Admissibility of Foreign Search and Seizure

When personnel from the U.S. military is in a foreign country on assignment, they are subject to the Uniform Code of Military Justice (UCMJ), not to mention, the laws of the country they are on assignment in. In the event that they are ever put under arrest, they must comply with the country’s laws. Being ignorant of a foreign country’s laws in on excuse, the same as if a foreigner was in the United States. When foreign police conduct investigations of a U.S. military personnel, they usually comply with U.S. military law enforcement authorities, however, they may happen to also conduct investigations which can be separate from U.S. law enforcement authorities. Gathering evidence is somewhat similar to the U.S., in that they obtain evidence from suspects and witnesses and perform search and seizures from the suspected physical suspect and forensic evidence. After the foreign police have acquired the evidence, it is admitted to a military court martial or some other military justice proceeding, however it may have different rules which can be different from a U.S. military or civilian justice. U.S. personnel conducting along with foreign investigators determines the admissibility upon which the U.S. plays a role in the evidence found. If U.S. personnel is actively involved, they must be advised of their rights according to Article 31, UCMJ, for suspects who are accused of a criminal offense based on probable cause. All searches must comply with the laws in UCMJ and U.S. Constitutional law that interprets the 4th Amendment. However, if there is no involvement of U.S. personnel, then no rights have to be advised on the suspect. The participation has to be triggered by Article 31 requirements and the 1980 amendment of MRE 305(h)(2). The three examples of participation does not have to include: the mere presence of American authorities, interpretation by American authorities, and any attempts to mitigate damage to property or person. When defining participation, it should include: the escorting of foreign police on U.S. military bases with the presence of U.S. personnel and the accused suspect during any questioning, facilitating any communication with foreign law personnel, having provided a room for foreign law personnel, the involvement of U.S. that triggers an examination, (any knowledge by U.S. personnel that the suspect invoked his rights under foreign law don’t include participation), and if the suspect remains silent and requests an attorney, it may stop foreign law enforcement from interrogating a suspect, but they may attempt to question the suspect later. Any search or seizure performed by military personnel, whether it is led by foreign law enforcement, should still follow the rules according to MRE 311 (c) and the U.S. constitutional law, federal law, the UCMJ, and MRE, in order for any evidence to be admissible at a court martial. MRE 311 (c) may be similar to MRE 305 (h)(2)’s non-participation of presence, interpretation, and mitigating damage of person or property, the participation of American authorities without foreign investigations is usually exempt from U.S. constitutional or statutory laws, but may not always be the case. Such military decisions have been varied from such presence of U.S. authorities when searches and seizures being led by foreign law enforcement have triggered constitutional protection. A Court of Military Appeals did hold that the mere presence of U.S. authority during a foreign search was not enough to invoke constitutional safeguards. However, in 1976, the court reversed the decision by saying that if American personnel were present during a foreign search, it must still satisfy the 4th Amendment. The court revisited the law three years later and reversed the decision back to mere presence before any constitutional protections could be attached to foreign searches. As of now, the law still stands. When foreign law enforcement obtains statements, Article 31 of UCMJ provides more rights than Miranda does to accused service members. A rights advisement of accused military personnel is required at the moment of apprehension that is based on probable cause and cannot be prior to interrogation. Anyone subject to UCMJ cannot be asked to incriminate themselves, and accused suspects do have a right to remain silent, but such statements can be used against them. Any non-compliance with Article 31 of UCMJ is the same as Miranda, but foreign law enforcement may still not be bound by the same rigid constraints as Article 31 or Miranda. Not only do U.S. military personnel have to obey U.S. laws when outside the U.S., in the U.S., foreign laws do also apply and can be enforced by the host country. Military service members who expect Miranda warnings when apprehended by a civilian, city, county, or state police officers, foreign laws about the interrogation of suspects can vary with each country. In Japan, a suspect’s rights to remain silent does apply to preceding questions, but the Japanese National Police may still question a suspect. The tactics used by foreign law interrogations can also vary in other countries as well. In Japan again, they may question a suspect several times over a period of several days, weeks, or even months. During foreign interrogations and the advisement of rights, foreign law enforcement is not required to advise suspects when they are acting alone gathering evidence, according to Article 31 of UCMJ. Also an accused cannot suppress any statements that are based on a lack of advisement of rights. This can be referred to the U.S. federal law jurisprudence when referring to the admissibility of statements by U.S. interrogations of foreign police. A suspect’s statement must be voluntary in order for any evidence to be admissible at a court martial. The court may analyze any statement made in order to see if such statements are in violation of the due process clause of the 5th Amendment of the U.S. Constitution, Article 31 that May be in use of coercion, unlawful influence, or unlawful inducement. A voluntary confession should be free from any constraints of the suspect making it. There are four categories when it comes to re-assessing foreign law when foreign law enforcement obtains evidence. The first is involuntary statements that are made after the advisement of rights. The second is the involuntary statements which are made after an advisement of rights which does not comply with foreign law requirements. The third are the voluntary statements which are made after the advisement of rights that complies with foreign law. And the fourth are the voluntary statements which are made after advisement of rights that do not comply with foreign law. U.S. military personnel who are serving in foreign countries must comply with the laws of the country to which they are serving. They must also follow U.S. federal law, the U.S. Constitution, and Article 31 of the UCMJ when it comes to gathering evidence of any accused service member. All evidence that is submitted to the court for admissibility, should be closely examined. As long as the suspect has not been subjected to any brutal maltreatment, current law allows for the admissibility of evidence in a foreign search and seizure. Source Ramer, Jacob A. "Evidence obtained by foreign police: admissibility and the role of foreign law." Air Force Law Review Winter 2012: 207+. Academic OneFile. Web. 27 Sep. 2012.