part containing his
section’s
equipment).