Gonzalez & Waddington – Attorneys at Law

Litigating Search and Seizure in the Military

Disclosure by prosecution.

Prior to arraignment, the prosecution must disclose to the defense all evidence seized from the person or property of the accused that it intends to offer at trial. Mil. R. Evid. 311(d)(1). See Appendix A for sample disclosure.

Motion by the defense.

The defense must raise any motion to suppress evidence based on an improper search or seizure prior to entering a plea. Absent such a motion, the defense may not raise the issue later, unless permitted to do so by the military judge for good cause. Mil. R. Evid. 311(d)(2).

Burden of proof.

When a motion has been made by the defense, 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 or that some other exception applies. Mil. R. Evid. 311(e)(1).


Consent. Government must show by clear and convincing evidence that the consent to search was voluntary. Mil. R. Evid. 314(e)(5).

Exception: “Subterfuge” Rule. If the rule is triggered, the prosecution must show by clear and convincing evidence that the primary purpose of the government’s intrusion was administrative and not a criminal search for evidence. Mil. R. Evid. 313(b).

Exception: Eyewitness Identification. If military judge determines identification is result of lineup conducted w/o presence of counsel, or appropriate waiver, subsequent identification is unlawful unless Gov’t can establish by clear and convincing evidence that eyewitness identification is not tainted. Mil. R. Evid. 321(d)(1).

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Effect of guilty plea.

A plea of guilty waives all issues under the Fourth Amendment, whether or not raised prior to the plea. Mil. R. Evid. 311(i).

Exception: conditional guilty plea approved by military judge with prior consent from the convening authority. R.C.M. 910(a)(2).

Appellate Standard of Review.

For Fourth Amendment issues, the standard of review for a military judge’s evidentiary ruling is an abuse of discretion standard. United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999). Within this context, the abuse of discretion standard becomes a mixed question of fact and law. A military judge’s “findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record.” Id. A military judge’s conclusions of law are reviewed under the de novo standard. The appellate courts will reverse for an abuse of discretion only if “the military judge’s findings of fact are clearly erroneous or if his [or her] decision is influenced by an erroneous view of the law.” United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995).

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