18.08.2013 Views

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

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

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

SHOW MORE
SHOW LESS
  • No tags were found...

Create successful ePaper yourself

Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.

inconsistent with Fed.R. Crim. P. 4, but the inconsistency is more<br />

apparent than real. Civilian law enforcement officials generally<br />

have power to arrest without warrant for offenses committed in<br />

their presence and for felonies upon probable cause. See e.g. 18<br />

U.S.C. §§ 3052, 3053, and 3056. To restrict the military apprehension<br />

power by requiring warrants in all or most cases would<br />

actually be inconsistent with civilian practice. The problem of<br />

apprehensions in dwellings is addressed by cross-reference to<br />

subsection (e) (2).<br />

Subsection (3) clarifies the power of military law enforcement<br />

officials to secure the custody of a person. There is no similar<br />

provision in the Federal Rules of Criminal Procedure. It is general,<br />

leaving to the services ample breadth in which to make more<br />

definitive regulations.<br />

The discussion restates paragraph 19 d of MCM, 1969 (Rev.).<br />

There is no corollary provision in the Federal Rules of Criminal<br />

Procedure. The purpose of the notification is twofold. First, it<br />

ensures that the unit commander of the person in custody will<br />

know the status of that member of the command and can participate<br />

in later decision making that will affect the availability of the<br />

member apprehended. Second, it ensures that law enforcement<br />

officials will promptly bring the case and suspect before the<br />

commander, thus ensuring that later procedural requirements of<br />

the code and these rules will be considered and met if appropriate.<br />

This is parallel in intent to Fed. R. Crim. P. 5 and 5.1.<br />

(e) Where an apprehension may be made. Subsection (1) is based<br />

on Article 5. It is similar to Fed. R. Crim. P. 4(d)(2) but broader<br />

because the code is not similarly limited by geography.<br />

Subsection (2) adds the warrant requirement of Payton v. New<br />

York, 445 U.S. 573 (1980), conforming the procedure to military<br />

practice. See also Steagald v. United States, 451 U.S. 204 (1981);<br />

United States v. Mitchell, 12 M.J. 265 (C.M.A. 1982); United<br />

S t a t e s v . D a v i s , 8 M . J . 7 9 ( C . M . A . 1 9 7 9 ) ; U n i t e d S t a t e s v .<br />

Jamison, 2 M.J. 906 (A.C.M.R. 1976). The first sentence clarifies<br />

the extent of Payton by citing examples of the kinds of dwellings<br />

in which one may and may not reasonably expect privacy to be<br />

protected to such a degree as to require application of Payton .<br />

Subsection (C) joins the warrant requirement to the traditional<br />

power of military commanders, and military judges when empowered,<br />

to authorize similar intrusions for searches generally and<br />

other kinds of seizures. The first sentence of the last paragraph in<br />

subsection (2) is based on Steagald v. United States, supra . The<br />

Working Group does not regard Steagald as requiring an exclusionary<br />

rule or supplying standing to an accused on behalf of a<br />

third party when the accused’s right to privacy was not violated.<br />

See Rakas v. Illinois, 439 U.S. 128 (1978). Failure to secure<br />

authorization or warrant to enter a private dwelling not occupied<br />

by the person to be apprehended may violate the rights of residents<br />

of that private dwelling.<br />

Rule 303 Investigation of charges<br />

This rule is based on paragraph 32 of MCM, 1969 (Rev.).<br />

M u c h o f t h e p r e d e c e s s o r n o w a p p e a r s i n t h e a c c o m p a n y i n g<br />

discussion.<br />

Rule 304 Pretrial restraint<br />

(a) Types of pretrial restraint. Except for the “conditions on<br />

liberty” provision, which is new, this subsection is based on<br />

paragraphs 20 a, b, and c of MCM, 1969 (Rev.). Some of the<br />

ANALYSIS<br />

App. 21, R.C.M. 304(e)<br />

former Manual which explained the distinction between arrest and<br />

restriction in lieu thereof and which described the consequences<br />

of breaking restrictions has been moved to the Discussion.<br />

The “conditions on liberty” provision is set out separately in<br />

the Manual for the first time, although such conditions (several<br />

examples of which are included in the Discussion) have been in<br />

practice previously and have received judicial recognition. See<br />

United States v. Heard, 3 M.J. 14, 20 (C.M.A. 1977); cf. Pearson<br />

v. Cox, 10 M.J. 317, 321 n. 2 (C.M.A. 1981) (conditions during<br />

period of deferment of adjudged sentence). Such conditions also<br />

p a r a l l e l t h e c o n d i t i o n s o n r e l e a s e d e s c r i b e d i n 1 8 U . S . C . §<br />

3 1 4 6 ( a ) . S e e a l s o A B A S t a n d a r d s , P r e t r i a l R e l e a s e § 1 0 - 5 . 2<br />

(1979). The discussion notes that pretrial restraint, including conditions<br />

on liberty, may not improperly hinder trial preparation.<br />

See United States v. Aycock, 15 U.S.C.M.A. 158, 35 C.M.R. 130<br />

(1964); United States v. Wysong, 9 U.S.C.M.A. 249, 26 C.M.R.<br />

29 (1958).<br />

The last sentence of the second paragraph of the discussion is<br />

based on United States v. Weisenmuller, 17 U.S.C.M.A. 636, 38<br />

C.M.R. 434 (1968); United States v. Smith, 17 U.S.C.M.A. 427,<br />

38 C.M.R. 225 (1968); United States v. Williams, 16 U.S.C.M.A.<br />

589, 37 C.M.R. 209 (1967). See also United States v. Nelson, 5<br />

M . J . 1 8 9 ( C . M . A . 1 9 7 8 ) ; U n i t e d S t a t e s v . P o w e l l , 2 M . J . 6<br />

(C.M.A. 1976).<br />

1986 Amendment: A fourth paragraph was added to the Discuss<br />

i o n t o p r o v i d e a c r o s s - r e f e r e n c e t o t h e s p e e d y t r i a l r u l e i n<br />

R.C.M. 707(a).<br />

(b) Who may order pretrial restraint. This subsection restates, in<br />

a reorganized format, paragraph 21 a of MCM, 1969 (Rev.). It is<br />

based on Article 9(b) and (c). The code does not address forms of<br />

restraint less severe than arrest; there is no reason to permit a<br />

broader class of persons than those who may impose arrest or<br />

confinement to impose less severe forms of restraint. Subsection<br />

(4) is based on United States v. Gray, 6 U.S.C.M.A. 615, 20<br />

C.M.R. 331 (1956). A commander who, under subsection (4), has<br />

withheld authority to order pretrial restraint may, of course, later<br />

modify or rescind such withholding. Even if such modification or<br />

rescission is denominated a “delegation,” it would be a rescission<br />

of the earlier withholding. The limits of subsection (3) would not<br />

apply.<br />

(c) When a person may be restrained. This subsection is based<br />

on Articles 9(d) and 10. Although forms of restraint less severe<br />

than arrest are not addressed by these articles, it is appropriate to<br />

require probable cause and a need for restraint for all forms of<br />

pretrial restraint. An officer imposing restraint has considerable<br />

discretion in determining how much restraint is necessary (cf. 18<br />

U.S.C. §§ 3146(a) and 3147), although a decision to confine is<br />

subject to thorough review under R.C.M. 305. The Discussion<br />

borrows from the language of Article 13 to admonish that the<br />

restraint must serve only the limited purpose of this rule. See<br />

subsection (f). See also United States v. Haynes, 15 U.S.C.M.A.<br />

122, 35 C.M.R. 94 (1964).<br />

(d) Procedures for ordering pretrial restraint. This subsection is<br />

based on Article 9(b) and (c) and on paragraph 20 d(2) and (3) of<br />

MCM, 1969 (Rev.). Since all forms of restraint other than confinement<br />

are moral rather than physical, they can be imposed only<br />

by notifying the person restrained.<br />

(e) Notice of basis for restraint. This subsection is based on<br />

Article 10. Since all forms of restraint other than confinement<br />

A21-15

Hooray! Your file is uploaded and ready to be published.

Saved successfully!

Ooh no, something went wrong!