2008 edition - Fort Sam Houston - U.S. Army

App. 21, R.C.M. 302(a) APPENDIX 21
subsection (1) is taken from Article 7(a), as was its predecessor,
paragraph 18 a of MCM, 1969 (Rev.).
The peculiar military term “apprehension” is statutory (Article
7(a)) and cannot be abandoned in favor of the more conventional
civilian term, “arrest.” See generally United States v. Kinane, 1
M.J. 309 (C.M.A. 1976). See also United States v. Cordero, 11
M.J. 210, 217, n.1 (C.M.A. 1981) (Everett, C.J., concurring).
The discussion of “apprehension” is also consistent with paragraphs
18 a and b(1) of MCM, 1969 (Rev.). The discussion draws
a distinction between apprehensions and detentions. The distinction
is based upon the duration of the status, the legal consequences
of the impairment of liberty, and the circumstances under
which the two forms are used. Brown v. Texas, 443 U.S. 47
(1979); Dunaway v. New York, 442 U.S. 200 (1979); Terry v.
Ohio, 392 U.S. 1 (1968); United States v. Schneider, 14 M.J. 189
( C . M . A . 1 9 8 2 ) ; U n i t e d S t a t e s v . T e x i d o r - P e r e z , 7 M . J . 3 5 6
(C.M.A. 1979).
This rule conforms in intent with the substance of Fed. R.
Crim. P. 3 through 5. However, the formal warrant application
process and initial appearance requirement of those rules are
impracticable, and, given the command control aspects of the
military, unnecessary for military criminal practice. The purposes
of Fed. R. Crim. P. 3 through 5 are achieved by later rules in this
chapter.
Subsection (2) clarifies the scope of the rule. It does not affect
apprehensions of persons not subject to trial by court-martial.
Apprehension and detention of such persons by military law enforcement
personnel is not part of the court-martial process; it is
based on the commander’s inherent authority to maintain law and
order on the installation and on various state laws concerning
citizen’s arrest. See United States v. Banks, 539 F.2d 14 (9th Cir.
1976). The rule also does not affect the authority of persons not
listed in subsection (b) to apprehend. The discussion gives some
examples of such categories.
(b) Who may apprehend. This subsection restates the substance
of Articles 7(b) and (c) and 8, and paragraphs 19a and 23 of
MCM, 1969, (Rev.). Subsection (3), Federal civilian law enforcement
officers, is the only new provision.
Subsection (1) is taken from paragraph 19 a of MCM, 1969
(Rev.). The phrase “whether subject to the code or not” is added
to the present rule to make clear that contract civilian guards and
police and similar civilian law enforcement agents of the military
have the power to apprehend persons subject to the code.
The discussion of subsection (1) reflects the elimination of the
previous restrictive policy against apprehensions of commissioned
and warrant officers by enlisted and civilian law enforcement
personnel. This recognizes the authority of such personnel commensurate
with their law enforcement duties. The rule does not
foreclose secretarial limitations on the discretion of such personnel.
1987 Amendment: The Discussion was amended to clarify that
special agents of the Defense Criminal Investigative Service have
the authority to apprehend persons subject to trial by courtsmartial.
Subsection (2) restates the previous exercise of delegated authority
under Article 7(b) to designate persons authorized to apprehend
which appeared in the first clause in the first sentence of
paragraph 19 a of MCM, 1969 (Rev.). The accompanying discus-
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sion is based on the second sentence of paragraph 19 a of MCM,
1969 (Rev.).
1990 Amendment: The words “or inactive-duty training” were
added in conjunction with the enactment of the “Military Justice
Amendments of 1986,” tit. VIII, 804 National Defense Authorization
for Fiscal Year 1987, Pub. L. No. 99–661, 100 Stat. 3905
(1986) expanding jurisdiction over reserve component personnel.
Subsection (3) restates Article 8. This seemingly duplicative
statement is required because the codal provision as to deserters
extends the Federal arrest power to state and local law enforcement
agents who do not have the kind of Federal arrest power
possessed by their colleagues listed in subsection (3). The fact
that a person who apprehended a deserter was not authorized to
do so is not a ground for discharging the deserter from military
custody. See paragraph 23 of MCM, 1969 (Rev.).
(c) Grounds of apprehension. This subsection concerns apprehension
of persons subject to the code or to trial by court-martial.
Note that such persons may be apprehended under this rule only
for offenses subject to trial by court-martial. See also the analysis
of subsection (a)(2) of this rule. The power to apprehend under
this rule lasts as long as the person to be apprehended is subject
to the code or to trial by court-martial. This provision has no
explicit parallel in MCM, 1969 (Rev.) but is consistent with the
limitation of the apprehension power in both the code and that
Manual to persons subject to the code. The Federal Rules of
Criminal Procedure have no similar provision either, because the
arrest power of civilian law enforcement officials is not similarly
limited by the status of the suspect.
The subsection states alternative circumstances which must exist
to permit apprehension during this period. The first two sentences
restate the probable cause requirement for apprehension of
suspects, the main use of the apprehension power of which Article
7(b) and paragraph 19 a of MCM, 1969 (Rev.) took note.
They are consistent with Fed. R. Crim. P. 4(a). No change to the
substance of those provisions has been made, but the discussion
provides that probable cause may be based on “the reports of
others” to make clear that hearsay may be relied upon as well as
personal knowledge. This addition is consistent with Fed.R. Crim.
P. 4(b). The wording has been changed to eliminate the legal
term, “hearsay.”
The last sentence of the subsection restates the codal authority
of commissioned, warrant, petty, and noncommissioned officers
to use the apprehension power to quell disorders, and is based on
Article 7(c) and paragraph 19 b of MCM, 1969 (Rev.), changed
only as necessary to accommodate format. Cf. paragraph 19 a of
MCM, 1951, and of MCM, 1969 (Rev.) (authority of military law
enforcement official to apprehend on probable cause). See also
Article of War 68 (1920). Compare paragraph 20b (authority of
military police) with paragraph 20 c (quarrels and frays) of MCM
(Army), 1949 and of MCM (AF), 1949. Article 7(b) expressly
requires probable cause to believe an offense has been committed;
Article 7(c) does not.
(d) How an apprehension may be made. In subsection (1) the
general statement of procedure to make an apprehension is based
on paragraph 19 c, MCM, 1969 (Rev.) but it has been amplified
in accord with United States v. Kinane, 1 M.J. 309 (C.M.A.
1976). See also United States v. Sanford, 12 M.J. 170 (C.M.A.
1981).
Subsection (2) is consistent with military law. It is superficially