Suppose that following a divorce, the accused's ex-wife wrongfully enters his home, and takes his
private papers. She then takes them to his commander in order to show that he obtained his
commission by fraud; i.e., he never graduated high school. Under such facts, the wife is not acting as a
governmental official or as an agent of the government. The rule is that "evidence taken by wrongful
act of a private person, without participation by the government, will not be barred from evidence." In
such cases, there is no misconduct by any government officials. Under these facts, "the government is
guilty of no impropriety and there is no wrongful activity on its part to deter." U.S. v. Seiber, 31 CMR
106 (CMA, 1961).
The fact that the ex-wife may have committed a crime herself (trespass, larceny, etc.) does not
affect the outcome. The Fourth Amendment only applies where governmental activity is involved. It
does not protect a husband from the wrongful acts of his wife. It would, of course, be different if the
government officials (commander, CID, etc.) told the wife to do what she did. Under such facts, the
wife would then be acting as an agent of the government (on its behalf). She would not, therefore, be
acting in a purely private capacity. If that were the case, the presence of governmental action would
trigger the Fourth Amendment.
This issue frequently arises when the search is done by someone in the military, but not by MPI,
CID, etc. Actions by military law enforcement agencies, or by the chain of command, would involve
governmental action. Suppose, however, that the search is done by the accused's roommate. The rule
is that "not every search made by persons in the military service is under the authority of the United
States. At the same time, however, it is clear that "a search by a person duly assigned to law
enforcement duty, and made for the sole purpose of enforcing military law, is conducted by a person
acting under the authority of the United States." Also, "a search by one having direct disciplinary power
over the accused" is considered to have been done under the authority of the United States, thereby
involving governmental action. U.S. v. Volante, 16 CMR 263 (CMA, 1954).
In U.S. v. Thomas, 36 CMR 462 (CMA, 1966), the accused was assigned as a runner for the
Charge of Quarters (CQ). A search done by the CQ was found to involve governmental action. He
was described as "a noncommissioned officer detailed by the company commander for a 24-hour tour
of duty, to observe violations of rules and regulations by the personnel of the company" and as "a
noncommissioned officer, clothed with the power to supervise the discipline of the command." The CQ,
a sergeant, was also the accused's "direct military superior," and "a more precise definition of police
activity would be hard to find." The search, then, involved governmental action, so the Fourth
Amendment was applicable. It was not a purely private search.
"Searches by persons having direct disciplinary authority over the person searched are equated to
those conducted by law enforcement agents, for law enforcement is frequently an integral part of the
broader problem of military command." U.S. v. Fleener, 43 CMR 974 (AFCMR, 1971). This is the
general rule, although each case must be decided on its own facts. It is still possible to find a private
search where one is acting in a purely private capacity "notwithstanding that they possess the authority
of a particular military rank or grade" U.S. v. Rogan, 25 CMR 23 (CMA, 1958). The Fourth
Amendment, for example, does not generally protect the thief from a recovery of the stolen property by
his victim.
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