U.S. v. Carter, 35 CMR 467 (CMA, 1965) involved an interesting set of facts. The Third Army
heavyweight boxing champion was PFC Dorsey, known as "The Slammer." Before going to bed one
night, he put 5 in his locker. In the morning, it was missing. PFC Dorsey suspected the accused,
who occupied the next bunk in the barracks. PFC Dorsey searched the accused's person and
threatened to hit him unless the accused removed his shoes. The money was found hidden in one of
his shoes that the accused was wearing. The court held that the Fourth Amendment "has consistently
been applied only to action by...government authority." It does not apply to actions taken by private
persons. Accordingly, "a thief...is not protected by the Fourth Amendment against the owner." In this
case, then, PFC Dorsey was found to have acted "exclusively in his own private interests."
U.S. v. Thrower, 12 MJ 777 (ACMR, 1981), involved a similar situation. The accused shared a
room with SPC McCullough. SPC McCullough knew that his roommate had drugs in the room, and
was afraid that he would be blamed for their presence. He took the drugs out of his roommate's locker
and gave them to the commander. His seizure of the drugs was found to involve "acts in his private
capacity and not as a person acting in a governmental capacity." Remember, "private persons are not
subject to the Fourth Amendment," and evidence seized by them is admissible in court. U.S. v.
Morrison, 12 MJ 222 (CMA, 1982). Cases like these would have a different result, of course, if the
police or commander had directed the roommate to do the search. Were that the case, the roommate
would be acting in a governmental capacity, as a government agent, and it would no longer be a purely
private search. U.S. v. Aponte, 11 MJ 917 (ACMR, 1981).
3. Foreign Searches. When we speak of "governmental action" we mean action by officials of the
United States. This includes, of course, the U.S. Army, the federal government, and also a state or any
political subdivision of a state (city, county, etc.). In other words, the Fourth Amendment applies to
officials of the United States (MRE 311(c) 2). To be challenged as unlawful under the Fourth
Amendment, a search must have been "conducted, instigated, or participated in by agents of the U.S.
government. Officials of a foreign government are not bound by the Military Rules of Evidence, or by
the U.S. government. As a result, evidence seized by officials of a foreign government will be
admissible in our courts, unless it was obtained as a result of subjecting the accused to "gross and
brutal maltreatment." (MRE 311(c) 3.)
The problem frequently arises overseas, when the search is performed by officials of the foreign
government (Germany, Korea, Japan, etc.), and they then give the evidence to the U.S. authorities.
The mere presence of U.S. officials at the scene of a foreign search does not convert it into a search by
the United States. Consequently, it does not have to meet our constitutional standards, and the
evidence is admissible in our courts. U.S. v. Morrison, 12 MJ 27Z (CMA, 1982). The issue will be
whether or not the U.S. officials instigated the search, conducted it, or participated in it. U.S. v.
Coleman, 25 MJ 679 (ACMR 1987).
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