Part C - The Authority to Apprehend

PART C - THE AUTHORITY TO APPREHEND

1.

Apprehending persons subject to the UCMJ.

a. General.

An apprehension is the taking of a person into custody. 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."

(RCM 302(d)(1).)

It "involves substance rather than form.

No

specific words or any words at all need be used." U.S. v. Repp, 23 MJ 589 (AFCMR

1986).

Telling a suspect to freeze and get up against a wall was held to be

sufficient in U.S. v. Walker, 13 MJ 982 (ACMR 1982).

b. UCMJ/MCM provisions.

Article 7, UCMJ, states: "Commissioned officers,

warrant officers, petty officers, and noncommissioned officers have authority to

quell quarrels, frays, and disorders among persons subject to this chapter and to

apprehend persons subject to this chapter who take part therein."

RCM 302(b)

states that "the following officials may apprehend any person subject to trial by

court-martial...all commissioned, warrant, petty, and noncommissioned officers."

Article 7, UCMJ, also provides that "any person authorized under regulations

governing the armed forces to apprehend persons subject to this chapter or to trial

thereunder may do so upon reasonable belief that an offense has been committed and

that the person apprehended committed it."

Also, RCM 302(b)(1) states that "the

following officials may apprehend any person subject to trial by court-

martial...military law enforcement officials.

Security police, military police,

master-at-arms personnel, members of the shore patrol, and persons designated by

proper authorities to perform military criminal investigative, guard, or police

duties, whether subject to the Code or not, when, in each of the forgoing

instances, the official making the apprehension is in the execution of law

enforcement duties." The authority under Article 7 and RCM 302 is not limited to

on-post apprehensions.

"An Army MP may, of course apprehend a sailor or an airman. Article 7, UCMJ,

and RCM 302 apply to the apprehension of "any person subject to trial by court-

martial."

One may lawfully apprehend a superior, but there are a couple of

cautionary notes to be made here. First, RCM 302(b)(2) adds that "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."

Also, RCM 302(b)(1) points out: "whenever enlisted

persons, including 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."

c. Regulations.

There are various regulations that deal with the power to

apprehend. As was explained, these constitute sources of authority.

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