the court explained, this "does not require Fifth Amendment warnings." It was
not a statement regarding an offense, and "lacks the qualities of communication
contemplated by Article 31b."
b. In another case, a Navy NIS (Naval Investigative Service) agent
obtained from the suspect "his full identification, name, rank, social security
card number, date and place of birth, and his duty station." Such disclosure
was held to be a "neutral" act, and not a statement regarding any offense.
Thus, it was not within the protective coverage of Article 31.
U.S. v.
Leiffer, 13 MJ 337 (CMA, 1982).
8. Verbal acts.
One who is conducting a lawful search is not required to
advise a suspect of his Article 31 rights.
A search incident to a lawful
apprehension is not a request for a "statement." U.S. v. Culbert, 29 CMR 88
(CMA, 1960). In one case, the accused's superior suspected him of possessing
marijuana. He said to the accused, "I think that you know what I want, give it
to me." The accused then reached into his left pocket and produced a package
of marijuana cigarettes.
The court held that the accused's conduct in
producing the drugs was the equivalent of a "statement" within the meaning of
Article 31. U.S. v. Corson, 39 CMR 34 (CMA, 1968). In other words, an accused
may lawfully be searched as part of a valid apprehension. This, of course, is
called the "search incident to apprehension."
In the Corson case, however,
something more was involved.
The accused was being asked to perform a
discretionary act that is regarded as the equivalent as a statement; i.e., a
"verbal act." U.S. v. Rehm, 42 CMR 161 (CMA, 1970). A good way to think of
this is as follows: Unless the accused is under apprehension and is being
ordered to empty his pockets (as part of a search incident to the
apprehension), asking him to turn over evidence against himself involves a
request for a "verbal act."
By turning over the evidence, the accused is
"admitting" that he does, in fact, have it.
This is why the verbal act is
regarded as the equivalent of a "statement."
Throughout the area of Article 31 warnings, remember that the focus is on
testimonial communication. In one case, the accused was a suspect in a robbery
that involved a fight. When the MP apprehended the suspect, the MP asked him
about some bloodstains on his coat.
The government argued that Article 31
warnings were not necessary, as this was not a request for a "statement." The
court disagreed, and held that article warnings are not needed in the cases
involving such things as requests for handwriting or voice exemplars. Those,
however, are cases "where the content or meaning of the words spoken or written
was irrelevant. Only the physical characteristics of the words -- how they are
said and not what was said -- were material." Asking a suspect about the blood
on his clothes was not considered to be part of the routine booking process.
Under these facts, Article 31 warnings were necessary.
The court explained
that it would have been different if the suspect had been bleeding and if he
had been asked how he got hurt in order for the MP to determine his physical
condition. That, however, is not what happened. U.S. v. Williams, 23 MJ 362
(CMA, 1987).
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