INTRODUCTION TO MILITARY LAW

WEEK 11 Pretrial Confinement Article 31 v. Miranda Search and Seizure INTRODUCTION TO MILITARY LAW

This Week … Is there bail in the military? How does Miranda apply or does it? Search and Seizure 4th Amendment Inspections Right of Privacy?

Pretrial Confinement/Restraint Is there bail in the military? Jail “opportunity” very limited Extra options available Conditions on Liberty Orders directing a person to do or refrain from a specified act Restriction in lieu of arrest Moral restraint by oral or written orders – perform duty Arrest Restraint by oral or written orders – no duty Pretrial Confinement Physical restraint

Pretrial Restraint Must have Probable Cause to order any form of pretrial restraint Offense triable by court-martial Person restrained committed offense Restraint ordered required by the circumstances Pretrial Confinement – Most severe form RCM 304 Same PC requirement Lesser forms of restraint must be “inadequate” Additional due process requirements

Pretrial Confinement Procedures Rights advisement – “promptly” Nature of offense Right to remain silent Right to retain civilian counsel Procedures for review of confinment decision Three Mandatory reviews 48 hour PC determination Usually by individual commander – must be neutral 72 hour Commander’s memo Usually same as 48 hours is CC is neutral 7 Day review Appointed Magistrate Non-adversarial Standard for review Release or keep confined Can’t set limits on release

Pretrial Confinement Mandatory review by military judge Once sent forward to trial Upon motion by defense Abuse of discretion standard If prisoner released CC can’t send back Unless additional misconduct

Confinement Credit Allen Credit: 1 for 1 credit against sentence to confinement US v. Allen - 81 days prior to trial Mason Credit: 1 for 1 credit for pretrial restraint tantamount to confinement Article 13 Credit: Unlawful pretrial punishment Intentional pretrial punishment Pretrial confinement conditions more rigorous than necessary to ensure presence at trial Does not require “jail” and can be multiple day credit in discretion of military judge US v. Mosby pretrial detainee placed in maximum custody/solitary confinment based on seriousness of offense Military judge - no intent to punish and no infliction of unduly rigorous circumstances Burden on accused to show entitled to additional credit Court affirms - no intent to punish therefore no credit US v. Fischer - pay stopped while in pretrial at ETS Various sex offenses with minors Alleged Article 13 violation If acquitted, would be reimbursed No intent to punish and application of policy reasonable - no violation

Confinement Credit Continued RCM 305 Credit: Failure to comply with procedural requirements 1 for 1 but in addition to Allen credit If no confinement adjudged, can apply credit to other portions of the sentence Confinement starts speedy trial clock

Article 31 v. Miranda MRE 304 Confessions and Admissions Involuntary? Not admissible (and your little dog too!!)‏ No rights Coercion Promises of immunity “Mind Games” Deception permissible only after waiver Unlawful command influence Burden shifting to prosecution to prove voluntariness

Article 31 Article 31 Does 3 things Prohibits compelled self-incrimination Imposes a warnings requirement Excludes involuntary statements from court-martial When? Who? Where? Does not address right to counsel When not required? Non-testimonial acts Handwriting/voice exemplars Urine/blood sample Consent to search Remedy for violation? Exclusion

Right to Counsel – MRE 305 5th Amendment Custodial interrogation Miranda v. Arizona Unequivocal request? Stop! Accused can reinitiate Break in custody before waiver 6th Amendment Counsel in all criminal prosecutions Attaches at “initiation of adverse judicial proceedings” Preferral of charges Offense specific “Prosecutorial forces of an organized society and their minions” are barred from initating contact after invocation Neither custody or “coercive inlfuences” are required

Article 31 Cases US v. Duga Facts: Amn Byers - SF member questioned by OSI about appellant Amn Byers and appellant social acquaintances and same rank Amn Byers on duty, met appellant on bike, engaged in conversation and asked “what he was up to” Appellant provided incriminating response then Amn Byers asked follow up question No Article 31 warnings - alleged at trial and on appeal Court: did not fall within purview of Article 31 Purpose of Article 31 - provide service members protection necessary because of subtle pressures of military society Only applies to situations where there may be pressure on an individual to respond Not done in an official capacity - not acting on behalf of OSI Motivated by his own personal curiosity Appellant did not perceive interrogation as official in nature

US v. Ravenel Premeditate murder/adultery Accused intervened in domestic between Covin and spouse - held Covin until Gaines assisted spouse in leaving Ravenel left apartment and took bat with him, going to MP station MPs responded and found Covin lying on floor - died with 3-4 minutes CID interviewed Gaines, Covin and spouse then Ravenel Questioned as witness - did not suspect him Agents later “collectively decided” to warn and requestion same day and then three days later Court: Should have warned after initial admission of assault Court: Does Article 31 precisely parallel 5th Amend? Article 31 is broader and is applied differently (Oregon v. Elstad)‏ Presumption of taint applies to all subsequent interrrogations following unwarned questioning No “cleansing statement” - same investigator - unwarned admission referenced in subsequent interviews Remanded - decide sufficient attenuation

Search and Seizure First – 4th Amendment APPLIES to the military (US v. Ezell, 6 MJ 307 (CMA 1979))‏ Some exceptions made by rule US v. Stuckey, 10 MJ 347 (CMA 1981): “That is not to say, however, that in its application … [it] does not take into account the exigencies of military necessity and unique conditions … [in the military] Military commander’s power to authorize searches is independent of the Warrant Clause of the 4th Amendment No oath/affirmation requirement Must be based on PC (MRE 315)‏ Limitations on use Searches governed by MRE 311 – 317 Normal 4th Amendment analysis applies

Overseas Application Not applicable to searches by foreign officials Unless US agents “participated” in search “Direct contribution” Not “mere presence”, interpreter, routine furnishing of information If US participation, normal 4th Amendment standards apply If no US participation, standard is “gross and brutal maltreatment” regardless of compliance with foreign rules No standing to complain of violation of international treaties or international law

Expectation of Privacy In general, same rules apply - MRE 311 Standing based on expectation of privacy in the area to be searched and has a legitimate interest in property to be seized Expectation of privacy in military may be greatly diminished (US v. Middleton, 10 MJ 123 (CMA 1981))‏ None in common areas such as dorms, unlocked locker in common work area, use of drug dogs in parking lots and hallways, etc… Government property – mostly caselaw Reduced expectation in barracks room (inspections)‏ 4th Amendment applies to government quarters Office – reduced expectation of privacy

Types of Searches Probable Cause MRE 315 Civilian Search Warrant Search Authorization Express Permission Written or Oral “Competent military authority” Scope Power to authorize Commander Military magistrate Military judge Process Exigent circumstances

Types of Searches - No PC required Entry/Exit of installation Search of Government Property Consider personal expectation of privacy Consent Oral or written Scope Withdrawal Article 31 not required Stop and frisk Incident to apprehension Inspections - a different beast

Inspections - MRE 313 Not considered a search under 4th Amendment Examination of whole or part of a unit, organization, vessel, aircraft Incident to Command Primary purpose is ensure “security, fitness or good order and discipline” Includes examination to locate and confiscate unlawful weapons or other contraband Order to produce bodily fluid is permissible under this rule (urinalysis program)‏ Inspection with primary purpose of obtaining evidence for use in court is not an inspection

Inspections Continued Conducted in a reasonable fashion Everyone treated same - no “different intrusions” Can’t pick specific people Mixed purpose is OK - primary purpose must be unit readiness With or without notice Not required to be in writing Better practice: put in writing to document purpose and procedures Weapons, contraband, evidence may be seized Stop and get search authorization Those executing may have some discretion Gate inspections and urinalysis program

US v. Hayes Barracks security inspection Upon entry Contents of box Sign in/Sign out and logging of handcarried items Instituted by commander Discovered stolen property Objected to admission Court: Primary issue was scope limited in accordance with legitimate governmental purpose Purpose - secure living environment Appellant aware of procedures BUT: lacking information regarding level of discretion, results of refusing the search Recognizes military must possess substantial discretion over internal discipline BUT: prosecutors must demonstrate the command interest and methods RESULT: suppression

Lawful but not “useable” Commander directed urinalysis or other “search” (MRE 312)‏ Does not fit any recognized exceptions to PC requirement Based on reasonable suspicion not probable cause Can’t be without cause “order” as part of inspection is not “commander directed” Violate 4th amendment but “lawful” UCMJ, regulation and courts limit use to “administrative action” Exclusionary Rule - MRE 311 Unlawful search or seizure = exclusion

Computers No expectation of privacy in email stored on government computer system “monitor” v. “search” Log on Banner Sys Admin can monitor system for security Balance between provider’s needs and user’s privacy If offense discovered, SA must report incident and not engage in any independent investigation SA can’t be agent of law enforcement Must get warrant/authorization or permission from “Designated Approving Official” for network search No reasonable expectation of privacy

Computers PC or virtual private drive requires authorization/warrant Member has a reasonable expectation of privacy Employer can search if no merely to obtain evidence and search is justified by work purpose and reasonable in scope Commander directed monitoring of specific email and internet accounts is impermissible without authorization Seizure v. Search of computer Can seize but not search without authorization House analogy

US v. Long 2006 - expectation of privacy in emails stored on government computer system Drug use case - SA retrieved emails from system at direction of IG investigator looking into improper relationship between accused and an officer Emails seized solely for law enforcement purposes and went beyond work related monitoring (O’Connor v. Ortega application)‏ Subjective and Objective reasonable expectation of privacy Banner qualified expectation but did not extinguish it - password + language of banner Qualified with unique aspects of military environment GC Opinion

NEXT WEEK Courts-Martial Types and process

INTRODUCTION TO MILITARY LAW