Gonzalez & Waddington – Attorneys at Law

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Lawyers can impeach with illegally seized evidence

Illegally obtained evidence may be used to impeach accused’s in-court testimony on direct examination or to impeach answers to questions on cross-examinationUnited States v. Havens , 44 U.S. 962 (1980). Defendant’s testimony on direct that he did not know his luggage had a T-shirt that was being used for smuggling cocaine allowed admissibility of illegally obtained T-shirt on cross-examination to impeach defendant’s credibility. See also Walder v. United States , 347 U.S. 62 (1954).

Mil. R. Evid. 311(b)(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.

Searches and Seizures

A search is an examination, authorized by law, of a specific person, property, or area for specified evidence or property or of a specific person for the purpose of seizing such property, evidence, or person. A seizure is the taking of property from the possessor by an authorized person or the restriction of freedom of movement of an individual against their will by an agent of the government. Army LE personnel must have probable cause, search authorization, or a search warrant for a search and seizure of evidence to be lawful, unless a valid exception exists.

A search is not considered unreasonable when conducted pursuant to a search warrant or authorization that was issued upon a showing of probable cause. Probable cause to conduct a search or seizure exists when there is a reasonable belief that a crime has been committed and that the person, property, or evidence sought in connection with the crime is located in the place (a room, barracks, privately owned vehicle, quarters) or on the person to be searched.

The existence of probable cause is required for search or apprehension of a suspect. MRE 315(f)(2) covers the rules for these searches.

A competent military or civilian authority must make a probable cause determination that there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched and approve the search authorization. This probable cause determination is based on the totality of the circumstances at the search time.

A competent civilian authority is required when USACIDC SAs conduct criminal investigations off the installation and the Uniform Code of Military Justice (UCMJ) is not applicable or in cases dealing with civilians on a military installation who are not subject to the UCMJ. A competent military authority includes a military judge, a military magistrate, or a commander “who has control over the place where the property or person to be searched is situated or found.” MRE 315(d) outlines who has the power to authorize a search.

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Although a search authorization is generally required, there are instances when a search authorization is not required.

The following searches are exceptions to the search authorization requirements:

  • Consent search.
  • Search incident to lawful apprehension.
  • Operable vehicle search.
  • Exigent circumstances.
  • Medical emergencies.
  • Plainview.
  • Investigative stops, also known as “Terry stops.”
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