Chapter III · Initiation of Charges; Apprehension; Pretrial Restraint; Related Matters
R.C.M. 302. Apprehension
2024 Manual for Courts-Martial, United States
See all changes(a) Definition and scope.
(1) Definition. Apprehension is the taking of a person into custody.
Discussion
Apprehension is the equivalent of “arrest” in civilian terminology.
Discussion
(In military terminology, “arrest” is a form of restraint. See Article 9; R.C.M. 304.) See subsection (c) of this rule concerning the bases for apprehension. An apprehension is not required in every case; the fact that an accused was never apprehended does not affect the jurisdiction of a court-martial to try the accused. However, see R.C.M. 202(c) concerning attachment of jurisdiction. An apprehension is different from detention of a person for investigative purposes, although each involves the exercise of government control over the freedom of movement of a person. An apprehension must be based on probable cause, and the custody initiated in an apprehension may continue until proper authority is notified and acts under R.C.M. 304 or 305. An investigative detention may be made on less than probable cause (see Mil. R. Evid. 314(f)), and normally involves a relatively short period of custody. Furthermore, an extensive search of the person is not authorized incident to an investigative detention, as it is with an apprehension. See Mil. R. Evid. 314(f) and (g). This rule does not affect any seizure of the person less severe than apprehension. Evidence obtained as the result of an apprehension which is in violation of this rule may be challenged under Mil. R. Evid. 311(d). Evidence obtained as the result of an unlawful civilian arrest may be challenged under Mil. R. Evid. 311(d).
(2) Scope. This rule applies only to apprehensions made by persons authorized to do so under subsection (b) of this rule with respect to offenses subject to trial by court-martial. Nothing in this rule limits the authority of federal law enforcement officials to apprehend persons, whether or not subject to trial by court-martial, to the extent permitted by applicable enabling statutes and other law.
(b) Who may apprehend. The following officials may apprehend any person subject to trial by court-martial:
(1) Military law enforcement officials. Persons designated by proper authorities to perform military criminal investigative, guard, or police duties, whether subject to the UCMJ or not, when in each of the foregoing instances, the official making the apprehension is in the execution of law enforcement duties;
Discussion
Whenever enlisted persons, including police and guards, and civilian police and guards apprehend any commissioned or warrant officer, such persons should make an immediate report to the commissioned officer to whom the apprehending person is responsible.
The phrase “persons designated by proper authority to perform military criminal investigative, guard or police duties” includes special agents of the Defense Criminal Investigative Service, security forces, military police, master at arms personnel, and members of the shore patrol.
The phrase “persons designated by proper authority to perform military criminal investigative, guard or police duties” includes special agents of the Defense Criminal Investigative Service, security forces, military police, master at arms personnel, and members of the shore patrol.
(2) Commissioned, warrant, petty, and noncommissioned officers. All commissioned, warrant, petty, and noncommissioned officers on active duty or inactive duty training;
Discussion
Noncommissioned and petty officers not otherwise performing law enforcement duties should not apprehend a commissioned officer unless directed to do so by a commissioned officer or in order to prevent disgrace to the Service or the escape of one who has committed a serious offense.
(3) Civilians authorized to apprehend deserters. Under Article 8, any civilian officer having authority to apprehend offenders under laws of the United States or of a State, Territory, Commonwealth, or possession, or the District of Columbia, when the apprehension is of a deserter from the armed forces.
Discussion
The UCMJ specifically provides that any civil officer with the authority to apprehend offenders under the laws of the United States or of a State, Commonwealth, possession, or the District of Columbia may summarily apprehend a deserter. See Article 8. However, this authority does not permit state and local law enforcement officers to apprehend persons for other violations of the UCMJ.
(c) Grounds for apprehension. A person subject to the UCMJ or trial thereunder may be apprehended for an offense triable by court-martial upon probable cause to apprehend. Probable cause to apprehend exists when there is a reasonable belief that an offense has been or is being committed and the person to be apprehended committed or is committing it. Persons authorized to apprehend under R.C.M. 302(b)(2) may also apprehend persons subject to the UCMJ who take part in quarrels, frays, or disorders, wherever they occur.
Discussion
A mere suspicion is not enough but proof which would support a conviction is not necessary. A person who determines probable cause may rely on the reports of others.
(d) How an apprehension may be made.
(1) In general. An apprehension is made by clearly notifying the person to be apprehended that person is in custody. This notice should be given orally or in writing, but it may be implied by the circumstances.
(2) Warrants. Neither warrants nor any other authorizations shall be required for an apprehension under these rules except as required in paragraph (e)(2) of this rule.
(3) Use of force. Any person authorized under these rules to make an apprehension may use such force and means as reasonably necessary under the circumstances to effect the apprehension.
Discussion
In addition to any other action required by law or regulation or proper military officials, any person making an apprehension under these rules should maintain custody of the person apprehended and inform as promptly as possible the immediate commander of the person apprehended, or any official higher in the chain of command of the person apprehended if it is impracticable to inform the immediate commander.
(e) Where an apprehension may be made.
(1) In general. An apprehension may be made at any place, except as provided in paragraph (e)(2) of this rule.
(2) Private dwellings. A private dwelling includes dwellings, on or off a military installation, such as single family houses, duplexes, and apartments. The quarters may be owned, leased, or rented by the residents, or assigned, and may be occupied on a temporary or permanent basis. “Private dwelling” does not include the following, whether or not subdivided into individual units: living areas in military barracks, vessels, aircraft, vehicles, tents, bunkers, field encampments, and similar places. No person may enter a private dwelling for the purpose of making an apprehension under these rules unless:
(A) Pursuant to consent under Mil. R. Evid. 314(e) or 316(c)(3);
(B) There is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the person sought to be taken into custody evading apprehension;
(C) In the case of a private dwelling which is military property or under military control, or nonmilitary property in a foreign country
(i) if the person to be apprehended is a resident of the private dwelling, there exists, at the time of the entry, reason to believe that the person to be apprehended is present in the dwelling, and the apprehension has been authorized by an official listed in Mil. R. Evid. 315(d) upon a determination that probable cause to apprehend the person exists; or
(ii) if the person to be apprehended is not a resident of the private dwelling, the entry has been authorized by an official listed in Mil. R. Evid. 315(d) upon a determination that probable cause exists to apprehend the person and to believe that the person to be apprehended is or will be present at the time of the entry.
(D) In the case of a private dwelling not included in subparagraph (e)(2)(C) of this rule,
(i) if the person to be apprehended is a resident of the private dwelling, there exists at the time of the entry, reason to believe that the person to be apprehended is present and the apprehension is authorized by an arrest warrant issued by competent civilian authority; or
(ii) if the person to be apprehended is not a resident of the private dwelling, the apprehension is authorized by an arrest warrant and the entry is authorized by a search warrant, each issued by competent civilian authority. A person who is not a resident of the private dwelling entered may not challenge the legality of an apprehension of that person on the basis of failure to secure a warrant or authorization to enter that dwelling, or on the basis of the sufficiency of such a warrant or authorization. Nothing in paragraph (e)(2)) affects the legality of an apprehension which is incident to otherwise lawful presence in a private dwelling.
Discussion
For example, if law enforcement officials enter a private dwelling pursuant to a valid search warrant or search authorization, they may apprehend persons therein if grounds for an apprehension exist. This subsection is not intended to be an independent grant of authority to execute civilian arrest or search warrants. The authority must derive from an appropriate federal or state procedure. See, e . g ., Fed. R. Crim. P. 41 and 28 C.F.R. 60.1.