Authority of Military Investigators to Request Search Warrants Under Rule 41

Authority of Military Investigators to Request Search
Warrants Under Rule 41
There is no legal im pedim ent to the Attorney G eneral's am ending 28 C.F.R . § 60.2(g) to add m ilitary
m em bers of D epartm ent o f Defense investigative agencies to the list of law enforcem ent officers
authorized to seek and execute search warrants pursuant to Rule 41 of the Federal Rules o f Civil
Procedure
The Posse C om itatus Act does not prohibit the issuance o f search warrants to m ilitary investigators
engaged in the enforcem ent of the U niform Code of M ilitary Justice (UCM J), since that statute
only restricts m ilitary involvement in civilian law enforcem ent activities.
M ilitary investigators engaged in the enforcem ent of the UCM J may be regarded as “federal law
enforcem ent officers” within the scope of Rule 41, and federal m agistrates would thus be
authonzed to issue civilian search warrants to them upon the appropriate am endm ent of,28 C .F .R .
§ 60.2(g).
October 18, 1982
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
This memorandum responds to a request originally filed with this Office by the
General Counsel of the Department of Defense (DOD) on December 7, 1979,
and renewed by the General Counsel on March 26, 1982, concerning the
issuance of search warrants to military investigators pursuant to Rule 41 of the
Federal Rules of Criminal Procedure.1Specifically, DOD seeks an amendment to
1 This request has had a long and circuitous history. Following the December 7, 1979, request, this Office
received a memorandum dated December 18. 1979, from the Criminal Division's Office of Legislation questioning
whether DOD investigators who are authorized to enforce the Uniform Code of Military Justice (UCMJ) are
“engaged in the enforcement of the criminal laws" within the meaning of Rule 4 1(h) so as toqualify for authorization
by the Attorney General to request search warrants, and, whether a violation of the UCMJ is a “criminal offense" so
as to provide a basis for the issuance of a warrant under Rule 41. The memorandum also questioned whether military
investigators or civilian investigators under military direction fell within the category of “federal law enforcement
officer[s]'' authonzed by Rule 41(a) to request issuance of search warrants. These issues were discussed with the
Defense Department's Office of General Counsel; on April 17, 1980, the Office of General Counsel formally
submitted its views on the matter. See letter of Apr. 17, 1980. from Associate General Counsel Dondy, Department
of Defense, to Assistant Attorney General Hannon, Office of Legal Counsel.
On November 18, 1980, this Office transmitted to the Cnminal Division a memorandum setting forth our
conclusion that federal courts would generally lack jurisdiction to issue search warrants for violations of the UCMJ
On February 27, 1981, the Criminal Division responded with a memorandum supporting the view taken in our
memorandum.
On October 8, 1981, this Office advised the General Counsel o f the Department of Defense of the Justice
Department's views regarding its earlier request and of our intention, based on those views, to recommend to the
Attorney General that § 60 2(g) be repealed altogether. On March 26, 1982, the General Counsel responded with a
memorandum reiterating DOD's view that there are no legal impediments to extending the § 60.2(g) authonty to
request search warrants to military Defense investigators and renewed DOD’s request for such an amendment.
Upon further reflection and analysis of the issues raised by DOD's request, we have reached the conclusions, set
forth in the text above, which are contrary to those tentatively reached by this Office and the Criminal Division in our
earlier consideration of the issue.
567
§ 60.2(g) of Title 28 of the Code of Federal Regulations which would permit
military members of the various DOD investigative agencies, as well as the
civilian agents presently authorized by that regulation, to request from federal
magistrates search warrants to investigate violations of the Uniform Code of
Military Justice (UCMJ), 10 U .S.C . § 801-940.
Section 60.2(g) was codified in 1979, pursuant to Attorney General Order No.
826-79, which revised the catalogue of officials authorized to request search
warrants under Rule 41 of the Federal Rules of Criminal Procedure to include
“ [a]ny civilian agent of the Department of Defense who is authorized to enforce
the Uniform Code of Military Justice” (UCMJ). Attorney General Order No.
826-79, 44 Fed. Reg. 21785 (1979). The order was issued in response to a
request by the Department of Defense for designation of civilian agents of the
Defense Investigative Service, Army Criminal Investigation Command, Naval
Investigative Service, and Air Force Office of Special Investigations as persons
empowered to obtain search warrants under Rule 41 when they are otherwise
“authorized to enforce laws of the United States.”2
At the time that the order was under consideration, the Department’s initial
concern was whether the grant of such authority to agents of the military
departments would violate the Posse Comitatus Act, 18 U.S.C. § 1385, which
generally prohibits the use of military personnel for civilian law enforcement
purposes.3 This concern was quickly eliminated in view of the Act’s explicit
exception from its prohibition of those “cases and . . . circumstances” in which
the use of the military is “expressly authorized by the Constitution or Act of
Congress.” Because 10 U.S.C. §§ 802, 807, 816-26 and 846-474 expressly
authorize the Armed Forces to enforce the UCMJ, we concluded that the Posse
Comitatus Act posed no impediment to military requests for, and execution of,
search warrants for that purpose.5 Because DOD’s original request for warrant
authority was with respect to civilian DOD agents only, this Office did not
consider whether there existed any potential legal impediments to the exercise of
such authority by military DOD agents.
In considering DOD’s request that § 60.2(g) be expanded “to include all DOD
investigators, regardless of whether they are military or civilian, in the enforce­
2 See H ammond, Deputy Assistant Attorney General, Office o f Legal Counsel, “Memorandum for Philip B.
Heymann, Assistant Attorney G eneral, Criminal Division, re. Authority of Department of Defense Civilian Agents
to Obtain Search W arrants'’ (Nov. 16, 1978); H annon, Assistant Attorney General, Office of Legal Counsel,
“M emorandum for Philip Heymann, Assistant Attorney G eneral, Criminal Division, re: Department of Defense
Request to A mend Attorney General Order 5 1 0 -7 3 ” (Sept. 11, 1978).
3 The Posse Comitatus Act provides that
[wjhoever, except in cases and under circumstances expressly authorized by the Constitution or
Act o f C ongress, willfully uses any part o f the Army o r the Air Force as a posse comitatus or
otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two
years, or both.
18 U .S C. § 1385. See generally Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am
Crim. L Rev. 703 (1976); M eeks, Illegal Law Enforcement ■Aiding Civil Authorities in Violation c f the Posse
Comitatus Act, 70 Mil. L. Rev. 83 (1975)
4 These sections set forth the arrest and apprehension procedures for persons subject to the Code and procedures
for courts-martial
5 See H ammond, “M emorandum for Philip B . Heymann” (Nov. 16, 1978), supra; Harmon, “Memorandum for
Philip Heymann" (Sept. 11, 1978), supra.
568
ment of the Uniform Code of Military Justice,”6 we were confronted by two
issues: first, whether the Posse Comitatus Act would bar the extension of
§ 60.2(g) to military investigators engaged in the enforcement of the UCMJ even
though it would not bar such activity by civilian employees of DOD; and, second,
whether Rule 41 of the Federal Rules of Criminal Procedure authorizes United
States magistrates to issue search warrants in aid of the enforcement of the
UCMJ. We conclude that the exception contained in the Posse Comitatus Act
permitting the Armed Forces to enforce the UCMJ encompasses military as well
as civilian DOD investigators, and that DOD investigators may be authorized by
the Attorney General to seek search warrants from United States magistrates,
pursuant to Rule 41, for the enforcement of the UCMJ.7
Nevertheless, although we conclude that no legal impediments exist to grant­
ing DOD’s request for expanded authority under § 60.2(g), there well may exist
policy reasons for the Attorney General, in the exercise of his discretion under
Rule 41(h), to deny this authority. This memorandum is therefore being for­
warded to you through the Assistant Attorney General in charge of the Criminal
Division for any comments that that Division may have on this policy issue.
I. The Posse Comitatus Act
As indicated above, the Posse Comitatus Act excepts from its general prohibi­
tion against the use of military personnel for law enforcement purposes those
“cases and . . . circumstances” in which the use of the military is “expressly
authorized by the Constitution or Act of Congress.” 18U.S.C. § 1385. We relied
on this exception— as applied to the military’s statutory authorization to enforce
the UCMJ— when we made our original determination, regarding Attorney
General Order No. 826-79, that the Posse Comitatus Act would not prohibit the
involvement of civilian DOD agents in military law enforcement activities even
though such agents may be subject generally to military control. Although DOD
did not request our opinion at that time regarding the impact of the Posse
Comitatus Act on the involvement of military agents in the enforcement of the
UCMJ, the statutory authorizations for law enforcement activities contained in
the UCMJ do not distinguish between military and civilian agents of the Depart­
ment of Defense. See, e.g., 10 U.S.C. § 807; Manual for Courts-Martial (1969
Rev. ed.) 11 19. Indeed, the concerns which gave rise to the Posse Comitatus Act,
enacted in 1878, involved the perceived potential for abuse in circumstances
where persons subject to military law and discipline— who, because of their
higher duty to obey orders without question, were thought to be less sensitive to
legal restraints and constitutional rights— might become involved in civilian law
enforcement.8 However, there was never any question of the propriety of military
6 Rushforth, Assistant General Counsel for Intelligence, International and Investigative Programs, Department
of Defense, Letter to John Hannon (Dec. 7, 1979)
7 We note that the regulatory provision pursuant to which DOD seeks warrant authority requires that, except for
“in the very rare and emergent case,” the agent seeking a search warrant obtain the concurrence of the appropriate
United States Attorney's Office. See 28 C F R . § 60 1 (1981).
8 See. e g , 7 Cong Rec 3581, 3678-79, 4240-4247 (1878). See generally Lawton, Deputy Assistant Attorney
General, Office o f Legal Counsel, Letter to General Counsel, Department of Defense (M ar 24, 1978).
569
personnel engaging in military law enforcement activities— i.e., enforcing the
UCMJ against those who are subject to the UCMJ. To the contrary, Congress
specifically so provided. See, e. g. , 10 U.S.C. §§ 802, 807, 816-26, 846-47.
Thus, the same statutory exceptions to the Posse Comitatus Act which permitted
us to make our initial determination that civilian investigators could lawfully
engage in UCMJ law enforcement activities would also support a similar deter­
mination regarding military investigators.
II. Rule 41 Authority to Issue Search W arrants to Enforce the UCMJ
Rule 41 authorizes “federal magistrate[s] [and] judge[s] of . . . state court[s]
of record,” having jurisdiction over the property to be searched, to issue search
warrants upon the request of a federal law enforcement officer, defined as “any
government agent . . . who is engaged in the enforcement of the criminal laws
and is within any category of officers authorized by the Attorney General to
request the issuance of a search warrant.” Fed. R. Crim. R 41(a), (h). Subsection
(c) provides that the warrant “shall be directed to a civil officer of the United
States authorized to enforce or assist in enforcing any law thereof or to a person so
authorized by the President of the United States.” Rule 41 was promulgated
pursuant to 18 U .S.C . § 3771, which authorizes the Supreme Court to:
prescribe, from time to time, rules of pleading, practice, and
procedure with respect to any or all proceedings . . . in criminal
cases and proceedings to punish for criminal contempt of court in
the United States district courts . . . and in proceedings before
United States magistrates.
Two lines of inquiry are suggested by the language of Rule 41 as relevant to our
consideration of whether DOD investigators— whether military or civilian— may
request search warrants before United States magistrates. One inquiry is whether
military and civilian investigators engaged in enforcement of the UCMJ may be
regarded as “federal law enforcement officers” for purposes of Rule 41; the other
inquiry is whether there is power under Rule 41 to issue search warrants in aid of
enforcement of the UCMJ.
A. D O D Investigators as “Federal Law Enforcement Officers”
The first line of inquiry involves a determination whether DOD investigators
engaged in the enforcement of the UCMJ may be regarded as “federal law
enforcement officers” within the scope of Rule 41. As noted above, subsection
(h) of Rule 41 defines “federal law enforcement officer” as a government agent
who is both “engaged in the enforcement of the criminal laws” and “authorized
by the Attorney General to request the issuance of a search warrant.” Without
regard to the latter condition, which the Attorney General may, in the exercise of
his discretion, provide, the focus of this inquiry is whether agents engaged in the
570
enforcement of the UCMJ are “engaged in the enforcement of the criminal laws”
as contemplated by Rule 41.
We begin our analysis by noting that many offenses which are violations of the
UCMJ also constitute violations of Title 18, the federal criminal code,9 or have
counterparts in the civilian criminal laws enforced by the States.10 In addition,
Article 134 incorporates “all . . . crimes and offenses not capital . . . [t]hough
not specifically mentioned” in the Code as violations of the UCMJ. Such offenses
are no less “criminal” because they are punishable by courts-martial rather than
in criminal proceedings in federal or state courts. See generally O ’Callahan v.
Parker, 395 U.S. 258 (1969); Grafton v. United States, 206 U.S. 333 (1907);
United States v. Trottier, 9 M.J. 337 (U.S.C.M .A. 1980); United States v.
Harris, 8 M.J. 52 (U.S.C.M .A. 1979). Moreover, even those offenses which are
purely military and would not be punishable as crimes in civilian courts" are
considered by both civilian courts and military courts to be “crimes” punishable
by courts-martial. See generally O ’Callahan v. Parker, 395 U.S. at 265-66
(“Article 134 . . . punishes as a crime ‘all disorders and neglects to the prejudice
of good order and discipline in the armed forces.’ ”) (emphasis added); United
States v. Levy, 39 C .M .R . 672 (1968); petition for review denied, 18
U.S.C.M .A. 627 (1969) (petitioner also filed several habeas petitions in the
civilian courts, culminating in Parker v. Levy, 417 U.S. 733 (1974)).12
Secondly, examination of the legislative history of the UCMJ leads to the
conclusion that the drafters envisioned the punitive articles of the Code as
constituting criminal offenses. In the 1949 hearings before a subcommittee of the
House Committee on Armed Services, the chairman of the Committee’s working
group which drafted the Code described the Committee’s efforts to reconcile the
various definitions of the punitive offenses used by the military services in their
respective service manuals, and noted that the Committee tried to pattern the
Code after modem state penal codes. See Uniform Code c f M ilitary Justice:
Hearings on H. R. 2498 Before Subcomm. No. 1 cf the House Comm, on Armed
Services, 81st Cong., 1st Sess., at 1237—41 (1949). See also H.R. Rep. No. 491,
81st Cong., 1st Sess. (1949); S. Rep. No. 486, 81st Cong., 1st Sess. (1949).
Throughout these hearings and reports, the punitive articles, including the
9 See, e.g , Art. 81 (§ 371) (conspiracy to defraud or commit offense against the United States); Art. 88 (§ 871)
(threats against the President), Art. 90 (§ 111) (assaulting certain officers), Art. 94 (§ 2193) (revolt or mutiny of
seamen). See also Art. 95 (§§ 751-2); Art. 96 (§ 755), Art 104 (§§ 794, 798), Art. 106 (§ 794(b)); Art. 107
(§ 1001); Art. 116(§ 2101); Art. 118(§ 1111); Art. 119(§ 1112); Art 120(§§ 2031-2), Art. 121 (§§ 641,661);
Art. 122 (§ 2111-12); Art. 124 (§ 114); Art 126 (§ 81), Art. 128 (§ 113); Art. 131 (§ 1621), and A ft. 132
(§§ 1002, 1003, 1025)
10 See, e g , A it 118 (murder); Art. 119 (manslaughter); Art 120(rape), A rt 121 (larceny); Art. 123 (forgery),
and Art. 128 (assault).
11 See. e.g.. Art. 83 (fraudulent enlistment), Art. 85 (desertion); Art. 86 (absent without leave). Art. 87 (missing
movement); Art. 89 (disrespect toward superior commissioned officer), Art. 113 (misbehavior of a sentinel); Art.
117 (provoking speeches and gestures); Art 133 (conduct unbecoming an officer and a gentleman).
12 See also 1 W. Winthrop, Military Law and Precedents 107-08 (2d ed. 1920)'
[TJhe specific military offenses may be divided into (1) those which are purely military and (2) those
which are also crimes at the civil law . But in regard to these two forms of offenses it is to be
observed that all are criminal and all military— criminal because the jurisdiction of courts-martial is
criminal only; military because all offenses of officers and soldiers cognizable by courts-martial are
necessarily military offenses
571
general articles 133 and 134, were referred to as “crimes.” Id. From these reports
it seems fairly clear that Congress’ intent in enacting the UCMJ was the passage
of a code by which the military could maintain the high level of discipline and
order which is so necessary to its proper functioning, infractions of which would
constitute criminal offenses.13
The Supreme Court’s pronouncements in Parker v. Levy, 417 U.S. 733, 749
(1974), and M iddendorf v. Henry, 425 U.S. 25, 34 (1976), that “the UCMJ
cannot be equated to a criminal code,” and that a summary court-martial is not a
“ ‘criminal prosecution’ within the meaning of the Sixth Amendment” do not
deter us from our conclusion that the enforcement of the UCMJ constitutes
“enforcement of the criminal laws” within the purview of Rule 41. Those
pronouncements were made by the Court in the context of challenges to the
constitutionality of particular provisions of the Code,14and certain aspects of the
summary court-martial procedures,15 and not to the “criminal” nature of the
punitive articles of the Code for purposes of securing warrant authority.
An issue related to the authority of DOD agents to request search warrants
under Rule 41 concerns the apparent limitation contained in subsection (h)
regarding who may execute the warrant. Subsection (c) provides that warrants
issued pursuant to Rule 41 “shall be directed to a civil officer of the United States
authorized to enforce or assist in enforcing any law thereof or to a person so
authorized by the President of the United States.” (Emphasis added.) While we
13 In a memorandum to the Assistant Attorney General of this Office dated Apnl 17, 1980 at pp 2 -3 , the
Associate Genera! Counsel of DOD pointed out numerous other indicia of the UCMJ’s character as a code of
“crim inal” laws.
The Congress has provided that persons convicted by courts-martial are to be treated as other
convicted felons and denied the right to receive Government annuities or retirement pay (5 U.S C
§ 8312). The executive branch of the Federal Government also recognized lhat the UCMJ is a
“criminal code” when (he Rules Governing Petitions for Executive Clemency were promulgated in
O cto b ero f 1962. 28C .F.R § 1.1 These rules deal with convictions both in federal criminal courts
and military courts-martial where persons convicted in these tribunals seek to be pardoned by the
President In addition, a large percentage of states treat convictions by courts-martial as a federal
conviction for purposes of denying the right to vote in general elections. (AFP 211-4)
In the context o f “search and seizure,” th e UCMJ constitutes a body of “criminal laws,” subjecting
the enforcers thereof to the potential sanction o f the exclusionary rule should they violate the Fourth
Amendment s proscription against unreasonable searches and seizures. See United States v Fim-
mano. 8 M J 197 (C.M A. 1980). U nited States v Ezell, 6 M J 307 (C M A 1979) . . [In
addition, the Department of Justice] has promulgated a regulation that provides for the operation of
interagency criminal information exchange systems entitled “Criminal Justice Information Sys­
tems ” 28 C F R Part 20. All arrests for violations of the punitive articles of the UCMJ. even those
with no civilian counterpart, are routinely reported to the DOJ for inclusion in the individual's
criminal record. Indeed, DOJ treats the purely military offense of AWOL as a felony and
authorizes their law enforcement officials to arrest and detain [any] AWOL suspect without a warrant
and without the suspect having committed any offense in the presence of the arresting officer.
14 In Parker v. Levy. 417 U .S. at 749, the C ourt upheld Articles 133 (10 U.S C § 933, which punishes a
commissioned officer for “conduct unbecoming an officer and a gentleman”) and 134 (10 U S.C. § 934, which
punishes any person subject to the Code for, inter alia, “all disorders and neglects to the prejudice of good order and
discipline in the armed forces”) against First and Fifth Amendment challenges that those provisions were overbroad
and unconstitutionally vague in violation of the Due Process Clause, observing that, because of the peculiar
exigencies of the military community, the UCMJ regulates "a far broader range of the conduct of military personnel
than a typical state criminal code regulates of the conduct of civilians ” Id. at 750.
|S In M iddendorf v. Henry, 425 U S. at 38. the C ourt held that the Sixth Amendment right to counsel did not attach
in summary court-m artial proceedings because such proceedings are sufficiently distinct from “traditional civilian
criminal trialfsj” as to fall outside the scopc of “criminal proceeding.” as contemplated by the Sixth Amendment.
572
have no doubt that “civil officer” in this context means “nonmilitary officer,” 16we
do believe that military and civilian investigators engaged in the enforcement of
the UCMJ are persons “authorized by the President” “to enforce or assist in
enforcing” the laws of the United States, so as to come within the limitation
contained in subsection (h) setting forth to whom warrants under Rule 41
properly may be issued.
Paragraph 19a of Manual for Courts-Martial (Rev. ed. 1969), E.O. 11476
(June 19, 1969) 34 Fed. Reg. 10503, which authorizes “[a]ll commissioned
officers, warrant officers, petty officers, noncommissioned officers, and, when in
the execution of their . . . police duties, Air Force security police, military
police, members of the shore patrol, and such persons as are designated by proper
authority to perform . . . police duties, including duties as criminal inves­
tigators" to enforce the UCMJ by apprehending persons reasonably believed to
have violated the Code, provides the requisite presidential authority (emphasis
added). As no serious question can be raised regarding the UCMJ’s status as
“law[s] of the United States,” we believe that DOD investigators, both military
and civilian, are entitled to receive civilian search warrants upon proper applica­
tion pursuant to Rule 41.
B. United States M agistrates’ Authority to Issue Warrants to DOD Agents
The second line of inquiry concerns the authority of United States magistrates
to issue search warrants pursuant to Rule 41 for the enforcement of the UCMJ.
The prerequisites for a magistrate’s or court’s issuance of a lawful search warrant
are: (1) that the court have jurisdiction over the place to be searched; (2) that the
warrant is based on probable cause to believe that the items to be searched for will
be found on the premises; and (3) that the warrant specify with particularity the
items or physical effects to be obtained. See generally 8A Moore’s Federal
Practice 11 41.02 (2d ed. 1981). There is no requirement that the offenses for
which evidence is sought with warrants issued pursuant to Rule 41 be violations
of Title 18 of the United States Code— it is sufficient that, once probable cause is
established by a federal law enforcement officer, as required by Rule 41(a), the
issuing authority have territorial jurisdiction over the place to be searched. See
United States v. Strother, 578 F.2d 397 (D.C. Cir. 1978). Thus, while the needs of
16 Prior lo the promulgation of Rule 41, the statutory provision governing search warrants authorized the issuance
of warrants "to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, or
to a person so duly authorized by the President of the United States ’’Title XI of the Espionage Act of June 15. 1917,
ch 30. 40 Stat 217, 229. The legislative history reflects that, as referred to the Senate Committee on the Judiciary,
the Espionage Act expressly permitted the issuance of warrants to military or naval officers as well as civil officers
and persons authonzed by the President to enforce the laws The Senate accepted an amendment by the Committee
deleting the inclusion of military or naval officers from the classes of persons eligible to execute warrants, but added
a proviso permitting the issuance of warrants to naval or military officers tn time of war. 55 Cong Rec 1866 (1917)
That proviso was deleted without explanation when the search warrant section was completely rewritten in
conference H .R. C onf Rep. No. 69, 65th Cong , 1st Sess. 14, 20 (1917)
In construing this provision, the Supreme Court has held that the term “civil officer” was intended by Congress to
be a limitation “that the person designated shall be a civil and not a military agent of the government " Steele v.
United States, 267 U .S. 498, 507 (1925) See also United Stales v. Pennington, 635 F.2d 1387 ( 10th Cir. 1980).
573
DOD investigators to search persons subject to the Code and premises under
military control are met by “search authorizations” issued by military command­
ers or judges, their needs to search private dwellings or other premises beyond the
military’s jurisdiction for evidence of UCMJ violations can only be met by their
obtaining the authority to conduct such searches from civilian judicial au­
thorities, whether state or federal. If the civilian authorities are federal, the
proper procedure for obtaining search authority is that which is set out in Rule 41.
As circumstances presently exist, DOD investigators may obtain “authoriza­
tions to search” from military commanders or their delegees, judges, or magis­
trates upon a showing of probable cause to conduct searches of persons subject to
military law, military property, persons, and property within military control, or
nonmilitary federal property within a foreign country. Rule 315 of the Military
Rules of Evidence, Manual for Courts-Martial (Rev. ed. 1969, as amended by
Exec. Order No. 12198, Mar. 12, 1980,45 Fed. Reg. 16932,16953). Toconduct
investigations beyond the jurisdiction of these military “authorizations to
search,” DOD military agents under a military chain of command must now
enlist the aid of civilian federal investigative agencies to obtain and execute
civilian search warrants on their behalf. See Letter from Associate General
Counsel, DOD to Assistant Attorney General, Office of Legal Counsel (April 17,
1980), supra. In contrast, civilian agents of the DOD, by virtue of Attorney
General Order No. 826-79, now may seek directly from U.S. magistrates, with
the concurrence of the local United States Attorney’s office and pursuant to Rule
41, search warrants for the enforcement of the UCMJ. Although military agents
and, prior to 1979, civilian DOD agents, are completely dependent upon a
determination by civilian agencies to expend time and human resources to
obtain, and in some cases, execute warrants for investigation of offenses over
which they exercise no particular law enforcement responsibilities or otherwise
have very little interest, the fact remains that without regard to whether the
warrant is ultimately issued to military or civilian investigators, DOD agents or
Assistant U.S. Attorneys, United States magistrates have been exercising their
authority properly under Rule 41 to issue search warrants for the enforcement of
the UCMJ.
The use of civilian search warrants in military investigations has been con­
templated at least since the 1909 Articles of War, Art. 106 of which provided for
civilian apprehension of military deserters. See 35 Stat. 622 (1909); 34 U.S.C.
§ 1011 (1946), and the present-day Art. 8, 10 U .S.C. § 808 (1976). In addition,
the Military Rules of Evidence, recently amended by E.O. 12198 (March 12,
1980), specifically define “search warrant” as permission to search and seize
issued by “competent civilian authority.” See Rule 315(b)(2). Were such use not
contemplated, there would exist a gap between investigations for which the
military courts and commanders had authority to order searches and those over
which civilian courts exercised jurisdiction, into which would fall a rather large
number o f military investigations o f UCMJ offenses for which crucial evidence is
lodged off-base. Such an occurrence was evidently not within the contemplation
of Congress (in placing no “civilian” limitations on Rule 41), the President (in
574
issuing the Manual for Courts-Martial), the military courts, or indeed, the
Supreme C ourt.17
III. Policy Considerations
While we do not believe that any purely legal problems are presented by
DOD’s request that military agents be granted the authority, under § 60.2(g), to
seek and execute Rule 41 search warrants directly, we believe that the appropri­
ateness of such authority and its implications, as a policy matter, should be
examined carefully before a decision to grant DOD’s request is made. For
example, a primary area of concern might be whether adequate safeguards exist
to protect the privacy interests of civilians, whose, premises could be searched as
a subject of third-party searches by military agents for evidence of UCMJ
violations by persons subject to the Code. Although this situation does not raise
Posse Comitatus Act problems of military involvement in civilian law enforce­
ment, the concerns which gave rise to the proscriptions contained in the 1878 Act
could be raised as potentially legitimate concerns today.
This concern, however, may be more abstract than real. The practical dif­
ference made by granting military agents § 60.2(g) authority is arguably negligi­
ble. Without § 60.2(g) authority, a military agent must now find a civilian law
enforcement officer to accompany him to the courthouse and officially request
the search warrant on his behalf. It is not clear whether warrants obtained in this
manner also require civilian execution, although DOD has informed us that once
the warrant has been obtained, military investigative agents do execute the
warrant, unaccompanied by civilians. With § 60.2(g) authority, military agents,
like their civilian counterparts, may, upon obtaining the concurrence of the
appropriate United States Attorney’s office, go to the courthouse, unaccom­
panied by a civilian law enforcement officer, to request search warrants which
they may execute during the course of their investigations. Thus, assuming that
military agents already have been executing search warrants obtained for their
investigations, the only practical difference that designating military agents
under § 60.2 would make is that military agents would no longer have to wait for
civilian law enforcement authorities to physically accompany them to the
courthouse. Such designation would not, except for “in the very rare and
emergent case,” relieve the agent of the responsibility under § 60.1 to obtain
approval from civilian authorities before seeking the warrant.
In addition, with respect to third-party searches, the Attorney General’s
guidelines promulgated pursuant to the Privacy Protection Act of 1980, 42
U.S.C. § 2000aa, so severely restrict the propriety and scope of third-party
searches as to minimize substantially the concerns expressed above regarding
military searches of civilian premises. See 28 C.F.R. § 59 (1981). The guidelines
17 See statement of facts in Schlesitxger v. Councilman, 420 U S. 738, 741 (1975), in which the Court recounts the
apprehension of a military defendant by civilian law enforcement authorities who, based on probable cause
established by military investigations, searched defendant's off-post apartment and found illegal drugs Defendant
was then turned over to military authorities for prosecution under the UCMJ.
575
establish strict criteria and procedural requirements which must be met before a
search warrant may be used to obtain documentary evidence held by disinterested
third parties. Nevertheless, the guidelines would not apply in circumstances
where the “third-party” civilian is a participant in the criminal activity, or is
believed by the investigator to have reason to harbor or protect the alleged
offender. Nor would the guidelines apply to “contraband, the fruits or instrumen­
talities of a crime, or things otherwise criminally possessed,” 18 such as drugs—
the detection of which, and subsequent prosecution of military offenders, is a
very high priority for DOD investigators. Thus, the impact of these guidelines on
military investigations remains to be determined.
IV. Conclusion
For the reasons stated above, we have concluded that there are no legal
impediments to granting DOD’s request to include military agents among the list
of law enforcement officers in § 60.2 who are authorized to request search
warrants pursuant to Rule 41. We would add that, in view of some of the issues
raised in part III above, the policy implications of such authority should be
explored further.
T h eo d o r e B . O lso n
Assistant Attorney General
Office of Legal Counsel
,BSee 28 C.F.R. § 59 2(c).
576