himself as to the content of the conversation. Thus, the defendant knew full well that his accomplice
could turn and testify against him. Again, there was no Fourth Amendment violation. A criminal "must
realize and risk that his companions may be reporting to the police." U.S. v. White, 28 L. Ed.2d 453
(1971). The Fourth Amendment does not protect a criminal's "misplaced belief that a person to whom
he voluntarily confides his wrongdoing will not reveal it...The risk of being overheard by an
eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is
probably inherent in the conditions of human society. It is the kind of risk we necessarily assume
whenever we speak." Hoffa v. U.S., 19 L. Ed.2d 374 (1966).
The recording of conversations must comply with applicable Army regulations. Consult with JAG,
and be aware of restrictions found in AR 190-53. Also, if an accused has had charges preferred
against him, or if he is under pretrial restraint, the use of undercover informants to elicit incriminating
statements may be found to have violated the 6th Amendment right to counsel. U.S. v. Henry, 65 L.
Ed.2d 115 (1980). The informant may, however, simply listen to the accused, so long as he does not
engage him in any conversation. Kuhlmann v. Wilson, 91 L. Ed.2d 364 (1986). Remember, before
using any such procedures, consult with JAG.
f. Government Property. MRE 314(d) states that government property may be searched without a
warrant/authorization or probable cause "unless the person to whom the property is issued or assigned
has a reasonable expectation of privacy therein." The question is whether or not the property has been
issued for personal use. "Wall or floor lockers in living quarters issued for the purpose of storing
personal possessions normally are issued for personal use; but the determination as to whether a
person has a reasonable expectation of privacy in government property issued for personal use
depends on the facts and circumstances at the time of the search." The question is whether or not the
government office/property is such that there is a reasonable expectation of freedom from
governmental intrusion. This is an issue that "must be addressed on a case-by-case basis." What is
clear, then, is that one certainly MAY have a reasonable expectation of privacy in a personal office or
desk, even if it is technically the government's property. This was recognized by the U.S. Supreme
Court in Mancusi v. DeForte, 20 L.Ed.2d 1154 (1968), and again in O'Conner v. Ortega, 41 Cr. L. 3001
(1987).
In the O'Conner case, the Court held that a supervisor may search the employee's desk, if such is
reasonable and in relation to work-related misconduct, but not if in connection with a criminal
investigation. Based on this case, then, one should get a search authorization before searching a
private desk/office, when this is done in connection with a criminal investigation. Before proceeding in
this area, consult with JAG. The fact that the property is owned by the government "does not
automatically exclude the possibility that the appellant may have acquired a legitimate expectation of
privacy in its contents." U.S. v. Muniz, 23 MJ 201 (CMA, 1987).
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