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Thelawman2, Lawyer
Category: Military Law
Satisfied Customers: 1612
Experience:  Attorney at Law
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How come military law enforcement do not have to provide a

Customer Question

How come military law enforcement do not have to provide a copy of a search warrant to the subject until after an investigation is complete?
JA: Are you overseas or stateside?
Customer: overseas
JA: Have you talked to anyone in the chain of command about this?
Customer: No
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 2 months ago.
Category: Military Law
Expert:  Thelawman2 replied 2 months ago.

Hello, my name is ***** ***** I will be helping you today.

This is a unique application of military law. In particular, the US Court of Military Appeals, the highest court created by the Uniform Code of Military Justice, has held that so long long as the commanding officer fairly determines that probable cause to conduct a search exists and specified the premises to be searched and the items to be seized, his authorization to conduct the search is lawful and does not violate the 4th amendment even though a search warrant has not been issued. This is why the search warrant does not need to be provided when the search is done.

Customer: replied 2 months ago.
Interesting. That seems somewhat unreasonable considering when law enforcement extract data from a phone, they extract all the data, which provides access to information and content outside the scope of warrant. What I'm trying to figure out is this...a person was advised of their rights for unprofessional relationship and adultery with one particular person. This person had their phone seized via a search authorization and that authorization was not provided to the member. Subsequently, the phone had all information extracted and now this person is being looked at for additional adultery violations and violations outside the scope of adultery, mainly centered around bribery and graft with a business outside the military. It's very confusing and complicated. Additionally, a second warrant was issued for this person's phone...the same phone law enforcement already had and extracted all the data from, in addition to information searching for items pertaining to bribery and graft with a business outside of the military.
Expert:  Thelawman2 replied 2 months ago.

What might be going on then is that a separate federal/state government body (FBI or state police) may now be investigating that matter and therefore requesting a search warrant for the phone so that they could use the evidence obtained.

Additionally, if the phone was legally obtained and during the search of the phone there were other crimes discovered, the police are permitted to use that additional evidence to investigate the other crime even though the evidence was originally being sought by the original search warrant.

Expert:  P. Simmons replied 2 months ago.

Different expert here...I see your request for a phone call from yesterday...are you still interested in a phone call?

Customer: replied 2 months ago.
The law enforcement agency that conducted the original search with a search authorization (their words) is the same organization that requested another search authorization for the same phone they already and ripped. Is that appropriate?
Expert:  Thelawman2 replied 2 months ago.

And this is the military police?

Expert:  Thelawman2 replied 2 months ago.

What may be happening is that the search authorization was limited in scope, and once certain information was found, they requested a second authorization to expand the scope and collect additional information.

For example, the first search authorization might have been to look for evidence of adultery, but that would have permitted only a limited scope of the search, such as looking through phone or text messages. If they are looking for bribery evidence, the search authorization might be broadened to pull all emails and documents from the phone.

Customer: replied 2 months ago.
OSI...not military police...
I'm asking the question because other independent attorney's feel very strongly that the first search was far too broad and should not have encompassed anything other than the search of the phone related to accuser (which they know by name and phone number). They are having a difficult time seeing any other reason to look the phone for any other information not pertaining to the rights advisement. Consequently, OSI stated the initial search and investigation was not an OSI investigation and they were only assisting the appointed command directed investigator (the person who was looking into the adultery/unprofessional relationship accusation). Which has caused other attorney's concern since data was ripped from a phone that was not part of OSI or Military Law Enforcement investigation and generally adultery charges do not constitute a rip of a persons phone. These attorney's believe either the initial search had a magistrate who is in the subjects direct chain of fact its the subjects direct supervisor, sign the initial search authorization, which is illegal and that led OSI to obtain a second warrant for the same phone they already had and already ripped 2 months later.
Does this make sense?
Expert:  Thelawman2 replied 2 months ago.

You are right that the search of the phone should just be looking for information related to the accuser; however, it is possible that there would be evidence discovered incidental to that original authorization.

But you are correct, courts have begun to hold that cell phone searches can be determined to be too broad by looking on the cell phone at certain data that would clearly not be related to the incident that is being reported. So what might be occurring is that the second search authorization is being used in an attempt to try to get a legal right to use the other information that might have been obtained during the first search but which was too broad in scope to be permissible.

If the subject can show that the first search was too broad and led to the second search authorization, then it is possible that evidence of obtained during both searches could be thrown out in any proceeding.

Customer: replied 2 months ago.
Interesting. It's also worth nothing that OSI will not/has not provided a copy of the first warrant to the subject to the subjects legal team; however, they did provide the second search authorization to the subject (it was during a raid of the subject's home when the subject was not home), the purpose of the raid was to get numerous documents and computers (apple/mac computers specifically) in conjunction with suspected bribery and graft. however during the raid they only thing seized was one mac laptop and charger...nothing else...even tho the search authorization was broad and there were multiple mac type computers in the house and visible to agents.
Other attorneys noted that was a good thing because they feel if OSI really had something they would have take every device related to apple to include loose papers and manuals...but they didn't.
Lastly OSI requested an interview with the subject, knowing the subject is represented by counsel and asked the subject if the subject wanted to answer questions and to let the subject know they are looking to subpoena the subjects bank records in a very broad capacity. Shouldn't the scope of bank records check be related to what they are actually looking into, being what the subject was advised of? My take would be to release the documents to OSI, however, only with information directly dealing with the alleged company and offenses related to bribery and graft. What are your thoughts? This seems way more complicated and confusing than it should you get that feeling as well...or is this pretty typical in your line of work?
Expert:  Thelawman2 replied 2 months ago.

The subject should be obtaining counsel if possible because whether or not he should cooperate is a complicated judgment that will depend on complex facts and circumstances of his case.