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Military Search and Seizure Laws

General rule. Illegally obtained evidence is admissible if it inevitably would have been discovered through independent, lawful means.See Mil. R. Evid. 311(b)(2).

Nix v. Williams , 467 U.S. 431 (1984). Accused directed police to murder victim’s body after illegal interrogation. The body was admissible because it would have inevitably been discovered; a systematic search of the area where the body was found was being conducted by 200 volunteers.

Rationale. The police should not benefit from the illegality, but should also not be put in a worse position.


United States v. Kozak , 12 M.J. 389 (C.M.A. 1982). The illegal search of train station locker and seizure of hashish, which exceeded authority to wait for accused to open locker and then apprehend him, did not so taint apprehension of accused as to make subsequent seizure of drugs after accused opened locker inadmissible. Drugs would have been inevitably discovered.

United States v. Carrubba , 19 M.J. 896 (A.C.M.R. 1985). Evidence found in the trunk of the accused’s car admissible despite invalid consent to search. Evidence inevitably would have been discovered as police had probable cause and were in process of getting search authorization.

United States v. Kaliski , 37 M.J. 105 (C.M.A. 1993). Inevitable discovery doctrine should be applied to witness testimony only if the prosecution establishes witness is testifying of her own free will, independent of illegal search or seizure. Testimony of the accused’s partner in sodomy should have been suppressed where she testified against the accused only after police witnessed sodomy during an illegal search.

Computers Inevitable discovery is a commonly argued exception is otherwise unlawful computer searches. See the United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008) (finding results of unlawful search admissible but with only 3 judges finding inevitable discovery as the basis for admissibility);
The United States v. Osorio , 66 M.J. 632 (A.F. Ct. Crim. App. 2008) (finding forensic examiner’s search of computer unlawful because it went beyond the scope of the warrant and refusing to allow inevitable discovery exception based on facts of the case).

Distinguish between “independent source” and “inevitable discovery.”

Independent source deals with facts. Did police in fact find the evidence independently of the illegality?

Inevitable discovery deals with hypotheticals. Would the police have found the evidence independently of the illegal means?


The Fourth Amendment to the U.S. Constitution establishes the right to be free from unreasonable searches and seizures. Army LE personnel must know and understand the law surrounding the Fourth Amendment and lawful searches and seizures; failure to understand and act according to the Fourth Amendment, and subsequent judicial rulings, can result in the exclusion of evidence. This is known as the exclusionary rule. The exclusionary rule applies to—

  • Evidence obtained as a result of an unlawful search or seizure violated the Fourth Amendment rights of the accused.
  • Any derivative evidence obtained as a result of an unlawful search.
  • This includes any evidence obtained as a result of the original Fourth Amendment violation, as a product of the violation, or as evidence that flowed from the violation, often referred to as the fruit of the poisonous tree.Ucmjarticle120329 Gonzalez &Amp; Waddington - Attorneys At Law

The following key criteria need to be considered to determine if there is a violation of the Fourth Amendment:
Whether there is an intrusion into an area where a person has a reasonable expectation of privacy. Areas, where a reasonable expectation of privacy is typically understood to exist, include within an individual’s home, personal belongings, automobile, desk, lockers, personal computers, personal cell phones, items on the individual’s body (including clothing), and other areas. Exceptions are discussed later in this section.

Whether the intrusion was effected by a U.S. Government official or agent. The Fourth Amendment does not apply unless there is U.S. Government intrusion. Private searches and foreign searches are not covered by the Fourth Amendment as long as the private individual or foreign officials are not acting as agents of the U.S. Government.

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