Now these are laws of the Navy,
Unwritten and varied they be;
And he that is wise will observe them,
Going down in his ship to the sea;—

CAPTAIN HOPWOOD R.N.

Contrary to federal criminal law,1 the military law has an unwritten or common law of crimes. The Manual for Courts-Martial, 1951, makes reference to "customs" in the sense of guidance of conduct at least eight times. Unlike the Manual for Courts-Martial, 1949, effort is even made in the newer Manual to define the word "custom".

In its legal sense the word "custom" imports something more than a method of procedure or mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common consent have attained the force of law in the military or other community affected by them. There is no such thing as a custom which is contrary to existing law or regulation."

*Major Daniel F. McConnell, USMC, received his LL.B. degree from the University of Indiana in 1954. He is admitted to practice before the Supreme Court of the State of Indiana, Federal District Courts for the Northern District of Indiana, the Supreme Court of the United States, the United States Court of Military Appeals, and the Court of Claims of the United States. For the past two years he has been serving as an Appellate Government Counsel in the Office of the Judge Advocate General of the Navy and prior to that was Chief, Trial Counsel Section, 3rd Marine Division Legal Office.

1. There are no common law offenses under the law of the United States. United States v. Dietrich, 126 F. 676 (C.C.D. Nebr. 1904); United States v. Martin, 176 Fed. 110 (D.C.N.D. Iowa 1910). In fact there is no "Federal Common Law", Erie v. Tompkins, 304 U.S. 64 (1938).

2. a. Para. 28a(3), p. 31-where an offense arises out of custom having the effect of law, words importing criminality should be used.

b. Para. 88e (1), p. 150-a part of a sentence should not be suspended if it would be contrary to the customs of the service to execute the portion of the sentence that remain unsuspended.

c. Para. 125, p. 205-Courts-martial shall not impose any punishment not sanctioned by the custom of the service..."

d. Para. 143a, p. 258-referring to official records required to be kept by custom.

e. Para. 147, p. 274-judicial notice of military custom authorized. f. Para. 152, p. 289-reference made to customary searches. g. Para. 213a, p. 382-wherein Article 134 is made applicable to offenses based upon breach of military custom.

h. Append. 8a, p. 504-The oath to be administered to court members and the law officer refers to "the custom of war in like cases".

3. Para. 213a, p. 382, MCM, 1951.

A formal discussion in the Manual of “breach of custom" as a disorder or neglect probably grew out of old Navy practice. The Navy has for a long time been familiar with customary offenses and Naval Courts and Boards refers to customs as a source of "unwritten law" or as having the force of Navy "common law".5

Unwritten law tends to merge into statutes, or, as in the case of the military, into written regulations. One would suppose that the volumes and volumes of regulations currently in effect would have eliminated the need to depend upon custom, but this is not the case.

Offenses defined by custom continue to arise. For example, in 1963, a Navy board of review was called upon to decide whether the government's proof had established the custom of the Naval Service that officers must not fraternize with enlisted men on terms of military equality." Furthermore, the Court of Military Appeals (USCMA) in 1961 indicated that an honest belief that the custom of "scrounging" or "cumshaw" was legal could raise a defensive issue requiring an instruction on mistake. The dissent in another USCMA case shows the opinion, of one judge at least, that the accused's testimony upon the custom of scrounging could impugn a plea of guilty."

Boards of review have frequently referred to military custom in decisions since 1951. Holdings at this level of review have been, for example, that an "Officer of the Day is not authorized to make a search merely by 'military custom;'" 10 but a "customary" search was approved because "customs of the service" would certainly authorize the staff judge advocate to conduct or permit a search of his own office.11 Parenthetically, in United States v. Brown,12 a USCMA case, the dissent would have authorized

4. Legal and Legislative Basis, Manual for Courts-Martial, p. 293. 5. Naval Courts and Boards, 1937, § 5d.

6. Winthrop's Military Law and Precedents, 2d Ed., p. 41–42.

7. Jackson, NCM 62 01648, (1963) (unpublished). See in this same connection NCM 278, Free, 14 CMR 466 (1953).

8. United States v. Pitts, 12 USCMA 106, 30 CMR 106 (1961). 9. United States v. Miles, 11 USCMA 622, 29 CMR 438 (1960). 10. ACM 4351, Gosnell, 3 CMR 646 (1952).

11. CM 354858, Rhodes, 8 CMR 336, (1952), aff'd. 3 USCMA 73, 11 CMR 73 (1953).

12. 10 USCMA 482, 28 CMR 48 (1959).

the "customary" search of a truck, some unknown occupant of which was suspected by a commanding officer of carrying narcotics. The USCMA reversed the conviction because "probable cause" for the search was lacking. The majority gave no consideration to a "customary search".

A board of review has examined "the applicable law including customs of the service", in order to uphold the authority of an 'officer of the day', as such, to order enlisted personnel into confinement.13

Judicial notice has been taken with the approval of USCMA of the "common knowledge in the Army . . . that medical men are always attached to units such as machine gun platoons when these units are going into combat." 14 Judicial notice was taken of the "customary duties and responsibilities of aircraft control and warning operators." 15 The allegation that the accused "did wrongfully go to sleep on duty as 'the' base telephone operator" adequately charged a simple neglect under Article 134.16 In this case the board said that it recognized "the vital function performed by the telephone communications system on any active military base" and "that the night operator must of necessity be in a conscious state in order to perform the duties of such a position."

A board of review has held that male personnel were not prohibited by custom from being in a WAF (Woman's Air Force) Day Room at 0300 hours.17 A custom of the service was not violated because an accused failed "to remove a female guest from the post until 0505 hours." 18 The board held this did not constitute an offense in violation of military custom because female guests are frequently permitted on military posts and may be permitted to spend the night. In dicta the board observed that failure to remove a female guest from men's quarters or barracks would constitute breach of a long standing custom of the service. Based in part upon this dicta, a Coast Guard decision 19 held that having a woman in the CPO quarters after midnight was a breach of a long standing custom of the service. The General Counsel said:

... the service way of life does not allow the men

13. ACM 9393, Jones, 17 CMR 904 (1954).

14. United States v. Cook, 2 USCMA 223, 8 CMR 23 (1953). 15. ACM S-15841, Harris, 25 CMR 766 (1957).

16. ACM S-15064, Thompson, 24 CMR 807, 809 (1957), pet'n den. 24 CMR 311 (1957).

17. ACM 7232, Smart, 12 CMR 826 (1953).

18. CM 366065, Hibbard, 12 CMR 492 (1953). 19. CGCMS 21293, Cole, 30 CMR 755 (1961).

who occupy these quarters the privilege of having female guests in the quarters and most assuredly not at midnight.20

Pertaining to sentencing it has been observed that "by the custom of the service" punishment for an offense in a particular case could not exceed confinement and forfeitures for four months.21 In an early Navy case it was observed that it was contrary to the customs of the naval service to restore a member to duty while a total forfeiture of pay and allowances is in effect.22

"Customs" were important to our predecessors in the uniformed services in "The Old Corps" or the "Old Navy." 23 As it appears from the frequent references to "custom" in the Manual for Courts-Martial, 1951,24 the same sort of dependence is to be the modern rule. Reported cases give every reason to believe that "custom" will continue to define offenses. It is no startling prediction that customs will continue to aid in the construction of statute law 25 and in the determination of the intent and purpose behind regulations.26 If the UCMJ is ever really tested by war or war's aftermath-—war crimes trials-it will be necessary to resort to custom for definition of offenses peculiar to war. Even today a Navy Regulation at least 40 years old requires:

27

The religious institutions and customs of foreign countries visited by persons in the naval service shall be respected.28

If customs of foreign nations "shall be respected" it is reasonable to presume that customs of our own country shall also be respected. Customs, which comprise the unwritten military law, will continue to be enforced in the future as in the past.

20. Id. at 756.

21. ACM S-3269, Fowler, 5 CMR 481 (1952) (citing cases antedating UCMJ).

22. Smith, NCM 83, 2 CMR 615 (1952).

23. Naval Customs, Traditions and Usage, 3rd Ed., VADM L. P. Lovett, USN (Ret). See also:

a. Court Martial Orders, 43 (1906) 3 b. Court Martial Orders, 33 (1914) 6 c. Court Martial Orders, 1 (1941) 61

d. Court Martial Orders, 2 (1941) 271 e. Court Martial Orders, 4 (1946) 127 24. Supra note 2.

25. United States v. Gilmore, 8 Wallace 330 (1869).

26. United States v. Gilmore, supra; United States v. Lytle, 26 Fed. Cas. 1037 (No. 15,652) (C.C.D. Ohio 1849); United States v. Maurice, 26 Fed. Cas. 1211 (No. 15,747) (C.C.D. Va. 1823). 27. Winthrop, supra note 6 at 42.

28. Article 117, U.S. Naval Regulations (1920). Article 1215, U.S. Naval Regulations (1948).

W

HEN A COMMANDING OFFICER receives information that there is stolen property or contraband located in a particular place he usually turns to his master-at-arms or provost marshal and authorizes a search of the premises and the seizure of the property. This is all right in a great many cases-assuming he has probable cause, and further assuming it is a search of property which is owned or controlled by the United States armed forces, or of property which is located within a military installation and under the jurisdiction of the officer ordering the search. In other words, a commanding officer may upon probable cause order a search on the military premises he controls, with a high expectation of having the evidence obtained thereby being ruled admissible at trial.

Frequently, though, the fruits of off-base searches authorized by the commanding officer are excluded at the court-martial.

To lessen the number of times that courtsmartial must bar the introduction of evidence illegally obtained off-base this article will discuss an instrument available to the commanding officer for gathering evidence, but seldom used the search warrant.

Briefly, some searches held to be legal will be noted, and the mechanics of using search warrants will be discussed in more detail.

Our starting point is the Fourth Amendment to the Constitution of the United States:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

*Lt. Col. Remmel H. Dudley, USMC holds the B.S. and LL.B. degrees from the University of Arkansas. He is admitted to practice before the United States Supreme Court; the Court of Appeals for the D.C. Circuit; the District Court for the District of Columbia; the Supreme Court of Arkansas; and the United States Court of Military Appeals. He retired on November 1, 1964, and is now the government relations counsel for the Metropolitan Life Insurance Company.

Actually the law of search and seizure is the result of the interplay of this Amendment, and the Fifth Amendment, which prohibits a person from being compelled to be a witness against himself.1

The Fourth Amendment does not say that searches may be made only with a search warrant. It says that citizens are to be secure against unreasonable searches. Over the years the civilian law, and the military law, have determined that certain searches are reasonable, thus lawful. For example:

1. A search conducted in accordance with the authority granted by a lawful search warrant.

2. A search of an individual's person, of the clothing he is wearing, and of the property in his immediate possession or control, conducted as an incident of lawfully apprehending him.

3. A search under circumstances demanding immediate action to prevent the removal or disposal of property believed on reasonable grounds to be criminal goods.

4. A search made with the freely given consent of the owner in possession of the property searched. 5. A search of property which is owned or controlled by the United States and is under the control of an armed force, or of property which is located within a military installation or foreign country and is owned, used, or occupied by persons subject to military law (or to the law of war), if the search has been authorized by a commanding officer (including an officerin-charge) having jurisdiction over the place where the property is located or, if the property is in a foreign country, over personnel subject to military law (or the law of war) in the place where the property is located.2

Parenthetically, Harris v. United States, 331 U.S. 145, (1947) has a table of search cases which is informative and authoritative.

In looking at the examples above, the issues. which have arisen with respect to getting evidence into the record can be visualized: issues of whether the search was incident to a lawful apprehension; 3 what constitutes freely given con

1. 79 C.J.S., Searches and Seizures, sec. 4, n. 64.

2. MCM, 1951, par. 152.

3. United States v. Summers, 13 USCMA 573, 33 CMR 105 (1963).

4

sent; who owned the property searched; 5 was it necessary to take immediate action to prevent removal; and many others.

It was noted above that the commanding officer has a tool available to him which he seldom uses, i.e., the search warrant. It must be understood that the search warrant is not to be used in every situation, nor is it designed to be. It is not a panacea for all our problems, but there indeed are some situations in which it can be employed properly, and the number and intensity of these courtroom conflicts will be reduced noticeably if the evidence offered has been obtained as a result of a lawful search under such a warrant.

This article will discuss the mechanics of its

use.

A "search warrant" is generally defined as an order in writing, in the name of the state, signed by a magistrate, and directed to a peace officer, commanding him to search for personal property and bring it before the magistrate. It is in the nature of a criminal process, and may be used only in the furtherance of criminal prosecutions."

The object of the warrant is to obtain the contraband or other specified personal property and to bring it before the magistrate.

How does one go about getting a warrant? Generally, the federal and state statutes provide that the warrants will be issued on a showing of probable cause, supported by an oath or affirmation, i.e., an affidavit. Probable cause does not mean proof beyond a reasonable doubt. It does not mean absolute certainty. It does not even mean that there must have been a crime committed. It means only that the person making the affidavit must have reasonable grounds for his belief, and if he sets out facts. in his affidavit that would lead a reasonably discreet and prudent man to believe the crime charged had been committed then we have probable cause. Mere suspicion, without reasonable grounds, is not enough. In other words, a warrant cannot be issued for an exploratory search.

The affidavit, of course, must comply with the statutory requirements, but generally it must set forth the facts which form the basis of the probable cause; must describe the place to be searched and the reasons for believing the property is located thereat; must describe the property to be seized; and name the person

4. United States v. Smith, 13 USCMA 553, 33 CMR 85 (1963). 5. United States v. Sessions, 10 USCMA 383, 27 CMR 457 (1959).

6. United States v. Ross, 13 USCMA 432, 32 CMR 432 (1963).

7. 79 C.J.S., Searches and Seizures, sec. 1.

8. Dumbra v. United States, 268 U.S. 435 (1925).

possessing the property."

It is then filed with the magistrate. Again, we look to the statute to see which magistrate is authorized to issue these writs. If you are getting a federal search warrant, it may be issued by a judge of a United States District Court, by a judge of a state court of record, or by a United States commissioner for the district in which the property sought is located.10 If you are filing it with a state magistrate the law will vary according to that state's statute. The magistrate then determines whether "probable cause" exists, and if he concurs, he issues the warrant.

The warrant will describe the premises to be searched with some particularity. The prevailing rule seems to be that the designation of the place to be searched is sufficient if the peace officer to whom the warrant is directed can locate the premises with reasonable certainty and definiteness. This much is clear: A warrant which simply directs a peace officer to search places in general is not a valid one, and the policeman exercises no discretion in selecting the place to be searched.12

The officer to whom the warrant is addressed then executes it, and makes the search and seizes the property. Armed with the warrant he has authority to use such force as is necessary, and thus may break open the doors if admittance to the premises is denied.18 In making the search, however, he should avoid unnecessary damage to the property. He must carefully follow the directions of the warrant, i.e., he must seize only the goods described in the warrant.

After the search and seizure the peace officer then makes a return to the magistrate. This simply means that he reports back to the issuing judge. Some jurisdictions require that he file a report and inventory, but this is not required in all jurisdictions.

If all the steps as prescribed by statute are followed the result should be a legal and binding search and seizure. Like any other fact or point of law, however, it may be challenged at trial and on appeal.

So far, broad terms have been used and it has been emphasized that it is vitally important to check the law of the jurisdiction.

It was mentioned that in obtaining these warrants one goes to a "magistrate." But, which

9. 47 Am. Jur., Searches and Seizures, sec. 26. 10. Fed. R. Crim. P. 41.

11. Anno: 10 A.L.R. 1555; 13 A.L.R. 1318. 12. Anno: 17 Ann. Cas. 233.

13. 47 Am. Jur., Searches and Seizures, sec. 39.

kind of "magistrate"-state or federal?

If the premises to be searched by a warrant are outside a federal reservation-as is most nearly always the case, in such places as a hotel room, a privately-owned garage, a home, or similar private place then a decision must be made whether to obtain a warrant authorized by the laws of the state where the premises are located which will be executed by a state law enforcement agent, or to obtain a warrant in accordance with federal law. The Federal Rules of Criminal Procedure, 18 U.S.C., provide in part as follows:

Rule 41. Search and Seizure

(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge of the United States or of a state, commonwealth or territorial court of record or by a United States commissioner within the district wherein the property sought is located.

(c) Issuance and Contents. * **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. ***

In other words, it will be directed to a federal police officer whether issued by a federal or state magistrate.

But, suppose the premises to be searched are within the confines of a military reservation or other federal area? As has been noted, the commanding officer already has the authority to order a search aboard the station provided he has probable cause, and usually would not need to resort to a search warrant. Conceivably, however, he might not be certain as to whether he has probable cause and thus might well want to shift this burden to a judge who must act on the same basis. In any event, if a search of a federal reservation is made under a warrant it ordinarily should be obtained from the fedaral court having jurisdiction over that area involved.11

It was said one would "ordinarily" go to the federal court-this indeed can get complicated unless the type of jurisdiction the state (in which the federal area is located) ceded to the federal government is known exactly. It must be known whether the federal government exercises "exclusive," "concurrent," "limited," or any other type of jurisdiction. In ceding jurisdiction to the federal government the states have withheld unto themselves various types of jurisdiction.15 Often, when a state cedes jurisdic

14. Weinberg v. United States, 126 F.2d 1004 (2d Cir. 1942). 15. Note, Federal Areas: The Confusion of a Jurisdictional-Geographical Dichotomy, 101 U. Pa. L. Rev. 124 (1952).

tion to the federal government it retains the right to serve civil and criminal process. But, when the process is served under this sort of retention that is as far as the agent can go. In other words, a search following the service of process would seem to be beyond the scope of such retention.16 Thus, it seems it would be wise to go to a federal court if the premises are under federal control.

If the problem arises in a foreign country, then obviously a federal or state warrant from the United States is of no value. Our courts have no power beyond their own jurisdiction. You may, however, get the foreign equivalent of a search warrant issued under the laws of that country. In United States v. Whitler," a search pursuant to a warrant issued by a British court was sustained. On Okinawa, a search pursuant to a warrant issued by a Judge of the United States Civil Administration Courts, Ryukyu Islands (USCAR) was held to be valid. 18

This article is not intended to be a complete discussion of the law respecting search warrants and seizures thereunder. Many books have been written on the subject. The purpose of this discussion is to suggest the availability of this process, and to suggest that in some situations-specifically off-base-you lessen the risk of reversal, of an otherwise valid conviction, if you search and seize under a warrant rather than proceeding without one.

For some reason the military has not used the search warrant extensively, yet the FBI, police departments, Secret Service, and others use warrants frequently and regularly. It is conceded, of course, that these civilian peace officers operate in different situations than do the military peace officers in that there are no "commanding officer authorized" searches in civilian life, but once having determined that a search warrant in an appropriate case is the proper tool the similarity becomes greater. In any event, it is suggested that it might be beneficial for our military police officers to discuss with their civilian counterparts the use of these warrants. Doubtless the civilians could be helpful to us in better understanding the procedures to be followed in using search warrants.

Some people will say obtaining a search warrant is too cumbersome, but when the government cuts corners in its investigations and fails to accord its citizens the rights given to them then it can expect to have its convictions (Continued on Page 51)

16. Munster & Larkin, Military Evidence, sec. 9.1c, n. 34 (1959). 17. ACM 4948, 5 CMR (1952), pet. denied, 2 USCMA 672, 5 CMR 131 (1952).

18. United States v. Vierra, 14 USCMA 48, 33 CMR 260 (1963).