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

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

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App. 22, M.R.E. 314(c) APPENDIX 22 though the purpose of the 314(c) examination is to prevent introduction of contraband into the installation, aircraft or vessel. A Rule 314(c) examination must, however, be for a purpose denominated in the rule and must be rationally related to such purpose. A search pursuant to Rule 314(c) is possible only upon entry to the installation, aircraft, or vessel, and an individual who chooses not to enter removes any basis for search pursuant to Rule 314(c). The Rule does not indicate whether discretion may be vested in the person conducting a properly authorized Rule 314(c) search. It was the opinion of members of the Committee, however, that such discretion is proper considering the Rule’s underlying basis. 1984 Amendment: Subsection (c) was amended by adding “or e x i t f r o m ” b a s e d o n U n i t e d S t a t e s v . A l l e y n e , 1 3 M . J . 3 3 1 (C.M.A. 1982). (d) Searches of government property. Rule 314(d) restates prior law, see, e.g., United States v. Weshenfelder, 20 C.M.A. 416, 43 C.M.R. 256 (1971), and recognizes that personnel normally do not have sufficient interest in government property to have a reasonable expectation of privacy in it. Although the rule could be equally well denominated as a lack of adequate interest, see, Rule 311(a)(2), it is more usually expressed as a non-probable cause search. The Rule recognizes that certain government property may take on aspects of private property allowing an individual to develop a reasonable expectation of privacy surrounding it. Wall or floor lockers in living quarters issued for the purpose of storing personal property will normally, although not necessarily, involve a reasonable expectation of privacy. It was the intent of the Committee that such lockers give rise to a rebuttable presumption that they do have an expectation of privacy, and that insofar as other government property is concerned such property gives rise to a rebuttable presumption that such an expectation is absent. Public property, such as streets, parade grounds, parks, and office buildings rarely if ever involves any limitations upon the ability to search. (e) Consent Searches. (1) General rule. The rule in force before 1980 was found in Para. 152, MCM, 1969 (Rev.), the relevant sections of which state: A search of one’s person with his freely given consent, or of property with the freely given consent of a person entitled in the situation involved to waive the right to immunity from an unreasonable search, such as an owner, bailee, tenant, or occupant as the case may be under the circumstances [is lawful]. If the justification for using evidence obtained as a result of a search is that there was a freely given consent to the search, that consent must be shown by clear and positive evidence. Although Rule 314(e) generally restates prior law without substantive change, the language has been recast. The basic rule for consent searches is taken from Schneckloth v. Bustamonte, 412 U.S. 218 (1973). (2) Who may consent. The Manual language illustrating when third parties may consent to searches has been omitted as being insufficient and potentially misleading and has been replaced by Rule 314(e)(2). The Rule emphasizes the degree of control that an individual has over property and is intended to deal with circumstances in which third parties may be asked to grant consent. See, e.g., Frazier v. Cupp, 394 U.S. 731 (1969); Stoner v. California, A22-26 376 U.S. 483 (1964); United States v. Mathis, 16 C.M.A. 511, 37 C.M.R. 142 (1967). It was the Committee’s intent to restate prior law in this provision and not to modify it in any degree. Consequently, whether an individual may grant consent to a search of property not his own is a matter to be determined on a case by case basis. (3) Scope of consent. Rule 314(e)(3) restates prior law. See, e.g., United States v. Castro, 23 C.M.A. 166, 48 C.M.R. 782 (1974); United States v. Cady, 22 C.M.A. 408, 47 C.M.R. 345 (1973). (4) Voluntariness. Rule 314(e)(3) requires that consent be voluntary to be valid. The second sentence is taken in substance from Schneckloth v. Bustamonte, 412 U.S. 218, 248–49 (1973). The specific inapplicability of Article 31(b) warnings follows Schneckloth and complies with United States v. Morris, 1 M.J. 352 (C.M.A. 1976) (opinion by Chief Judge Fletcher with Judge Cook concurring in the result). Although not required, such warnings are, however, a valuable indication of a voluntary consent. The Committee does not express an opinion as to whether rights warnings are required prior to obtaining an admissible statement as to ownership or possession of property from a suspect when that admission is obtained via a request for consent to search. (5) Burden of proof. Although not constitutionally required, the burden of proof in Para.152 of the 1969 Manual for consent searches has been retained in a slightly different form— “clear and convincing” in place of “clear and positive”— on the presumption that the basic nature of the military structure renders consent more suspect than in the civilian community. “Clear and convincing evidence” is intended to create a burden of proof between the preponderance and beyond a reasonable doubt standards. The Rule expressly rejects a different burden for custodial consents. The law is this area evidences substantial confusion stemming initially from language used in United States v.Justice, 13 C.M.A. 31, 34, 32 C.M.R. 31, 34 (1962): “It [the burden of proof] is an especially heavy obligation if the accused was in custody ...”, which was taken in turn from a number of civilian federal court decisions. While custody should be a factor resulting in an especially careful scrutiny of the circumstances surrounding a possible consent, there appears to be no legal or policy reason to require a higher burden of proof. (f) Frisks incident to a lawful stop. Rule 314(f) recognizes a frisk as a lawful search when performed pursuant to a lawful stop. The primary authority for the stop and frisk doctrine is Terry v. Ohio, 392 U.S. 1 (1968), and the present Manual lacks any reference to either stops or frisks. Hearsay may be used in deciding to stop and frisk. See, e.g., Adams v. Williams, 407 U.S. 143 (1972). The Rule recognizes the necessity for assisting police or law enforcement personnel in their investigations but specifically does not address the issue of the lawful duration of a stop nor of the nature of the questioning, if any, that may be involuntarily addressed to the individual stopped. See Brown v. Texas, 440 U.S. 903 (1979), generally prohibiting such questioning in civilian life. Generally, it would appear that any individual who can be lawfully stopped is likely to be a suspect for the purposes of Article 31(b). Whether identification can be demanded of a military suspect without Article 31(b) warnings is an open question and may be dependent upon whether the identification of the suspect is

elevant to the offense possibly involved. See Lederer, Rights Warnings in the Armed Services, 72 Mil.L.Rev. 1,40–41 (1976). 1984 Amendment: Subsection (f)(3) was added based on Michigan v. Long, 463 U.S. 1032 (1983). (g) Searches incident to a lawful apprehension. The 1969 Manual rule was found in Para. 152 and stated: A search conducted as an incident of lawfully apprehending a person, which may include a search of his person, of the clothing he is wearing, and of property which, at time of apprehension, is in his immediate possession or control, or of an area from within which he might gain possession of weapons or destructible evidence; and a search of the place where the apprehension is made [is lawful]. Rule 314(g) restates the principle found within the Manual text but utilizes new and clarifying language. The Rule expressly requires that an apprehension be lawful. ( 1 ) G e n e r a l R u l e . R u l e 3 1 4 ( g ) ( 1 ) e x p r e s s l y a u t h o r i z e s t h e search of a person of a lawfully apprehended individual without further justification. ( 2 ) S e a r c h f o r w e a p o n s a n d d e s t r u c t i b l e e v i d e n c e . R u l e 314(g)(2) delimits the area that can be searched pursuant to an apprehension and specifies that the purpose of the search is only to locate weapons and destructible evidence. This is a variation of the authority presently in the Manual and is based upon the Supreme Court’s decision in Chimel v. California, 395 U.S. 752 (1969). It is clear from the Court’s decision in United States v. Chadwick, 438 U.S. 1 (1977), that the scope of a search pursuant to a lawful apprehension must be limited to those areas which an individual could reasonably reach and utilize. The search of the area within the immediate control of the person apprehended is thus properly viewed as a search based upon necessity— whether one based upon the safety of those persons apprehending or upon the necessity to safeguard evidence. Chadwick, holding that police could not search a sealed footlocker pursuant to an arrest, stands for the proposition that the Chimel search must be limited by its rationale. That portion of the 1969 Manual rule.subparagraph dealing with intrusive body searches has been incorporated into Rule 312. Similarly that portion of the Manual dealing with search incident to hot pursuit of a person has been incorporated into that portion of Rule 315 dealing with exceptions to the need for search warrants or authorizations. 1984 Amendment: Subsection (g)(2) was amended by adding language to clarify the permissible scope of a search incident to apprehension of the occupant of an automobile based onNew York v. Belton, 453 U.S. 454 (1981). The holding of the Court used the term “automobile” so that word is used in the rule. It is intended that the term “automobile” have the broadest possible meaning. (3) Examination for other persons. Rule 314(g)(3) is intended to protect personnel performing apprehensions. Consequently, it is extremely limited in scope and requires a good faith and reasonable belief that persons may be present who might interfere with the apprehension of individuals. Any search must be directed towards the finding of such persons and not evidence. An unlawful apprehension of the accused may make any subsequent statement by the accused inadmissible, Dunaway v. New York, 442 U.S. 200 (1979). 1994 Amendment. The amendment to Mil. R. Evid. 314(g)(3), based on Maryland v. Buie, 494 U.S. 325 (1990), specifies the ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 315(a) circumstances permitting the search for other persons and distinguishes between protective sweeps and searches of the attack area. Subsection (A) permits protective sweeps in the military. The last sentence of this subsection clarifies that an examination under the rule need not be based on probable cause. Rather, this subsection adopts the standard articulated in Terry v. Ohio, 392 U.S. 1 (1968) and Michigan v. Long, 463 U.S. 1032 (1983). As such, there must be articulable facts that, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing the area harbors individuals posing a danger to those at the site of apprehension. The previous language referring to those “who might interfere” was deleted to conform to the standards set forth in Buie. An examination under this rule is limited to a cursory visual inspection of those places in which a person might be hiding. A new subsection (B) was also added as a result of Buie, supra. The amendment clarifies that apprehending officials may examine the “attack area” for persons who might pose a danger to apprehending officials. See Buie, 494 U.S. at 334. The attack area is that area immediately adjoining the place of apprehension from which an attack could be immediately launched. This amendment makes it clear that apprehending officials do not need any suspicion to examine the attack area. (h) Searches within jails, confinement facilities, or similar facilit i e s . P e r s o n n e l c o n f i n e d i n a m i l i t a r y c o n f i n e m e n t f a c i l i t y o r housed in a facility serving a generally similar purpose will normally yield any normal Fourth Amendment protections to the reasonable needs of the facility. See, United States v. Maglito,20 C.M.A. 456, 43 C.M.R. 296 (1971). See also Rule 312. (i) Emergency searches to save life or for related purpose. This type of search is not found within the 1969 Manual provision but is in accord with prevailing civilian and military case law. See, United States v. Yarborough, 50 C.M.R. 149, 155 (A.F.C.M.R. 1975). Such a search must be conducted in good faith and may not be a subterfuge in order to circumvent an individual’s Fourth Amendment protections. (j) Searches of open fields or woodlands. This type of search is taken from 1969 Manual paragraph 152. Originally recognized in Hester v. United States, 265 U.S. 57 (1924), this doctrine was revived by the Supreme Court in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974). Arguably, such a search is not a search within the meaning of the Fourth Amendment. In Hester, Mr. Justice Holmes simply concluded that “the special protection accorded by the 4th Amendment to the people in their [persons, houses, papers, and effects] is not extended to the open fields.” 265 U.S. at 59. In relying on Hester, the Court in Air Pollution Variance Board noted that it was “not advised that he [the air pollution investigator] was on premises from which the public was excluded.” 416 U.S. at 865. This suggests that the doctrine of open fields is subject to the caveat that a reasonable expectation of privacy may result in application of the Fourth Amendment to open fields. (k) Other searches. Rule 314(k) recognizes that searches of a type not specified within the Rule but proper under the Constitution are also lawful. Rule 315 Probable cause searches (a) General Rule— Rule 315 states that evidence obtained pur- A22-27

elevant to the offense possibly involved. See Lederer, Rights<br />

Warnings in the Armed Services, 72 Mil.L.Rev. 1,40–41 (1976).<br />

1984 Amendment: Subsection (f)(3) was added based on Michigan<br />

v. Long, 463 U.S. 1032 (1983).<br />

(g) Searches incident to a lawful apprehension. The 1969 Manual<br />

rule was found in Para. 152 and stated:<br />

A search conducted as an incident of lawfully apprehending a<br />

person, which may include a search of his person, of the clothing<br />

he is wearing, and of property which, at time of apprehension, is<br />

in his immediate possession or control, or of an area from within<br />

which he might gain possession of weapons or destructible evidence;<br />

and a search of the place where the apprehension is made<br />

[is lawful].<br />

Rule 314(g) restates the principle found within the Manual text<br />

but utilizes new and clarifying language. The Rule expressly<br />

requires that an apprehension be lawful.<br />

( 1 ) G e n e r a l R u l e . R u l e 3 1 4 ( g ) ( 1 ) e x p r e s s l y a u t h o r i z e s t h e<br />

search of a person of a lawfully apprehended individual without<br />

further justification.<br />

( 2 ) S e a r c h f o r w e a p o n s a n d d e s t r u c t i b l e e v i d e n c e . R u l e<br />

314(g)(2) delimits the area that can be searched pursuant to an<br />

apprehension and specifies that the purpose of the search is only<br />

to locate weapons and destructible evidence. This is a variation of<br />

the authority presently in the Manual and is based upon the<br />

Supreme Court’s decision in Chimel v. California, 395 U.S. 752<br />

(1969). It is clear from the Court’s decision in United States v.<br />

Chadwick, 438 U.S. 1 (1977), that the scope of a search pursuant<br />

to a lawful apprehension must be limited to those areas which an<br />

individual could reasonably reach and utilize. The search of the<br />

area within the immediate control of the person apprehended is<br />

thus properly viewed as a search based upon necessity— whether<br />

one based upon the safety of those persons apprehending or upon<br />

the necessity to safeguard evidence. Chadwick, holding that police<br />

could not search a sealed footlocker pursuant to an arrest,<br />

stands for the proposition that the Chimel search must be limited<br />

by its rationale.<br />

That portion of the 1969 Manual rule.subparagraph dealing<br />

with intrusive body searches has been incorporated into Rule 312.<br />

Similarly that portion of the Manual dealing with search incident<br />

to hot pursuit of a person has been incorporated into that portion<br />

of Rule 315 dealing with exceptions to the need for search warrants<br />

or authorizations.<br />

1984 Amendment: Subsection (g)(2) was amended by adding<br />

language to clarify the permissible scope of a search incident to<br />

apprehension of the occupant of an automobile based onNew York<br />

v. Belton, 453 U.S. 454 (1981). The holding of the Court used the<br />

term “automobile” so that word is used in the rule. It is intended<br />

that the term “automobile” have the broadest possible meaning.<br />

(3) Examination for other persons. Rule 314(g)(3) is intended<br />

to protect personnel performing apprehensions. Consequently, it is<br />

extremely limited in scope and requires a good faith and reasonable<br />

belief that persons may be present who might interfere with<br />

the apprehension of individuals. Any search must be directed<br />

towards the finding of such persons and not evidence.<br />

An unlawful apprehension of the accused may make any subsequent<br />

statement by the accused inadmissible, Dunaway v. New<br />

York, 442 U.S. 200 (1979).<br />

1994 Amendment. The amendment to Mil. R. Evid. 314(g)(3),<br />

based on Maryland v. Buie, 494 U.S. 325 (1990), specifies the<br />

ANALYSIS OF THE MILITARY RULES OF EVIDENCE<br />

App. 22, M.R.E. 315(a)<br />

circumstances permitting the search for other persons and distinguishes<br />

between protective sweeps and searches of the attack<br />

area.<br />

Subsection (A) permits protective sweeps in the military. The<br />

last sentence of this subsection clarifies that an examination under<br />

the rule need not be based on probable cause. Rather, this subsection<br />

adopts the standard articulated in Terry v. Ohio, 392 U.S. 1<br />

(1968) and Michigan v. Long, 463 U.S. 1032 (1983). As such,<br />

there must be articulable facts that, taken together with the rational<br />

inferences from those facts, would warrant a reasonably<br />

prudent officer in believing the area harbors individuals posing a<br />

danger to those at the site of apprehension. The previous language<br />

referring to those “who might interfere” was deleted to conform<br />

to the standards set forth in Buie. An examination under this rule<br />

is limited to a cursory visual inspection of those places in which a<br />

person might be hiding.<br />

A new subsection (B) was also added as a result of Buie,<br />

supra. The amendment clarifies that apprehending officials may<br />

examine the “attack area” for persons who might pose a danger to<br />

apprehending officials. See Buie, 494 U.S. at 334. The attack area<br />

is that area immediately adjoining the place of apprehension from<br />

which an attack could be immediately launched. This amendment<br />

makes it clear that apprehending officials do not need any suspicion<br />

to examine the attack area.<br />

(h) Searches within jails, confinement facilities, or similar facilit<br />

i e s . P e r s o n n e l c o n f i n e d i n a m i l i t a r y c o n f i n e m e n t f a c i l i t y o r<br />

housed in a facility serving a generally similar purpose will normally<br />

yield any normal Fourth Amendment protections to the<br />

reasonable needs of the facility. See, United States v. Maglito,20<br />

C.M.A. 456, 43 C.M.R. 296 (1971). See also Rule 312.<br />

(i) Emergency searches to save life or for related purpose. This<br />

type of search is not found within the 1969 Manual provision but<br />

is in accord with prevailing civilian and military case law. See,<br />

United States v. Yarborough, 50 C.M.R. 149, 155 (A.F.C.M.R.<br />

1975). Such a search must be conducted in good faith and may<br />

not be a subterfuge in order to circumvent an individual’s Fourth<br />

Amendment protections.<br />

(j) Searches of open fields or woodlands. This type of search is<br />

taken from 1969 Manual paragraph 152. Originally recognized in<br />

Hester v. United States, 265 U.S. 57 (1924), this doctrine was<br />

revived by the Supreme Court in Air Pollution Variance Board v.<br />

Western Alfalfa Corp., 416 U.S. 861 (1974). Arguably, such a<br />

search is not a search within the meaning of the Fourth Amendment.<br />

In Hester, Mr. Justice Holmes simply concluded that “the<br />

special protection accorded by the 4th Amendment to the people<br />

in their [persons, houses, papers, and effects] is not extended to<br />

the open fields.” 265 U.S. at 59. In relying on Hester, the Court<br />

in Air Pollution Variance Board noted that it was “not advised<br />

that he [the air pollution investigator] was on premises from<br />

which the public was excluded.” 416 U.S. at 865. This suggests<br />

that the doctrine of open fields is subject to the caveat that a<br />

reasonable expectation of privacy may result in application of the<br />

Fourth Amendment to open fields.<br />

(k) Other searches. Rule 314(k) recognizes that searches of a<br />

type not specified within the Rule but proper under the Constitution<br />

are also lawful.<br />

Rule 315 Probable cause searches<br />

(a) General Rule— Rule 315 states that evidence obtained pur-<br />

A22-27

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