U.S. v. Armendariz, 80 M.J. 130

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not abuse his discretion in denying a motion to suppress evidence where the military judge found that the official who authorized the search was the acting commander with full authority and control over the remain-behind-element, except for authority to impose nonjudicial punishment and convene courts-martial; the acting commander was competent to issue the search and seizure authorizations because the power to do so devolved upon her

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

1. MRE 315(d) provides that a search authorization under that rule is valid if issued by an impartial commander or other person serving in a position designated by the Secretary concerned as either a position analogous to an officer in charge or a position of command, who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to military law or the law of war
2. a commander’s power to authorize searches can devolve upon subordinates when the commander is absent; just as other duties devolve upon a deputy commander when, for some reason, a commander is unavailable, so, too, the responsibility to act on a request for search should in such a situation be viewed as devolving on the subordinate who exercises command when the commander is absent
3. the power to authorize a search may devolve from a commander upon a subordinate even if a specific regulation does not provide for the devolution; whether a devolution occurs depends on a functional analysis; the question is whether the subordinate is in fact functioning as a commander while the commander is absent from the command; in deciding whether a devolution has occurred, several relevant facts may be considered: (1) the location of the commander; (2) the accessibility of the commander; (3) whether the commander contemplated a devolution of authority; (4) whether the deputy was exercising command functions; and (5) how others within the unit understood the role and authority of the deputy
4. in this case, the squadron commander’s power to authorize searches under MRE 315(d)(1) devolved upon the acting commander at the time and place the search authorizations were requested where (1) the commander was deployed overseas, (2) communication between the commander and acting commander was possible but usually delayed by a day or two, (3) the commander intended that the acting commander would exercise command authority in his absence, (4) the acting in fact exercised command functions, (5) the investigators understood that they should seek search authorizations from the acting commander, whose signature block on the search authorizations bore the title of “Acting Commander” or similar variations
5. a devolution of command is not an all-or-nothing proposition; a complete devolution of command authority is not required
6. Article 1026.1 of U.S. Navy Regulations identifies certain circumstances in which devolution of command automatically occurs; but the regulation does not preclude devolution from occurring in other circumstances
7. a unit cannot have two commanders exercising the same functions simultaneously; but command authority can devolve temporarily upon a subordinate during periods when, and in locations where, the detailed commander is unavailable
8. the mere possibility of communication between the acting commander and commander does not prevent the devolution of power
9. the fact that a commander’s absence is preplanned rather than temporary does not does not prevent the devolution of the commander’s power to a subordinate to authorize searches and seizures
10. in this case, the military judge did not abuse his discretion in denying a motion to suppress evidence where the military judge found that the official who authorized the search was the acting commander with full authority and control over the remain-behind-element, except for authority to impose nonjudicial punishment and convene courts-martial; the acting commander was competent to issue the search and seizure authorizations because the power to do so devolved upon her
11. when commanders know that they will be absent for foreseeable, long-term periods, they can avoid legal controversies regarding authority over military justice matters by taking the formal steps required by service regulations to ensure clarity regarding this authority; they need not rely on the possibility of the implied devolution of their powers upon a subordinate officer

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion