4. Pretrial prisoners who are in a detained status are not treated the same as post trial prisoners
whose status is adjudged or sentenced. Detained prisoners have not been proven guilty of any
offense. Their confinement is not a punishment; it is only a means of ensuring their presence for
trial or of preventing further serious misconduct. Detained prisoners are segregated as much as
possible from all other prisoners, both in their working and in their living arrangements. Detained
prisoners will be segregated from all post trial prisoners in billets to the maximum extent
practicable. A detained prisoner will, however, be segregated from all post trial prisoners in
employment and this segregation may not be waived.
PART C - Prisoner Rights.
1. Searches. A search is looking for evidence of some crime, with prosecution ultimately in
mind, as opposed to just looking. In general, there is a limitation on searching someone in the
military. The Fourth Amendment of the US Constitution limits the power of the government and
government officials to search persons and property.
2. Authority of the commanding officer is normally necessary in order to conduct a lawful
search. However, for persons not in confinement, this search may not be made unless probable
cause exists. This means there must be both:
a. A fact showing an offense probably has been committed.
b. Facts showing that particular evidence of that offense will probably be found in a
particular place. If no probable cause exists, the search is illegal and any evidence obtained as a
result of it is inadmissible as evidence in court.
3. That rule applies to all persons in the military not in confinement. However, once a person
has been apprehended and placed in a confinement facility, some of his Fourth Amendment rights
are modified. Lawful incarceration brings about the necessary withdrawal of limitation of any
privileges and rights, a retraction justified and made necessary by the considerations underlying our
penal system. Searches of prisoners may be made upon mere suspicion, no probable cause is
necessary. Searches are limited only in number and in manner of conduct. Of course, the search is
exercised in the conduct of searches to prevent undue disturbance of the prisoner's quarters or
damage to his personal effects.
4. Self-incrimination. The protection against compulsory self-incrimination is another right
derived from the Constitution. No person may be compelled to incriminate himself. Persons in
confinement fully retain this protection just as persons not in confinement.
5. The basic starting point in the area of self-incrimination is the Fifth Amendment to the US
Constitution. This protection applies to all US citizens. We cannot compel any person to testify
against himself. This right is never modified.
6. All of these rights have been incorporated into Article 31 of the UCMJ. Thus, military
personnel are protected by both the Fifth Amendment and Article 31.
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