How to Improve Military Search and Seizure Law
| Author | by Captain Douglas R. Wright |
| Pages | 03 |
Since 1980, Military Rules of Evidence 311 through 317 have governed military search and seizure law. According to the drafters, the rules represented "a partial codification of the law relating to . . . search and seizure."' Obviously, the "law" referred to wa8 the body of fourth amendment interpretations that the Court of Military Appeals had rendered up to that time. These interpretations generally mirrored the interpretations of the Supreme Court because, nearly two decades prior to the adoption of the Military Rules of Evidence. the Court of Military Appeals had held that the protections in the Bill of Rights, a8 interpreted in the civilian context, should apply to the military to the extent possible.2
The Military Rules of Evidence represent a compromise between specificity and generality.5 They were intended to be specific enough to ensure stability and uniformity within the armed forces, yet, at the 8ame time, general enough to allow for necessary change via case law. For example. Rule 314(k) provides that searches "of B type not otherwise included in this rule and not requiring probable cause . . . may be conducted when permhi. ble under the Constitution of the United States as applied tomembers of the armed forces."'
Such flexible provisions contemplate what may be called "evolutionary" changes-those that proceed dong the established path of fourth amendment development. A "revolutionary" change-one based upon principles that differ from the established
*Judge Advocate Genera8 Corps, UNted State8 Army Curreatiy In8tllictoi. Department of Law, United States Military Academy, Weat Point, New York Formerly assigned ~ l s Chief. Legal Assistance. and Trial Counsel. Fort Sa. Olilahoma. 1981 to 1985. B.A.. Brigham Young Uruverrity. 1976 J.D. Brigham Young University. 1981. Completed 34th Judge Aduoesfa Officer Graduste Course 1986. Member of the bars of the Stare of Utah, the U.S.
Amy C a m of
\fit- Review. and the United Sfalea Supreme Court Thii article ie based on B thesis subnutted m partial satisfaction of the reqvementr of the 34th Judge AdvocaLe Officer Graduate Couie.
Manual far Courts-Martial. United States, 1984. Militan. Rdea of Evidence analysis. ~ e ~ t m n
111 st A22.6 [heremafter Md. R Evid. analyeis].'Umfed Stater Y. Jaeoby 11 C.M.A 428. 430-31, 29 CMR 244. 246-41 119801 (' [Tlhe proLeetimi m the Blll of RlphLa, except those whch are erpreiily 01 by necessary mpucarion mapplicable, are available to members of ou armed forces "I
Md R. Ewd. analysis section Ill, ~lt
AZ2-5
'MA. R Ewd 3141k1
fourth amendment doctrine-would by definition disrupt the theoretical framework of the specific rules.
Such a "revolutionary" doctrine emerged in 1985 in a case where the military was neither involved nor mentioned, but where the basis of the decision had even greater pertinence to the military than to the case at bar In New Jersey v. T.L.0.'the
Supreme Court announced that public school officials, from teachers to principals, could conduct warrantless searches of students upon less than probable cause because of "the substan. tial interest of teachers and administrators in maintaining disci. pline in the classroom and on school graunds.6
Courts have almost universally relied upon the need for maintaining discipline to justify military "exceptions" to the constitutional requirements imposed in a civilian context.' In United States v. Stuckey,B Chief Judge Everett relied in part upon the need for military discipline' to justify the use of search authorizations issued by military commanders, even though com. manders would be unable to function as truly neutral magistrates under the constitutional standards applicable to civilians.10 By creating a "discipline" exception to the warrant and probable cause requirements of the fourth amendment, the Supreme Court has eliminated the need far military "exceptions" to its interpretations.
'105 S Cf 733 119851
'Id st 742'See Rosther v Goldberg. 463 U.S 51, 69 n.6 118811 (quoting S. Rep No. 826. 96th Cong, 2d Sssa 169-60. mpnntrd in 1980 U.S Code Cang 6 Ad. Sews 26491: Brom V. Ghes 444 U.S. 318 119801: Burns Y Wilson. 346 U.S. 137 119631, Wathns V. United States Army 721 F.2d 687 19th Clr 19831, Hatheray Y
Seerstary of the Army, 641 F 2d 1316. 1382 19th Cr.1. esrt denied, 454 US 864119811: B&r Y. Middondorf, 632 F 2d 768 19th Clr 19801, Camttee for 01 Rlghtr v Callaway. 618 F.2d 466 1D.C. Crr. 19761: Carlson v Schleainger. 511 F.2d 1327 (D.C Clr 19761: Cartrjght Y RBBOL
447 FZd 215, 252.63 12d Clr 19711, ~ n i t d m i d 105 U.S. 966 118721, Anderson v Lard, 437 F.2d 912 17th Cirl. esn. & n i d 401 US. 866 119711: Raderman v Kaine 411 F2d 1102 12d Cml, ceiidsnzsd, 396 US. 976 119681: Pelrey v Flaugher, 605 F. Supp 1087, I091 n.21 (ED
Ky. 19811: Huff Y &ret- of the Na?, 413 F Supp. 363 ID D C 19761 affd in pan, uufnfed zn part an other grounds, 575 F. 2d 907 ID C. Cu. 19731. mud on other gmunds. 144 US 453 118601, Culver V. Secretary of the Air Force. 388 F.Supp. 331 1D.D C. 19751. aird, 559 F.2d 622 1D.C. Cu 19771. Martin
-
Sehleainger, 371 F Svpp 637 1W D Ala 19741 Wlvlis V. Urvfod States. 368 FSupp 822 1M.D FIa 19741: Tdey Y MCLYC~S.
366 F Supp 1241 1SD Tar 19731. McWhtsr Y. FroBhke. 351 F. Supp. 1098. 1101 !D.S.C. 19721
19871 SEARCH AND SEIZURE
Moreover, in creating the discipline exception, the Supreme Court relied upon inspection" and stap.and-frisk12 cases in B way that demonstrates that the various types of fourth amendment intrusions are properly distinguished from one another by the degree of suspicion involved. This raises questions about the wisdom of the military "primary purpose" distinction between searches and inspections. In fact, the test for fourth amendment reasonableness that the Supreme Court derives from its precedents is readily adaptable to inspection situations.
Because of the far reaching implications of the TL.0. doctrine, this article examines how those principles should be implemented in the military. The article examines the development of military search and seizure law and some common misconceptions about that development. It then concludes that the full benefits of T.L.O. can only be realized by adopting changes to the Military Rules of Evidence, and proposes some changes.
-
FUNDAMENTALS: INHERENT RIGHTS V. DELEGATED POWERS
Perhaps the best way to understand the present state of the law is to examine its development. This examination requires a howledge of the fundamental principles that shaped this develop. ment.
The fourth amendment does not grant any rights to military personnel because the Constitution does not confer "constitutional rights" upon anyone. On the contrary, it merely prohibits government from infringing upon self-existent. or natural rights. Our government is founded on the principle that the fundamental rights of individuals are inherent and inalienable, and that it is the role of government to preserve them.ls
.>Sea, e.#., TLO.. 106 S. Ct at 741 lciting Camara V. Mumupal Court, 378 U.6623 1196111: Id at 140 lquolrag Cnmam and Marshall Y Barlow s, Ine, 436 U.S.307 1197811.
"Sea, e#. 106 S. Ct. at 744, where the Caut apphsa the fourth amendment reesanibleness test articuisted ln Terry V. Ohm 382 U.S. 1 118611
"A8 stated in the Declaration of Independence.
We hold these truths to be self-evident. that dl men . . . me endowed by fhev Creator with eeifa~luaahensble Rights. that among these are Life, Libsrty and the pwmit of Happiness. That Lo aecue thee. nghts, governmenfa are instituted among Men, denvlng then just powers horn rhe consent af the governedThe D~~larall~nai Independence para 2 IUS 17761
The people subordinate their rights only insofar as they delegate power to the government. As Colonel Thomas Hartley explained to the Pennsylvania ratification convention:
As soon as the independence of America was declared. in the year 1776. from that instant all our natural rights were restored to us. and we were at liberty to adopt any form of government to which our views or our interest might incline us. This truth . . . naturally produced another maxim, that whatever portion of those natural rights we did not transfer to the government, was still resewed and retained by the people; for, if no power was delegated to the gouernment, no right was resrgned by the people."
Two examples will illustrate how these principles of popular sovereignty and delegated powers were woven into the fabric of the Constitution to enable the people to "secure the Blessings of Liberty to [themlselves and [their] Posterity."1i First. If their
elected representatives failed to properly protect and preserve their rights. the people could elect new representatives. Second. if the people determined that this elective process did not adequately protect their rights, they could amend the Constitunon to more accurately define the scope of the delegated powers 16
"Pennrylvma and the Federal Constitution 1787.1788, at 289 IJ Uchlsrter 6
F. Stone eds 18881 femphasis added1
"US. Const. preamble"The original Conititution &d not contun B hill af rights The opponents 01 a bill of rights assurd &he people that the Conet~futioncas not intended to give tho government power to lnfrmge their inherent right8 James Wilson, ~n the debates in Pennsylvania, expressed fear that B bill of rights would be dangerour becmse ir would imply that anythmg not hied was subject to the power of the governmentHe thought rhal citmens war$ heady adequstaly protected beesuse. by defmrrion. every set of government mtmdd upon the rights of the people and could only be juatifid by reference to one of the specifically delegsted poww 2 The Deberea mthe Several State Conventions on Lhe Adoptron 01 the Federal Constitution 436.38 iJ Elliot 4.
18011.
On the ocher hand. the proponents 01 B blll of nghts felt chat the pewers deiegsted LO the federal government were 30 broad Lhsf...
To continue reading
Request your trial