INTRODUCTION TO MILITARY LAW

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INTRODUCTION TO MILITARY LAW

• WEEK 11
• Pretrial Confinement
• Article 31 v. Miranda
• Search and Seizure

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This Week

• Is there bail in the military?
• How does Miranda apply or does it?
• Search and Seizure
• 4th Amendment
• Inspections
• Right of Privacy?

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Pretrial Confinement/Restraint

• Is there bail in the military?
• Jail opportunity very limited
• Extra options available
• Conditions on Liberty
• Orders directing a person to do or refrain from a
  specified act
• Restriction in lieu of arrest
• Moral restraint by oral or written orders
  perform duty
• Arrest
• Restraint by oral or written orders no duty
• Pretrial Confinement
• Physical restraint

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Pretrial Restraint

• Must have Probable Cause to order any form of
  pretrial restraint
• Offense triable by court-martial
• Person restrained committed offense
• Restraint ordered required by the circumstances
• Pretrial Confinement Most severe form
• RCM 304
• Same PC requirement
• Lesser forms of restraint must be inadequate
• Additional due process requirements

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Pretrial Confinement Procedures

• Rights advisement promptly
• Nature of offense
• Right to remain silent
• Right to retain civilian counsel
• Procedures for review of confinment decision
• Three Mandatory reviews
• 48 hour PC determination
• Usually by individual commander must be neutral
• 72 hour Commanders memo
• Usually same as 48 hours is CC is neutral
• 7 Day review
• Appointed Magistrate
• Non-adversarial
• Standard for review
• Release or keep confined
• Cant set limits on release

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Pretrial Confinement

• Mandatory review by military judge
• Once sent forward to trial
• Upon motion by defense
• Abuse of discretion standard
• If prisoner released CC cant send back
• Unless additional misconduct

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Confinement Credit

• Allen Credit 1 for 1 credit against sentence to
  confinement
• US v. Allen - 81 days prior to trial
• Mason Credit 1 for 1 credit for pretrial
  restraint tantamount to confinement
• Article 13 Credit Unlawful pretrial punishment
• Intentional pretrial punishment
• Pretrial confinement conditions more rigorous
  than necessary to ensure presence at trial
• Does not require jail and can be multiple day
  credit in discretion of military judge
• US v. Mosby
• pretrial detainee placed in maximum
  custody/solitary confinment based on seriousness
  of offense
• Military judge - no intent to punish and no
  infliction of unduly rigorous circumstances
• Burden on accused to show entitled to additional
  credit
• Court affirms - no intent to punish therefore no
  credit
• US v. Fischer - pay stopped while in pretrial at
  ETS
• Various sex offenses with minors
• Alleged Article 13 violation
• If acquitted, would be reimbursed
• No intent to punish and application of policy
  reasonable - no violation

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Confinement Credit Continued

• RCM 305 Credit Failure to comply with
  procedural requirements
• 1 for 1 but in addition to Allen credit
• If no confinement adjudged, can apply credit to
  other portions of the sentence
• Confinement starts speedy trial clock

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Article 31 v. Miranda

• MRE 304 Confessions and Admissions
• Involuntary? Not admissible (and your little dog
  too!!)?
• No rights
• Coercion
• Promises of immunity
• Mind Games
• Deception permissible only after waiver
• Unlawful command influence
• Burden shifting to prosecution to prove
  voluntariness

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Article 31

• Article 31
• Does 3 things
• Prohibits compelled self-incrimination
• Imposes a warnings requirement
• Excludes involuntary statements from
  court-martial
• When? Who? Where?
• Does not address right to counsel
• When not required?
• Non-testimonial acts
• Handwriting/voice exemplars
• Urine/blood sample
• Consent to search
• Remedy for violation? Exclusion

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Right to Counsel MRE 305

• 5th Amendment
• Custodial interrogation
• Miranda v. Arizona
• Unequivocal request? Stop!
• Accused can reinitiate
• Break in custody before waiver
• 6th Amendment
• Counsel in all criminal prosecutions
• Attaches at initiation of adverse judicial
  proceedings
• Preferral of charges
• Offense specific
• Prosecutorial forces of an organized society and
  their minions are barred from initating contact
  after invocation
• Neither custody or coercive inlfuences are
  required

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Article 31 Cases

• US v. Duga
• Facts
• Amn Byers - SF member questioned by OSI about
  appellant
• Amn Byers and appellant social acquaintances and
  same rank
• Amn Byers on duty, met appellant on bike, engaged
  in conversation and asked what he was up to
• Appellant provided incriminating response then
  Amn Byers asked follow up question
• No Article 31 warnings - alleged at trial and on
  appeal
• Court did not fall within purview of Article 31
• Purpose of Article 31 - provide service members
  protection necessary because of subtle pressures
  of military society
• Only applies to situations where there may be
  pressure on an individual to respond
• Not done in an official capacity - not acting on
  behalf of OSI
• Motivated by his own personal curiosity
• Appellant did not perceive interrogation as
  official in nature

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• US v. Ravenel
• Premeditate murder/adultery
• Accused intervened in domestic between Covin and
  spouse - held Covin until Gaines assisted spouse
  in leaving
• Ravenel left apartment and took bat with him,
  going to MP station
• MPs responded and found Covin lying on floor -
  died with 3-4 minutes
• CID interviewed Gaines, Covin and spouse then
  Ravenel
• Questioned as witness - did not suspect him
• Agents later collectively decided to warn and
  requestion same day and then three days later
• Court Should have warned after initial
  admission of assault
• Court Does Article 31 precisely parallel 5th
  Amend?
• Article 31 is broader and is applied differently
  (Oregon v. Elstad)?
• Presumption of taint applies to all subsequent
  interrrogations following unwarned questioning
• No cleansing statement - same investigator -
  unwarned admission referenced in subsequent
  interviews
• Remanded - decide sufficient attenuation

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Search and Seizure

• First 4th Amendment APPLIES to the military (US
  v. Ezell, 6 MJ 307 (CMA 1979))?
• Some exceptions made by rule
• US v. Stuckey, 10 MJ 347 (CMA 1981) That is
  not to say, however, that in its application
  it does not take into account the exigencies of
  military necessity and unique conditions in
  the military
• Military commanders power to authorize searches
  is independent of the Warrant Clause of the 4th
  Amendment
• No oath/affirmation requirement
• Must be based on PC (MRE 315)?
• Limitations on use
• Searches governed by MRE 311 317
• Normal 4th Amendment analysis applies

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• Overseas Application
• Not applicable to searches by foreign officials
• Unless US agents participated in search
• Direct contribution
• Not mere presence, interpreter, routine
  furnishing of information
• If US participation, normal 4th Amendment
  standards apply
• If no US participation, standard is gross and
  brutal maltreatment regardless of compliance
  with foreign rules
• No standing to complain of violation of
  international treaties or international law

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• Expectation of Privacy
• In general, same rules apply - MRE 311
• Standing based on expectation of privacy in the
  area to be searched and has a legitimate interest
  in property to be seized
• Expectation of privacy in military may be greatly
  diminished (US v. Middleton, 10 MJ 123 (CMA
  1981))?
• None in common areas such as dorms, unlocked
  locker in common work area, use of drug dogs in
  parking lots and hallways, etc
• Government property mostly caselaw
• Reduced expectation in barracks room
  (inspections)?
• 4th Amendment applies to government quarters
• Office reduced expectation of privacy

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Types of Searches

• Probable Cause
• MRE 315
• Civilian Search Warrant
• Search Authorization
• Express Permission
• Written or Oral
• Competent military authority
• Scope
• Power to authorize
• Commander
• Military magistrate
• Military judge
• Process
• Exigent circumstances

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Types of Searches - No PC required

• Entry/Exit of installation
• Search of Government Property
• Consider personal expectation of privacy
• Consent
• Oral or written
• Scope
• Withdrawal
• Article 31 not required
• Stop and frisk
• Incident to apprehension
• Inspections - a different beast

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Inspections - MRE 313

• Not considered a search under 4th Amendment
• Examination of whole or part of a unit,
  organization, vessel, aircraft
• Incident to Command
• Primary purpose is ensure security, fitness or
  good order and discipline
• Includes examination to locate and confiscate
  unlawful weapons or other contraband
• Order to produce bodily fluid is permissible
  under this rule (urinalysis program)?
• Inspection with primary purpose of obtaining
  evidence for use in court is not an inspection

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Inspections Continued

• Conducted in a reasonable fashion
• Everyone treated same - no different intrusions
• Cant pick specific people
• Mixed purpose is OK - primary purpose must be
  unit readiness
• With or without notice
• Not required to be in writing
• Better practice put in writing to document
  purpose and procedures
• Weapons, contraband, evidence may be seized
• Stop and get search authorization
• Those executing may have some discretion
• Gate inspections and urinalysis program

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• US v. Hayes
• Barracks security inspection
• Upon entry
• Contents of box
• Sign in/Sign out and logging of handcarried items
• Instituted by commander
• Discovered stolen property
• Objected to admission
• Court Primary issue was scope limited in
  accordance with legitimate governmental purpose
• Purpose - secure living environment
• Appellant aware of procedures
• BUT lacking information regarding level of
  discretion, results of refusing the search
• Recognizes military must possess substantial
  discretion over internal discipline
• BUT prosecutors must demonstrate the command
  interest and methods
• RESULT suppression

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Lawful but not useable

• Commander directed urinalysis or other search
  (MRE 312)?
• Does not fit any recognized exceptions to PC
  requirement
• Based on reasonable suspicion not probable cause
• Cant be without cause
• order as part of inspection is not commander
  directed
• Violate 4th amendment but lawful
• UCMJ, regulation and courts limit use to
  administrative action
• Exclusionary Rule - MRE 311
• Unlawful search or seizure exclusion

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Computers

• No expectation of privacy in email stored on
  government computer system
• monitor v. search
• Log on Banner
• Sys Admin can monitor system for security
• Balance between providers needs and users
  privacy
• If offense discovered, SA must report incident
  and not engage in any independent investigation
• SA cant be agent of law enforcement
• Must get warrant/authorization or permission from
  Designated Approving Official for network
  search
• No reasonable expectation of privacy

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Computers

• PC or virtual private drive requires
  authorization/warrant
• Member has a reasonable expectation of privacy
• Employer can search if no merely to obtain
  evidence and search is justified by work purpose
  and reasonable in scope
• Commander directed monitoring of specific email
  and internet accounts is impermissible without
  authorization
• Seizure v. Search of computer
• Can seize but not search without authorization
• House analogy

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US v. Long

• 2006 - expectation of privacy in emails stored on
  government computer system
• Drug use case - SA retrieved emails from system
  at direction of IG investigator looking into
  improper relationship between accused and an
  officer
• Emails seized solely for law enforcement purposes
  and went beyond work related monitoring (OConnor
  v. Ortega application)?
• Subjective and Objective reasonable expectation
  of privacy
• Banner qualified expectation but did not
  extinguish it - password language of banner
• Qualified with unique aspects of military
  environment
• GC Opinion

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NEXT WEEK

• Courts-Martial
• Types and process