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

App. 22, M.R.E. 315(h) APPENDIX 22
not, however, result in exclusion of the evidence. Similarly, Rule
314(h)(2) provides for the inventory of seized property and provisions
of a copy of the inventory to the person from whom the
property was seized. Noncompliance with the subdivision does
not, however, make the search or seizure unlawful. Under Rule
315(h)(3) compliance with foreign law is required when executing
a search authorization outside the United States, but noncompliance
does not trigger the exclusionary rule.
Rule 316 Seizures
(a) General Rule. Rule 316(a) provides that evidence obtained
pursuant to the Rule is admissible when relevant and not otherw
i s e i n a d m i s s i b l e u n d e r t h e R u l e s . R u l e 3 1 6 r e c o g n i z e s t h a t
searches are distinct from seizures. Although rare, a seizure need
not be proceeded by a search. Property may, for example, be
seized after being located pursuant to plain view, see subdivision
(d)(4)(C). Consequently, the propriety of a seizure must be considered
independently of any preceding search.
(b) Seizures of property. Rule 316(b) defines probable cause in
the same fashion as defined by Rule 315 for probable cause
searches. See the Analysis of Rule 315(f)(2). The justifications for
seizing property are taken from 1969 Manual Para. 152. Their
number has, however, been reduced for reasons of brevity. No
distinction is made between “evidence of crime” and “instrumentalities
or fruits of crime.” Similarly, the proceeds of crime are
also “evidence of crime.”
1984 Amendment: The second sentence of subsection (b) was
deleted based on Illinois v. Gates, 462 U.S. 213 (1983). See
Analysis, Mil. R. Evid. 315(f)(1), supra.
(c) Apprehension. Apprehensions are, of course, seizures of the
person and unlawful apprehensions may be challenged as an unlawful
seizure. See, e.g., Dunaway v. New York, 442 U.S. 200
( 1 9 7 9 ) ; 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).
(d) Seizure of property or evidence.
(1) Abandoned property. Rule 316(d) restates prior law, not
addressed specifically by the 1969 Manual chapter, by providing
that abandoned property may be seized by anyone at any time.
(2) Consent. Rule 316(d)(2) permits seizure of property with
appropriate consent pursuant to Rule 314(e). The prosecution
must demonstrate a voluntary consent by clear and convincing
evidence.
(3) Government property. Rule 316(d)(3) permits seizure of
government property without probable cause unless the person to
whom the property is issued or assigned has a reasonable expectation
of privacy therein at the time of seizure. In this regard note
Rule 314(d) and its analysis.
( 4 ) O t h e r p r o p e r t y . R u l e 3 1 6 ( d ) ( 4 ) p r o v i d e s f o r s e i z u r e o f
property or evidence not otherwise addressed by the Rule. There
must be justification to exercise control over the property. Although
property may have been lawfully located, it may not be
seized for use at trial unless there is a reasonable belief that the
property is of a type discussed in Rule 316(b). Because the Rule
is inapplicable to seizures unconnected with law enforcement, it
does not limit the seizure of property for a valid administrative
purpose such as safety.
Property or evidence may be seized upon probable cause when
seizure is authorized or directed by a search warrant or authoriza-
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tion, Rule 316(d)(4)(A); when exigent circumstances pursuant to
Rule 315(g) permit proceeding without such a warrant or authorization;
or when the property or evidence is in plain view or smell,
Rule 316(d)(4)(C).
Although most plain view seizures are inadvertent, there is no
necessity that a plain view discovery be inadvertent— notwiths
t a n d i n g d i c t a , i n s o m e c o u r t c a s e s ; s e e , C o o l i d g e v . N e w
Hampshire, 403 U.S. 443 (1971). The Rule allows a seizure
pursuant to probable cause when made as a result of plain view.
The language used in Rule 316(d)(4)(C) is taken from the ALI
M O D E L C O D E O F P R E A R R A I G N M E N T P R O C E D U R E S §
260.6 (1975). The Rule requires that the observation making up
the alleged plain view be “reasonable.” Whether intentional observation
from outside a window, via flashlight or binocular, for
example, is observation in a “reasonable fashion” is a question to
be considered on a case by case basis. Whether a person may
properly enter upon private property in order to effect a seizure of
matter located via plain view is not resolved by the Rule and is
left to future case development.
1 9 8 4 A m e n d m e n t : S u b s e c t i o n ( d ) ( 5 ) w a s a d d e d b a s e d o n
United States v. Place, 462 U.S. 696 (1983).
(e) Power to seize. Rule 316(e) conforms with Rule 315(e) and
has its origin in Para. 19, MCM, 1969 (Rev.).
Rule 317 Interception of wire and oral
communication
(a) General Rule. The area of interception of wire and oral communications
is unusually complex and fluid. At present, the area
is governed by the Fourth Amendment, applicable federal statute,
DOD directive, and regulations prescribed by the Service Secretaries.
In view of this situation, it is preferable to refrain from
codification and to vest authority for the area primarily in the
Department of Defense or Secretary concerned. Rule 317(c) thus
prohibits interception of wire and oral communications for law
enforcement purposes by members of the armed forces except as
authorized by 18 U.S.C. § 2516, Rule 317(b), and when applicable,
by regulations issued by the Secretary of Defense or the
Secretary concerned. Rule 317(a), however, specifically requires
exclusion of evidence resulting form noncompliance with Rule
317(c) only when exclusion is required by the Constitution or by
an applicable statute. Insofar as a violation of a regulation is
concerned, compare United States v. Dillard, 8 M.J. 213 (C.M.A.
1980) with United States v. Caceres, 440 U.S. 741 (1979).
(b) Authorization for Judicial Applications in the United States.
Rule 317(b) is intended to clarify the scope of 18 U.S.C. § 2516
by expressly recognizing the Attorney General’s authority to authorize
applications to a federal court by the Department of Def
e n s e , D e p a r t m e n t o f H o m e l a n d S e c u r i t y , o r t h e m i l i t a r y
d e p a r t m e n t s f o r a u t h o r i t y t o i n t e r c e p t w i r e o r o r a l
communications.
(c) Regulations. Rule 317(c) requires interception of wire or oral
communications in the United States be first authorized by statute,
see Rule 317(b), and interceptions abroad by appropriate
regulations. See the Analysis to Rule 317(a), supra. The Committee
intends 317(c) to limit only in interceptions that are non
consensual under Chapter 119 of Title 18 of the United States
Code.