Does the Fourth Amendment Apply to the Armed Farces?

• Author: Colonel Fredric I, Lederer Lieutenant Colonel Frederic L. Borch
• Pages: 03

1. Introduction

   It is apparent that the protectzons in the Bzll of Rsghis, except those which are erppressly or by necessary imphcatzon inapplicable, are amilable to members of OUT amed joorces. 1

   With this statement, the Umted States Court of Appeals for the Armed Forces2 iCAAF) recognized the applicabihty of the Bill of Rights to the armed forces Iromcally, despite the importance of this matter, the Cnited States Supreme Court never has confirmed thls holding Insofar as the Fourth Amendment is concerned, this situa~ tion was highlighted recently by an unusual exchange among four members of the CAAF in L-nited States v. Lopez In the process of extending to commanders4 a "good faith exception" to the Faunh Amendment exclusionary rule. four of the five judges dlscuwedand potentially disagreed about-the applicability. or the nature of the applicabihty, of the Fourth Amendment to the armed forces

   *This article ongnall) appeared m 3 Y X &MAR> BlLL RTS J 219 Il984) The

   authors haw expanded the Bn1Cle however to lncurpmate repent deielopmenrs

   "Profewr of Law. \larrhall-Wylhe School of Law of the College of silllam & Mary .4 colonel ln the Judge Advocate General's Carps Umted States Army Reserve he wm the prrapsl aufhoi of the khhfary Rules of Evrdence (\IRE) discussed m this anlcle

   ".Judge Advocate General i

   Corps. United States Army Current13 wigned to the Criminal La% Dlrisian, Office of the Judge Advocate General Lieutenant Colonel Borch IS a member af the Wb'orkmg Oloup. Jolnt Senlcei Committee on Mihtar) J"3rlCe

   LLnit~ri Fmtpr Y .lamby, 29 C M R 244, 246-47 (C M A 1960)

   ZFormerl) the Lnlted States Coun of \Ilhmry Appeala (COhI.4) Note that onOctober 5, 1994 the Preildent rimed info law Senate BIU 2182. Defense Authorlza tion Act for nscal Year 1995, ahich redesignated the COMA as the United States Coun of 4ppeala for the Armed Forcer (CAAF) See Nm I

   Def Aurh Act far Rrcal

   Year 1995 Pub L So 103-337 108 Stat 2663 2831 (To be codified at 10 C S C 3 9411

   Lopez t h u poses a fundamental question of constitutional law: Does

   the Fourth Amendment apply to the military, and, if so, haw?6

   In her lead opinion in Lopez, Judge Crawford wrote that the Manual far Courts-Martial'se adoption of the good faith exception was "an implicit recognition that the Supreme Court has never expressly applied the Bill of Rights to the military, but has assumed they applied."7 In support of that proposition, Judge Crawford's footnote contained the following quotation:

   Scholars have differed as to whether the Bill of Rights does apply to the armed forces. Strangely enough, in one sense the question remains open. Although the Supreme Court has assumed that most of the Bill of Rights does appiy, It has yet to squarely haid it applicable a

   *One mlghf loosely divide searches and ~elzures m the armed forces into two categone~ traditional law enforcement type aeiivities and inspections In the form-case, millfsrs law lg very rlmilar IO that apphed daily in the nation's eiviIian courts with perhaps the unique element that Otherwise "~mpalfld' mlhtw commanders may Cant search aufhonzsfi0ns--lh8f 1%. wamanf~--an B showing of probable cause Id. hlL R. EWD. 316. see alro Id. hlr R Ella 314 (nonprobable cause searches) Mttitan mspecfms, as one might expect. me numermi In addition to inspections for personnel BCCoUntahihfy, condition of personal equipment, and health and welfare generally, mlhfary ~nspeetians C B ~ extend Io rearches for weapons and drugs. Although the location and remaud af drugs often ~sjuetilied on the sounds of the health and welfare of all personnel affecled--to 38s nafhrng of ml~ion

   BCCompbbhmenf-Lederer & Lederer, Monluana h g S~oichas .4fter Lh'nisd States 2_ inrue.ARIlr LA- . Dec 1973, at 6. the rerulfmg scope 11 far broader than ordinanly would be countenanced in Ciniian ~oeiely In large measure. this article will concentrate on mhtary inspections, for even rf the Fourth Amendment applies to military searches and remrea for tiadnmnal. nonmission eisentid. law enfarcemeni purpores. It IS hlghls Llkely that inspections are either ouraide the ambit of the Fourth Amendment or 'reasonable'' searches iithin Itn meaning

   Manualim Courlg-Martial is an executiie order issued by the PresidenT PYlSUBnI to bath the President's Cmstanfmnal aufhoriry 8.

   Commander-m-Chlef and

   Article 3 W of the Uniform Code of Military Justice IECMJ), shieh provides

   PretnaJ. trial, and post trial procedures, including modes of proof far cases arising under this chapter triable in eourts-martid, mihtzq corn-mtssmns and other mlllfw LrlbunaJs, and procedures for courts of 1n4YIry may be pcescnbed by the President by regulations which shall. so far as he conxiders pcBEficable, apply the pnnelpies of I_ and the rules of e\ ldenee Senerally reeognlzed 10the trial of cnminal c8.e~in the

   Unlted States diifncl courts, but which may not be contrary to or incon-sistent wirh this chapterUCMJ M 3Ka) (19881. In 1880 the President promulgated the Mllltary Rules of Evidence (MRE) The traditional eiidentiary pronnms aye nearly Idendcal to the Federal Rules of Evidence. albeit with B pnvllege eodificatlon However, the MRE allo eontam a uruque eadrfleatlon of the law of search and ~elzure, mrerrogarmn, andeyewltneir Idenfifkafmn. Bindmg iatherthsn expa~itory,the Jeareh and semnre rules were designed in particular to supply certainty and predafabhty in those areas NU-tlnel" affect,"* la* enforcement aeflvltlen

   Chief Judge Sullivan. although concurring in the resuit in Lopez, disagreed wth Judge Crawford's comments about the Fourth Amendment and the Bii1 of Rights. The Chief Judge wrote:

   I reject the suggestion 01 even the unintended implication of the opinion that Manual rules provide the exclusive protection to service members from unreasonable searches and Seizures. Consequently, I could not find the purportedig less demanding Manual rules dispositive of the accused's Fourth Amendment claims Instead, it is only where these !d.lanual rules fully satisfy the demands of the Constitution and the Bill of Rights as applied in the military context that resolution of the accused's claims on this basis would be appropnate

   Despite the Chief Judge's strong language, his position has, at most, limited support. He cites only a plurality opinion in B u m F.Wilson'o and two Supreme Court remands to the CAAF ordering that court to reconsider those cases "in light of" specified Fourth Amendmenr cases.11 Consequently his conclusmn that "the Supreme Court's express direction to consider those cases on the basis of its decisions applying the Bill of Rights contradicts the Implication of Judge Crawford's opinion that these most precious and fundamental rights might not at all be available to American service members"l2 may be accurate. but It need not be.

   As Chief Justice Rehnquist noted m Cnnited States v Verdugo Ur"rpuidez,l3 in determining whether the Fourth Amendment applied to a search and Seizure of a nonresident alien outside the United States

   The Coun of Appeals found some support for its holding m our decision in I% L. Lopez-Mendoza, where a maprity of Justices assumed that the Fourth Amendment applied to

   niopez, 3511 J at4S(Sulhvan C J coneurnng),0346 E S 137 (1053) died tn Lopez. 35 11 J at 48 (holdmg that federal ClYll

   'LLnper. 35 \I J at 48 (citing Goodson t, Umted States. 4il U S 1083 (10851

   COYAS may review due p m e s clmrnr of mrhtary personnel) Jordan Y Emred States 498 C S I000 (189011.

   illegal aliens in the United States. We cannot fault the Court of Appeals for placing some reliance on the case, but our decision did not expressly address the proposition gleaned by the court below . . . . The Court often @.ants certiorad to decide particular legal issues while assuming without deciding the validity of antecedent propositions

   . . . and such assumptions . . are nor binding in future cases that directly raise the questions 14

   These comments from the Chief Justice illustrate that remands "in iighr or' propositions and assumptions hardly constitute express holdings. Consequently, while Chief Judge Sulhvan may rely on these remands in support of his view, the issue of whether the Fourth Amendment applies to the military may be considered an open question. As Judge Wiss noted in Lopez, the CAAF "quite clearly hns applied the pertinent portions of the Bill of Rights."lb His statement that, "I must reject the implication that this assumad application of the Bill of Rights has somehow left the question open"16 is unjustified, however, as demonstrated above. Further, as Judge Wiss...