A military commander is "capable of neutrality when he is not actively involved in the investigative
or prosecutorial functions...where the military commander becomes personally involved as an active
participant in the gathering of evidence or otherwise demonstrates personal bias or involvement in the
investigative or prosecutorial process against the accused, that commander is devoid of
neutrality...obtaining information to be used as the basis for requesting authorization to search in a law
enforcement function and involvement in that information-gathering process would disqualify the
commander from authorizing the search." U.S. v. Exell, 6 MJ 307 (CMA, 1979).
The fact that the commander is aware that the suspect has been involved in prior misconduct does
not disqualify him. The commander may not, however, authorize a search and then conduct it. Such
involvement in the "enterprise of ferreting out crime" is a law enforcement activity. Stated another way,
one may not authorize a search "while at the same time performing investigative functions." U.S. v.
Forbes, 7 MJ 969 (ACMR, 1979). In one case, the CID called the commander and asked him to come
to the accused's room. He did so, and authorized a search of the room. Here, the commander "merely
made himself available to the police agents. His accession to the request for his presence simply
expedited the application process" and was NOT the same as "participation in the mechanics of the
search." U.S. v. Powell, 8 MJ 260 (CMA, 1980).
In another case, the commander knew of a suspect's prior record of misconduct. He also knew the
informant, who now told the commander that the suspect was in possession of some drugs. The
commander considered the informant to be reliable, based on past experiences wherein the informant
had provided him with accurate information. The court held that a commander's possession of prior
knowledge about the accused doesn't disqualify him from authorizing a search. Similarly, his
possession of prior knowledge about the informant is also permissible. This knowledge, of course, may
be used to determine the reliability of the informant. U.S. v. Rushing, 11 MJ 95 (CMA, 1981).
The commander may not, on the other hand, personally direct the investigation and then authorize
the search. Engaging in such police activity deprives him of his neutrality. U.S. v. Cordero, 11 MJ 210
(CMA, 1981). A commander cannot be "personally and deeply involved" in the investigative process
and also authorize a search. U.S. v. Wallace, 11 MJ 445 (CMA, 1981). In one case, an informant told
the commander that some troops had drugs in their room. The commander, having earlier recruited the
informant, listened to his story and then had the informant repeat it in the presence of CID agents. The
commander then decided to set up a controlled buy. After an undercover purchase by CID was made
(using the informant), the commander then went with the agents to the suspect's room, where he
authorized a search. Having assisted in conducting the search, the commander discovered drugs
which he kept in his possession until arriving at the MP station. Faced with these facts, the court
concluded that the commander "was the policeman in charge of the operation." He had recruited the
informant, made the decision to proceed with a controlled purchase, assisted in the search, and
retained custody of the drugs. The commander, as a result, had disqualified himself from weighing the
evidence that he himself had helped to develop. U.S. v. Murray, 12 MJ 139 (CMA, 1981). The
commander, then, should avoid getting involved in the "information-gathering process." This includes
such things as directing the use of informants, controlled buys, surveillance operations, etc. U.S. v.
Ezell, 6 MJ 307 (CMA, 1979).
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