The following article was written by Attorney Andrew Cherkasky. He is the founder of Cherkasky Law, LLC, (www.BestMilitaryDefense.com) a firm dedicated to defending American military personnel.
The rights of military members and civilians on a military installation can vary significantly from your basic Bill of Rights protections. In some respects, the military is legally obligated to provide additional protections to military members suspected of criminal wrongdoing. But in other respects, even basic rights against unreasonable searches and seizures are virtually non-existent. I’ll examine many of the basic rules and rights in a military context.
Anyone (civilian or military) entering a military installation should assume their vehicle and person will be searched. The law permits random inspections of all compartments of a vehicle upon entering a base. Furthermore, unlike in the civilian system where there has to be probable cause to pull you over in the first place, everyone entering an installation will be required to speak with the gate guard. It’s typical that, at this point, the guard identifies their probable cause for additional search of the vehicle or your person (i.e. probable cause for DUI). Keep in mind that military police have a very specific interest in protecting the installation from terrorist and domestic threats. If you’re uncomfortable with a search that’s being performed at the gate or upon a traffic stop, be clear that you are not consenting to a search — but expect that the search will either continue or you’ll be escorted off the installation.
Military members do not have the same rights against police searches of their home without a warrant as civilians. Specifically, military members who are housed in dorms, barracks, or deployed housing are subject to inspection. Commanders have wide latitude to order that barracks/dorm rooms be inspected to ensure unit readiness and good order and discipline. The right to order “inspections” may not be used as subterfuge to search a specific individual’s room that is suspected of criminal conduct. It’s also important to note that a military member inside their barrack/dorm room is not protected from warrantless arrest (called apprehension in the military). Military police, or command representatives may enter a room to execute their duty to apprehend or issue other lawful orders to a military member (i.e. report to the commander’s office).
Military offices, computers and emails are subject to virtually no protections. For instance, a commander is generally fully within their rights to enter your office, search drawers and your computer hard drive without your permission. Keep in mind these searches may take place after hours and without your knowledge. Furthermore, you should assume that even personal computers or devices that are left in your office are subject to be searched without a warrant.
Military members that reside in on-base housing have significantly greater protections from intrusion from the government. Once junior military members are released from their obligation to live in barracks/dorms, they are given an option to rent on-base housing. Command has virtually no ability to order inspections without a warrant being issued in on-base housing. Civilians inside the home cannot be arrested without an arrest warrant or their willing departure from the premises. Military members, however, may be ordered to report to their commander’s office or the military investigator’s office, even without a warrant.
Your on-base home is not entirely free from the risk of unwelcome inspection. Since the government is essentially your landlord, they may have rules and regulations that permit quarterly or yearly inspections to ensure the property is being properly kept. Furthermore, command may have the right to enter the premises to conduct “health and welfare” checks similar to the warrantless searches on the civilian side by agencies such as the Department of Child & Family Services.
Military members that reside off base have the constitutional protections against unreasonable and warrantless searches and seizures as any other civilian. The only real exception being that a military member may still be ordered to report to a commander’s office or law enforcement office without an arrest warrant being issued.
The key with any search on or off a military installation is to be clear that you are not consenting to a search. After making clear that you do not consent, remain silent while they perform their duty. Do not answer questions like, “What are you hiding?”
Counsel & Remain Silent
The military offers significantly greater protections from self-incrimination and the right to counsel than in the civilian system. Article 31 of the UCMJ (Uniform Code of Military Justice), goes significantly beyond the normal Miranda protections. Miranda warnings are only required if a person is in custody by police, but in the military, Article 31 rights must be read at any time. If any military member suspects that another military member may incriminate himself or herself in the course of a conversation, an Article 31 warning is required. Article 31 permits an individual to remain silent. It also permits the right to request legal representation, and informs that such legal representation will be provided for free for any military member that requests it.
It is absolutely critical to assert your rights when you are warned. One of the downsides of your rights being read at the immediate onset of a conversation is that it may seem like it isn’t a very serious issue. There may also be a strong impression that your command expects you to speak and that your silence will be used against you. Most commanders are very sensitive to your constitutional rights and will not use your silence or assertion of right to counsel against you in any way.
Law Enforcement Tricks
Just as civilian law enforcement has many tricks they may use to gather evidence against you, so too do military law enforcement agents. Here are a few of the favorites:
Driving you to the “police” station. Often investigators will have a senior member of the chain of command drive you to your interrogation. This creates the impression that you are not free to leave and that you are being ordered to cooperate. This is a step to assert control.
Small talk. Prior to the interrogation beginning, agents love to small talk, making you think they’re your friends. They can small talk before reading rights since it isn’t about something potentially incriminating. Over the years, I have watched hundreds of interviews, and it never ceases to amaze me how well this technique works. They are not your friends. They are not trying to help you, or get you out of trouble, no matter what they tell you. They have a job to do, and your confession is another notch on their belt.
Appeal to Integrity & Core Values. Once the interrogation really begins, the agents will focus in on your weakness – your strong sense of integrity and values. Military members have the words “integrity”, “honesty”, “core values”, and similar trigger words beat into them from day one at boot camp. These concepts are critical to a strong military force, but in the interrogation room, it is used as a tool to manipulate suspects. “Does is seem like you are using integrity by not telling us what happened?” “Your commander will look at whether you used integrity and honesty when he decides what to do.” These types of questions and comments almost always get the agents the confession they are looking for.
Lies & More Lies. Law enforcement agents are permitted to lie to suspects during interrogations. This trick is permitted equally on the military and civilian side. Be very cautious about believing the elaborate details of the agent’s investigation when they are trying to get your confession. They will tell you your friends have turned you in, and that they’ve collected evidence against you, even though it’s all a lie.
In the end, the best way to avoid the tricks of law enforcement is to FLEX YOUR RIGHTS. In the military this means electing your Article 31 rights. Be clear and unambiguous, “I want a lawyer, I do not want to make a statement, I do not consent to any search.” Do not back down. Do not say ‘maybe’ or ‘I think’. You cannot talk your way out. Get the help of an experienced and respected attorney that has experience in military justice. You have the right to free counsel, and the right to choose any licensed civilian as well.
You may contact Andrew Cherkasky at CherkaskyLaw@gmail.com or 703-314-6475.