Overview of neutral and detached requirement:
The official issuing a search authorization must be neutral and detached.
See Mil. R. Evid. 315(d). See also United States v. Ezell , 6 M.J. 307 (C.M.A. 1979) (discusses four separate cases where commanders’ neutrality was attacked).
- A commander is not neutral and detached when he or she:
- Initiates or orchestrates the investigation (has personal involvement with informants, dogs, and controlled buys); or,
- Conducts the search.
- A commander may be neutral and detached even though he or she:
- Is present at the search;
- Has personal knowledge of the suspect’s reputation;
- Makes public comments about crime in his or her command; or,
- Is aware of an on-going investigation.
- “The participation of a commander in investigative activities in furtherance of command responsibilities, without more, does not require a per se disqualification of a commander from authorizing a search under M.R.E. 315.” See U.S. v. Huntzinger , 69 M.J. 1, 6 (C.A.A.F. 2010).
- Alternatives: Avoid any potential “neutral and detached” problems by seeking search authorization from:
- A military magistrate; or,
- The next higher commander.