The Fourth Amendment in the Military

  1. The Fourth Amendment applies to soldiers.
    United States v. Stuckey, 10 M.J. 347, 349 (C.M.A. 1981).
    But see Lederer and BorchDoes the Fourth Amendment Apply to the Armed Forces? 144 Mil. L. Rev. 110 (1994) (this article points out that the Supreme Court has never expressly applied the Fourth Amendment to the military).
  2. The balancing of competing interests is different in military society. A soldier’s reasonable expectation of privacy must be balanced against:
    1. National security;
    2. Military necessity (commander’s inherent authority to ensure the safety, security, fitness for duty, good order and discipline of his command);
    3. Effective law enforcement
  3. The Military Rules of Evidence (Mil. R. Evid.) codify constitutional law.
    1. Military Rules of Evidence that codify Fourth Amendment principles: (1) Mil. R. Evid. 311, Evidence Obtained From Unlawful Searches and Seizures. (2) Mil. R. Evid. 312, Body Views and Intrusions. (3) Mil. R. Evid. 313, Inspections and Inventories in the Armed Forces. (4) Mil. R. Evid. 314, Searches Not Requiring Probable Cause. (5) Mil. R. Evid. 315, Probable Cause Searches. (6) Mil. R. Evid. 316, Seizures. (7) Mil. R. Evid. 317, Interception of Wire and Oral Communications.
    2. Which law applies — recent constitutional decisions or the Military Rules of Evidence? (1) General rule: the law more advantageous to the accused will apply. Mil. R. Evid. 103(a) Drafters’ Analysis. MCM, App. 22. (2) Minority view: “These ‘constitutional rules’ of the Military Rules of Evidence were intended to keep pace with, and apply to the military, the burgeoning body of interpretive constitutional law . . . not to cast in legal or evidentiary concrete the Constitution as it was known in 1980.”
      United States v. Postle, 20 M.J. 632, 643 (N.M.C.M.R. 1985). (3) Some Military Rules of Evidence provide exceptions that permit application of recent constitutional decisions to the military.
      See Mil. R. Evid. 314(k) (searches of a type valid under the Constitution are valid in military practice, even if not covered by the Military Rules of Evidence).
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