Military Searches and Seizures

• Author: Lieutenant Robert S. Warren
• Pages: 01

The Uniform Code of Military Justice' contains no protection of the serviceman from searches and seizures conducted by military autharitiea. The Manual for Courts-Martial, 1951, merely provides a rule of evidence banning the resuits of certain searches from evidence before courts-martiaL2 Is there then no affirmative provision of law portecting a member of a military service from an invasion of his legitimate interests in privacy?

Various commentators have advanced the proposition that the proscriptions of the fourth amendment against unreasonable search and seizure, or for that matter any of the protections in the Bill of Rights, play no role in the administration of military justice.8 Their opinions are predicated upon a rather elderly Supreme Court decision dealing with the administrative discharge of an officer,' certain remarks of the Court of Military Appeals in the Clay case,5 boards of review decisions misciting certain Federal cases,B and the Quirin denial of the right to trial by jury before a military commission.' However, more recently,

* This article TUBS adapted from a thesis presented to the Fourth Adrimead Class, The Judge Adroeate General's School, Charlottesville. Vs. The opinions and cmclueions expressed herein m e those ai the authors and do not neeeirarily represent the vieias of The Judge Adroeate Gmerai'a School OY m y other gmernmentsl agency. Members, StaE and Faculty, The Judge Advocate General's School, Charlottesville, Va.10 U.S.C. 8 801-940 (Supp. IV).* Par. 162, MCM, 1961.

' E.g., Wurfel. Militwy Dua Pvooeai: What 1s It? 6 Vsnd. L. Rev.

251, 28MBl (1963); Note, 101 U. Pa. L. Rea. 861. 863 (1953). But see a more recent ertiele prerenting and excellent exposition of the legislative hietary of the Bill af Rights and eoneluding that a goad portion of their protections were intended to apply to the military. Henderson, Cowts-Ma7tzal and tha Comtitwtion: Tha Oliginal Undsr-stonding, 71 Rarv. L.

Rev. 293 (1967).

' C~a~lry V. Weeks, 269 U.S. 836,343 (1922). U.S.

\.. Cla~,

1 L'SCXA 14,1 C I R 74, 79 (1951).a E.g., ACM 4332, Kofnetka, 2 CMR 773, 777 (1962), citing Richardson Y. Zumann. 81 F. Supp. 309 (M.D. Pa. 1949). Actually, the Richardson court held that the facta showed no violation of the fourth.

' EzParte Quirin, 317 US

1 (1842).

T*OO LIeIB4.P 1

in the case of Burns v. Wilson.8 the United States Supreme Court has given clear indication that at least the basic constitutional guarantee of a fair trial applies to proceedings before military tribunals.

"The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights. , . . For the constitutional guarantee of due process is meaningful enough, and sufficiently adaptable, to protect soldiers--as well as civilians-from the crude injustices of a trial so conducted , , ,

[that it fails to adhere1 to those basic guarantees which have long been recognized and honored by the military courts as well &s the civil c~urts."~The opinions of the inferior Federal judiciary subsequent to the Burn8 decision indicate that the above point of view has begun to pervade the Federal system.'O Of course, it ia yet recognized that certain guarantees of the Bill of Rights have no application to military proceedings, as is so provided in the Canstitution either expresslyx1 or by clear implication.1a The Court of Xilitary Appeals has been more reluctant to accept the applicability of the various constitutional provisions. Chief Judge

' 346 U.S. 137, mh, den., 346 US. 344 (opinion on denial of rehearing by Frankfurter, J.j (1963).

' Id. st 142 143. Hawever, in Reid V. Covert, 364 U.S. 1 (1966), Justice

Black felt constrained to remark that: ''AS set it has not been clearly iettied to what extent th8 Bili of Righta and other protective parti of the Constitution apply to military trials." (at p. 61). On the other hand, in the same case, Justice Frankfurter expmsed no doubt that ''proceedings before American military tribunals . , . are sub-ject to the applicable IestTiCtions of the Constitution." (at p. 66). Although the defendant was not a serviceman, it is yet significant that the fourth amendment was held applicable to the military trial of B civilian werse&s and subieft to the Uniform Code of Military Justice. Best V. U.S., 184 F.2d 131 (1st Cir. 1960). cart. den., 340U.S. 939. See also Collins, Canstit%tional Rwhla oj Miliiary Psraonnsl (Thesis Rled at The Judge Advocate General's School 1957).

Day Y. Wilson, 247 F.2d 60, 82 (D.C. Cir. 1951); Dvhsnsan V. Do&, 246 F.2d 317, 320 (10th Clr. 1967); Miohaelson s, Henan, 242 F.2d 693. 696 (2d Cir. 19571 ioer ledina. J.1: Dzzan Y. U.S..

257 F.2d

609; 510 (10th Cir. l066ji Day 7. D&,'236 F.2d 379, 384 (10th Cir. I96Sj.

U.S. Conrt. amend. V. el. 1, excusing ''cases sriring in the land or naval foreea" from the indictment by grand jury rerjuirement.

" Er Pa& Quirin. 317 U.S. 1, 38 i1942). diipeneing with the neeemits of a jury trial In 8 militmy proeeeding.

a ACO ,1618

MILITARY SEARCHES AND SEIZURES

Quinn has upon various occasions expressed his viewpoint that a majority of the first ten amendments apply in court-martial proceedings.Is Hovever, Judges Latimer and Ferguson have been more equivocal. They seem to afford the serviceman the identical protections as are contained in the Constitution, but refuse to specify whether they do so because of the application of the Constitution or because of a judicially erected "military due process'' based on statutory provisions.'< The reason for their hesitation may have been expressed by the late Judge Brosman in a case wherein the constitutionality of a provision of the Uniform Code of Military Justice was questi~ned.'~ There, Judge Brosman indicated his doubts that B court created by Congress in the Uniform Code could by judicial fiat declare a portion of that same statute violative of the Constitution and thus invalid.l8 At any rate, it may be safely ventured that the military appellate agencies will afford an accused the basic constitutional guaran-tees, whether expressly or via another route.

As regards the fourth emendment, no reason exists to dens its application in the administration of military justice. The protection is against ''unreasonable" searches and seizures; and what is unreasonable may be worked out within the context of military necessity. As shall be seen, both the executive1' and judicial" interpretation of the "reasonable" test has been ar-rived at with due regard for the authoritarian discipline and global operation peculiar to the military.

Assuming the application of the fourth, what sanctions exist against its violation? The United States Supreme Court, in the exercise of its supervisory power over the inferior Federal judiciary,'g has adopted a rule of exclusion barring evidence obtained in violation of the amendment from admission in Federal courts.20

U.S. 7. Bra%%, 7 USCMA 261, 22 CMR 41, 60 (1968) (concurring opinion); US. V. Sutton, a USCMA 220, 11 CMR 220, 228 (1963)ldirsentl.

U.S. 7. B m m , 1 USCMA 261, 22 CMR 41, 41 (19661 (public trial); US Y. Swonaon, 3 USCMA 611, 14 CMR 89. 91 (1954) (search and~ E Y I B )

; US v. Sdton. 8 USCHA 220, 11 CMR 220 (1968) (con-

,.*.+.+

-. ..,.

7. szrtton, supra, note 14.

Id. at 227.

'' Par. 152, HCM, 1961.'' See footnotea 26,21,44,46,6S,61, and 84. infva.

" There is no eonstitvtional requirement that the fourth amendmentbe enforced by means of an evidentiary rule of adusion. Wolf Y. coi~ado,

338 U.S. 26 (1948).

~1 W S P ~ ~ .

us., 232 U.S.

58s (1914).

A00 lld(iB 3

y

U.S.

MILWARY LAW REVIEW

Similarly, the President, as Commander-in-Chief of the Armed Forces. propounded an exclusionary rule for use in courts-martial.

"Evidence is inadmissible asainst the accused if it was obtained a8 the result of an unlawful search of his property conducted or instipated by persons acting under the authority of the United States, or if it was obtained under such circumstances that the provisions of Section 605 of the Cammunications Act of 1934 , . . would prohibit its u8e against the accused were he being tried in a United States district court. All evidence obtained through information supplied by such illegally obtained evidence is likewise inadmissible.

The Manual for Courts-Martial then proceeded to spell out just what conduct would be "unreasonable" and require rejection of the evidence obtained as a result. In so doing, the drafters con-sidered Federal decisions and attempted to pattern the military rule thereafter insofar pis could be done consistent with the needs of the military.2a The balance of this paper will, in the main, be devoted to a consideration of the specific search authorizations contained in the Manual.

z3m

1. SEARCHES AUTHORIZED BY A WARRANTA valid search may be "conducted in accordance with the authority granted by a lawful search \warrant."z3 Of course, the warrant must hare been issued by a proper tribunal. Some problems in this regard may arise when a warrant issued by a state court is attempted to be employed upon a Federal reserve.. ti0n.l' Otherwise, no particular difficulties arise in this ares and the civilian rules may properly be considered applicable.

   11. SEARCHES AUTHORIZED BY A COMMANDING OFFICER

   A. Of Government Quarters and O ~ W S

   "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 x%-ithin a military installation or in a foreign country or in occupied territory and is owned,

   PB~.

   152, MCM, 1951.

   Legal and Legialative Basis, nlanval for Courta-Martial, 1951 p, 240; U.S,v.Dupree,

   1 USCDIA655,5 CMR93 (1962).

   Nota, 101 U. Pa. L. Rev. 851, 360-861 (1953). Sea alia Note, 101 U.

   Pa. L. Rev. 124 (1952).

   = Par. 152, MCM, 1951.

   4 AGO 11am

   ...

   DIILlTARY SEARCHES AND SEIZURES

   used, or occupied by persons subject to military law or to the law of war, which search has been authorized by a...