At trial, the military judge denied a defense motion to suppress the results of a command authorized search. On appeal NMCCA found error and took corrective action. The Government appealed and CAAF had before it three issues.
"I. Whether the lower court erred in overturning the military judge’s admission of evidence where the military judge found the official who authorized the search was the acting commander with full authority and control over the remain behind element, except for authority to impose nonjudicial punishment and convene courts-martial?
II. Whether the lower court erroneously applied the exclusionary rule under Mil. R. Evid. 311(a)(3) by failing to appropriately balance the benefits of deterrence against the costs to the justice system, and thereby erred in overturning the military judge’s decision not to apply the exclusionary rule?
III. Whether the lower court erred in finding the good-faith exception did not apply where this court has, in United States v. Chapple, 36 M.J. 410 (C.M.A. 1993), held the exception applies even when the individual issuing that search authorization lacked authority under Mil. R. Evid. 315(d)(1), and here law enforcement reasonably believed the acting commander was authorized to issue search authorizations?"
CAAF “answer[ed] the first certified issue in the affirmative and d[id] not reach the second and third certified issues."
"The first certified issue concerns Major Benbow’s competence to authorize the searches and seizures at issue in this case. M.R.E. 315(d) provides in pertinent part: “A search authorization under this rule is valid only if issued by an impartial individual in one of the categories set forth in subdivision (d)(1) and (d)(2).”
Appellee contends that Major Benbow could not authorize, under M.R.E. 315(d)(1), the searches and seizures at issue because she was not made the commander or acting commander of MWSS-373 by any regulation or valid order. The Government, however, argues that Major Benbow could authorize the searches and seizures under M.R.E. 315(d)(1) because Lieutenant Colonel Ward’s power to authorize searches as the commander of MWSS-373 “devolved” upon Major Benbow. Slip op. at 8.
While deployed, the unit commander had left behind a major in charge to do everything the commander could do except convene courts or impose nonjudicial punishment.
"The Government does not contend that Lieutenant Colonel Ward or any other commander formally detailed Major Benbow to serve as the commander of MWSS-373 under Navy regulations. The Government also does not contend that MWSS-373 was formally divided into two units." Slip op. at 8, n.5.
CAAF determined that power to authorize searches by the major “devolved” on her. The court relies particularly on United States v. Kalscheuer, 11 M.J. 373 (C.M.A. 1981)—the essence of that case being that while commanders cannot “delegate” search power the power could devolve when the commander is “absent.” The court looked to several factors which justify their conclusion that the search authorization power here devolved on the major. The factors include,
"(1) the location of the commander;
(2) the accessibility of the commander;
(3) whether the commander contemplated a devolution of authority;
(4) whether the deputy was exercising command functions; and
(5) how others within the unit understood the role and authority of the deputy." Slip op. at 11.
So, CAAF applies a totality of the circumstances (with some guidance to what some circumstances are important) to find the search was properly authorized, but the Government should not do something similar again.
We have seen the cases where the appellate court exhorts the government not to do something or do something right with an implied ‘or else.’ And later cases where the exhortations continue and nothing else. See Issue II which was rendered moot by the decision.
"Although we uphold the search authorizations in this case, we conclude by observing that much of the uncertainty and litigation over the searches and seizures was avoidable. When commanders know that they will be absent for foreseeable, long-term periods, they can avoid legal controversies regarding authority over military justice matters by taking the formal steps required by service regulations to ensure clarity regarding this authority. They need not rely on the possibility of the implied devolution of their powers upon a subordinate officer." Slip op. at 16.
My trial notebook is asking me what about this.
Another golden thread in the military justice tapestry is that "either the President in promulgating the Manual for Courts-Martial or the Armed Services by adopting regulations can go even further than the Constitution and the Uniform Code in providing safeguards for military personnel." United States v. McGraner, supra at 414-15. Regarding these regulations, we have held that a service must abide by them where the underlying purpose of the regulation is the protection of personal liberties or interests. See United States v. Dunks, 1 M.J. 254 (C.M.A. 1976). More recently the Supreme Court and this Court have recognized that the Government is bound by its own regulations, especially when the regulations confer a right or benefit on an individual. See United States v. Caceres, 440 U.S. 741 (1979); United States v. Pollard, 27 M.J. 376 (C.M.A. 1989); United States v. Strozier, 31 M.J. 283 (C.M.A. 1990).
We acknowledge the potential applicability of the legal principle that provides "a government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests." United States v. Russo, 1 M.J. 134, 135 (C.M.A. 1975) (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 98 L. Ed. 681 , 74 S. Ct. 499 (1954)). In an appropriate case, timely assertion of this principle could influence the outcome of the proceedings in an accused's favor.
UNITED STATES v. FRAZIER, 30 M.J. 1231
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