Section 400.635 Evidence Obtained from Unlawful Searches and Seizures

Section 400.635  Evidence Obtained from Unlawful Searches

and Seizures

a)         General.

Evidence obtained as a result of an unlawful search or seizure made by a

person acting in a governmental capacity is inadmissible against the accused

if:

1)         Objection.

The accused makes a timely motion to suppress or an objection to the evidence

under this Section; and

2)         Adequate

Interest.  The accused had a reasonable expectation of privacy in the person,

place or property searched; the accused had a legitimate interest in the

property or evidence seized when challenging a seizure; or the accused would

otherwise have grounds to object to the search or seizure under the U.S.

Constitution as applied to members of the armed forces.

b)         Exceptions

1)         Evidence

that was obtained as a result of an unlawful search or seizure may be used to

impeach by contradiction the in-court testimony of the accused.

2)         Evidence

that was obtained as a result of an unlawful search or seizure may be used when

the evidence would have been obtained even if the unlawful search or seizure

had not been made.

3)         Evidence

that was obtained as a result of an unlawful search or seizure may be used if:

A)        The

search or seizure resulted from an authorization to search, seize or apprehend

issued by an individual competent to issue the authorization under Section

400.650(b)(4) or from a search warrant or arrest warrant issued by a competent

civilian authority;

B)        The

individual issuing the authorization or warrant had a substantial basis for

determining the existence of probable cause; and

C)        The

officials seeking and executing the authorization or warrant reasonably and

with good faith relied on the issuance of the authorization or warrant.  Good

faith shall be determined on an objective standard.

c)         Nature

of Search or Seizure.  A search or seizure is "unlawful" if it was

conducted, instigated or participated in by:

1)         Military

Personnel

ble cause; and

C)        The

officials seeking and executing the authorization or warrant reasonably and

with good faith relied on the issuance of the authorization or warrant.  Good

faith shall be determined on an objective standard.

c)         Nature

of Search or Seizure.  A search or seizure is "unlawful" if it was

conducted, instigated or participated in by:

1)         Military

Personnel.  Military personnel or their agents and was in violation of the U.S.

Constitution as applied to members of the armed forces, an Act of Congress

applicable to trials by court-martial that requires exclusion of evidence

obtained in violation of that Act or Sections 400.640 through 400.655 of this

Manual;

2)         Other

Officials.  Other officials or agents of the U.S. federal government or its

possessions, and state or local government and was in violation of the U.S. Constitution,

or is unlawful under the principles of law generally applied in the trial of

criminal cases in the U.S. district courts involving a similar search or

seizure; or

3)         Officials

of a Foreign Government.  Officials of a foreign government or their agents and

was obtained as a result of a foreign search or seizure that subjected the

accused to gross and brutal maltreatment.  A search or seizure is not "participated

in"  merely because a person is present at a search or seizure conducted

in a foreign nation by officials of a foreign government or their agents, or

because a person acted as an interpreter or took steps to mitigate damage to

property or physical harm during the foreign search or seizure.

d)         Motions

to Suppress and Objections

1)         Disclosure.

Prior to arraignment, the prosecution shall disclose to the defense all

evidence seized from the person or property of the accused, or believed to be owned

by the accused, that it intends to offer into evidence against the accused at trial

to mitigate damage to

property or physical harm during the foreign search or seizure.

d)         Motions

to Suppress and Objections

1)         Disclosure.

Prior to arraignment, the prosecution shall disclose to the defense all

evidence seized from the person or property of the accused, or believed to be owned

by the accused, that it intends to offer into evidence against the accused at trial.

2)         Motion

or Objection

A)        When

evidence has been disclosed under subsection (d)(1), any motion to suppress or

objection under this subsection (d) shall be made by the defense prior to

submission of a plea.  In the absence of such a motion or objection, the

defense may not raise the issue at a later time except as permitted by the

military judge for good cause shown.  Failure to so move or object constitutes

a waiver of the motion or objection.

B)        If the

prosecution intends to offer evidence seized from the person or property of the

accused that was not disclosed prior to arraignment, the prosecution shall

provide timely notice to the military judge and to counsel for the accused.  The

defense may enter an objection at that time and the military judge may make

such orders as are required in the interest of justice.

C)        If

evidence is disclosed as derivative evidence under this subsection (d) prior to

arraignment, any motion to suppress or objection under this subsection (d)

shall be made in accordance with the procedure for challenging evidence under subsection

The

defense may enter an objection at that time and the military judge may make

such orders as are required in the interest of justice.

C)        If

evidence is disclosed as derivative evidence under this subsection (d) prior to

arraignment, any motion to suppress or objection under this subsection (d)

shall be made in accordance with the procedure for challenging evidence under subsection

(d)(2)(A).  If the evidence has not been so disclosed prior to arraignment, the

requirements of subsection (d)(2)(B) apply.

3)         Specificity.

The military judge may require the defense to specify the grounds upon which

the defense moves to suppress or object to evidence.  If defense counsel,

despite the exercise of due diligence, has been unable to interview adequately

those persons involved in the search or seizure, the military judge may enter

any order required by the interests of justice, including authorization for the

defense to make a general motion to suppress or general objection.

4)         Rulings.

A motion to suppress or an objection to evidence made prior to plea shall be

ruled upon prior to plea unless the military judge, for good cause, orders that

it be deferred for determination at the trial of the general issue or until

after findings, but no such determination shall be deferred if a party's right

to appeal the ruling is affected adversely.  When factual issues are involved

in ruling upon the motion or objection, the military judge shall state

essential findings of fact on the record.

e)         Burden

of Proof

1)         General.

When an appropriate motion or objection has been made by the defense under subsection

dings, but no such determination shall be deferred if a party's right

to appeal the ruling is affected adversely.  When factual issues are involved

in ruling upon the motion or objection, the military judge shall state

essential findings of fact on the record.

e)         Burden

of Proof

1)         General.

When an appropriate motion or objection has been made by the defense under subsection

(d), the prosecution has the burden of proving by a preponderance of the

evidence that the evidence was not obtained as a result of an unlawful search

or seizure, that the evidence would have been obtained even if the unlawful

search or seizure had not been made, or that the evidence was obtained by

officials who reasonably and with good faith relied on the issuance of an

authorization to search, seize or apprehend, a search warrant, or an arrest

warrant.

2)         Derivative

Evidence.  Evidence that is challenged under this Section as derivative

evidence may be admitted against the accused if the military judge finds by a

preponderance of the evidence that the evidence was not obtained as a result of

an unlawful search or seizure, that the evidence ultimately would have been

obtained by lawful means even if the unlawful search or seizure had not been

made, or that the evidence was obtained by officials who reasonably and with

good faith relied on the issuance of an authorization to search, seize or

apprehend, a search warrant, or an arrest warrant.  Notwithstanding other

provisions of this subsection (e)(2), an apprehension made in a dwelling in a

manner that violates Code Section 7 does not preclude the admission into

evidence of a statement of an individual apprehended provided that:

A)        the

apprehension was based on probable cause;

B)        the

statement was made subsequent to the apprehension at a location outside the

dwelling; and

C)        the

statement was otherwise in compliance with this Section.

3)         Specific

Motions or Objections

s Code Section 7 does not preclude the admission into

evidence of a statement of an individual apprehended provided that:

A)        the

apprehension was based on probable cause;

B)        the

statement was made subsequent to the apprehension at a location outside the

dwelling; and

C)        the

statement was otherwise in compliance with this Section.

3)         Specific

Motions or Objections.  When a specific motion or objection has been required

under subsection (d)(3), the burden on the prosecution extends only to the

grounds upon which the defense moved to suppress or object to the evidence.

f)         Defense

Evidence.  The defense may present evidence relevant to the admissibility of

evidence as to which there has been an appropriate motion or objection under

this Section.  An accused may testify for the limited purpose of contesting the

legality of the search or seizure giving rise to the challenged evidence.  Prior

to the introduction of that testimony by the accused, the defense shall inform

the military judge that the testimony is offered under this subsection (f).  When

the accused testifies under this subsection (f), the accused may be

cross-examined only as to the matter on which he or she testifies.  Nothing

said by the accused on either direct or cross-examination may be used against

the accused for any purpose other than in a prosecution for perjury, false

swearing, or the making of a false official statement.

g)         Scope

of Motion and Objections Challenging Probable Cause

1)         General.

If the defense challenges evidence seized pursuant to a search warrant or

search authorization on the grounds that the warrant or authorization was not based

upon probable cause, the evidence relevant to the motion is limited to evidence

concerning the information actually presented to, or otherwise known by, the

authorizing officer, except as provided in subsection (g)(2).

2)         False

Statements

fense challenges evidence seized pursuant to a search warrant or

search authorization on the grounds that the warrant or authorization was not based

upon probable cause, the evidence relevant to the motion is limited to evidence

concerning the information actually presented to, or otherwise known by, the

authorizing officer, except as provided in subsection (g)(2).

2)         False

Statements.  If the defense makes a substantial preliminary showing that a

government agent included a false statement knowingly and intentionally or with

reckless disregard for the truth in the information presented to the

authorizing officer, and if the allegedly false statement is necessary to the

finding of probable cause, the defense, upon request, shall be entitled to a

hearing.  At the hearing, the defense has the burden of establishing by a preponderance

of the evidence the allegation of knowing and intentional falsity or reckless

disregard for the truth.  If the defense meets its burden, the prosecution has

the burden of proving by a preponderance of the evidence, with the false

information set aside, that the remaining information presented to the

authorizing officer is sufficient to establish probable cause.  If the

prosecution does not meet its burden, the objection or motion shall be granted

unless the search is otherwise lawful under this Section.

h)         Objections

to Evidence Seized Unlawfully.  If a defense motion or objection under this Section

is sustained in whole or in part, the members may not be informed of that fact

except that the military judge must instruct the members to disregard evidence.

i)          Effect

of Guilty Plea.  Except as otherwise expressly provided in Code Section 45, a

plea of guilty to an offense that results in a finding of guilty waives all

issues under the Fourth Amendment to the U.S. Constitution, this Section, and Sections

400.640, 400.645, 400.650(a) and (b), and 400.655 with respect to the offense,

whether or not raised prior to plea.

(

Il. Mil. R. Evid

i)          Effect

of Guilty Plea.  Except as otherwise expressly provided in Code Section 45, a

plea of guilty to an offense that results in a finding of guilty waives all

issues under the Fourth Amendment to the U.S. Constitution, this Section, and Sections

400.640, 400.645, 400.650(a) and (b), and 400.655 with respect to the offense,

whether or not raised prior to plea.

(

Il. Mil. R. Evid. 311)