U.S. v. Guzman, 52 M.J. 318

Core Criminal Law Subjects: Evidence: Search and Seizure › Wiretaps

1. “Neither the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants.” United States v. Caceres, 440 U.S. 741, 744 (1979)
2. MRE 317(a) is not applicable to instances of recorded conversations with consenting persons because such government conduct does not violate either the Fourth Amendment or a statute applicable to servicemembers
3. MRE 317(c) does not contain an express exclusionary rule; however, excluding evidence from a court-martial to remedy a regulatory violation may be appropriate if the alleged violation implicates constitutional or statutory rights
4. provisions of former DoD Directive dealing with wiretaps, which provided for delegation of authority to authorize consensual intercept requests to certain upper level management officials, did not present the type of issue that required the Court of Appeals for the Armed Forces to create an exclusionary rule when none was provided either in the Constitution or by a statute or regulation
5. where appellant did not conduct his activities in reliance upon any limits on delegation of the Navy’s wiretap approval authority, and where appellant was not harmed by fact that the interception was approved by the Deputy General Counsel rather than his immediate superior, exclusion is not required because appellant’s due process rights were not violated

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. excluding evidence from a court-martial to remedy a regulatory violation may be appropriate if the alleged violation implicates constitutional or statutory rights