Military Magistrate Briefing
(As of April 2012)
Purpose: The Military Magistrate Program is an Army-wide program responsible for the review of continued pretrial confinement and the issuance of search, seizure and apprehension authorizations.
1. Trial judges assigned to the US Army Trial Judiciary. Also, active duty or USAR JAs nominated by a SJA and appointed by the TJAG/designee.
2. Nominees cannot be involved in criminal investigations or the prosecuting function. Judge advocates who perform duties as legal advisors to Article 32 investigating officers or on-call duty officers are not disqualified from appointment as a military magistrate but providing substantive advice to command or law enforcement personnel in criminal matters as a part of such duty will ordinarily disqualify them from acting as a military magistrate on that case.
3. Military magistrates perform magisterial functions under a supervising military judge assigned to the US Army Trial Judiciary, and should have prior trial or defense counsel experience.
1. Impartiality: Military magistrates perform a quasi-judicial function and must remain impartial. They are not advisors to the SJA office or CID/MPI. Nor are they an investigator or advocate for either side. Military magistrates may consult only with the supervising military judge or another judge or military magistrate. Advice will not be sought outside of trial judiciary channels.
a. Military magistrates must provide timely notice to the supervising military judge of any leave, pass, TDY, deployment, PCS, or other absence from their post. Deployment or redeployment between judiciary circuits does not terminate magistrate authority absent one of the conditions below; however, a limitation on duties may be placed upon deployed magistrates as illustrated in Magistrate SOP Enclosure 14.
b. Military magistrates also must provide notice to the supervising military judge when assigned to or performing duties in law enforcement, defense or prosecution functions (such as trial counsel or SAUSA) or when performing other duties inconsistent with his or her magistrate position. ***Assignment to or performing such duties automatically terminate a magistrate’s authority.*** After performing such duty magistrate must re-nominated cannot merely resume the position.
3. Reports: Military magistrates must file an individual quarterly report with their Chief Circuit Judge, NLT 15 April, 15 July, 15 October and 15 January using the format provided in the Magistrate SOP Enclosure 6.
4. Resource Binder: Each magistrate should prepare a “resource” binder with the following items: (1) Appointment Memorandum; (2) Military Magistrate SOP; (3) Code of Judicial Conduct for Army Trial and Appellate Judges; (4) Manual for Courts-Martial (the most current edition); (5) AR 27-10 (most current version); and (6) Blank forms to include: DA Form 3881 (Rights Warning Procedure/ Waiver Certificate); DA Form 3744 (Affidavit Supporting Request for Authorization to Search and Seize or Apprehend); DA Form 3745 (Search and Seizure Authorization); DA Form 3745-1 (Apprehension Authorization). The resource binder also should include a call roster or phone numbers of the supervising judge, other local military trial judges, and other local military magistrates. *** Should produce a duplicate binder for home use.***
Search, Seizure, and Apprehension Authorization Procedures:
1. Authority: All military magistrates are authorized to issue search and seizure or apprehension authorizations upon a showing of probable cause. Searches, seizures and apprehensions will be authorized by military magistrates and executed in accordance with RCM 302, MRE 315 and 316, applicable case law, and AR 27-10.
a. There is no geographical limitation on a military magistrate’s authority and a magistrate may issue authorizations, upon request (from who???) for another military installation. Magistrates should be cautious however to avoid facilitating “forum shopping.”
b. Upon application and determination of probable cause, a military magistrate may issue search and seizure authorizations (1) for any location or item upon a military installation; (2) to search or seize any military aircraft, vehicle, vessel or property of the US Military wherever it is located; and (3) to search any member of the armed forces wherever that member is located.
c. Upon application and determination of probable cause, a military magistrate also may issue apprehension authorizations (1) for any member of the armed forces wherever that member is located and (2) for any military resident or military overnight guest in private dwellings located on military property or under military control. Magistrates also may issue arrest warrants for any person upon a military installation (but see Magistrate SOP provisions 5d, 5e and 6b).
d. Magistrates have no authority to approve requests for: (1) Interception of Wire, Electronic and Oral Communications for Law Enforcement Purposes; (2) Counterintelligence Search Authorization; (3) nonconsensual search of CONUS off-posts private property occupied by a military service member (excluding privatized and RCI housing located on an army installation); (4) Information from financial institutions in any State or territory of the United States.
e. Magistrates also may not authorize apprehension for civilians (on or off post) or military members in off post dwellings. Instead refer to civilian magistrate or US Magistrate Judge.
f. Search or Seizure authorizations must be executed within 10 days after issues. But see, Magistrate SOP Section II for execution of authorizations for electronic evidence.
a. Under military law, taking a person into custody is an apprehension and equivalent of a civilian arrest. Also an arrest is a form of restraint under military law.
b. Probable Cause – Military magistrate may issue apprehension authorizations for persons subject to the UCMJ and based upon probable cause IAW RCM 302(c) – “reasonable grounds to believe that the subject of the authorization has committed or is committing an offense triable by courts-martial.”
c. No warrant or authorization is needed to effect an apprehension occurring in a public place. However, authorization is required to apprehend military members in off-post dwellings.
Search and Seizure:
a. 4th Amendment Probable Cause Standard – Probable cause exists when there is a reasonable belief that the person, property or evidence sought is located in the place or on the person to be searched. A “reasonable belief” is more than mere suspicion.
b. A search or seizure authorization may be based upon hearsay. Authorizations may be issued on the basis of unsworn written or oral statements. Absent extraordinary circumstances however, military magistrates should issue only written search authorizations based on written, sworn statements. In cases where oral search and seizure authorizations are given, written authorizations must be subsequently issued or detailed memoranda of record prepared as soon as possible.
c. When analyzing a probable cause search remember the following:
(1) Identify who is requesting the authorization and place them under oath;
(2) Get details: Ask what offense is being investigated; what the person wants to search for or seize; what’s the location of the matter/where will the search or seizure take place; how does this person know this information; and why should you believe them;
(3) Review all written matters presented by the requestor;
(4) Examine individuals who appear to make statements in support of the authorization;
(5) Determine whether probable cause exists using MRE 315 and Magistrate SOP Enclosure 8. Remember if you deny a request for lack of probable cause, you may tell the requestor in general terms why the request is being denied but you should not tell the requestor was is needed to establish probable cause, to include, suggesting additional evidence, areas of inquiry, or how to cure any deficiencies in the request;
(6) Take notes during the entire process and use format provided in Magistrate SOP Enclosure 9; keep copies of documents reviewed for your file; and safe guard all matters in case need for later.
a. Search authorizations should explicitly state whether the authorizations are to be executed during the nighttime or as exceptions to the “knock and announce” requirements.
b. An inventory of all property seized will be made at the time of the seizure (or soon thereafter) and a copy of the inventory will be provided to the person from whom the property was seized.
c. After execution of the authorization, the authorization along with a copy of the inventory will be returned to the magistrate and thereafter, the magistrate will transmit all documents and allied papers to the SJA, appropriate law enforcement office, or as local policy dictate. The magistrate must maintain a copy of each authorization issued, inventories resulting therefrom, and all other relevant documents or matters.
d. Military magistrates should pay close attention the Magistrate Sop and applicable case law when authorizing search and seizure of electronic evidence.
Pretrial Confinement Procedures:
1. Authority: Military magistrates do not confine Soldiers. The magistrate’s duty is to review another’s decision to do so. All military magistrates are authorized to review the propriety of continued pretrial confinement.
a. Magistrates must conduct a magistrate review within 7 days of imposition of confinement, or for good cause shown may extend the time for completion of such review to 10 days. If the 7-day review is conducted within the 48 hour window then no 48-hour review is necessary. Magistrates must note in their decision memoranda, along with supporting reasons, if the 48-hour review was not conducted or conducted by a person the magistrate believes is not neutral and detached.
b. Military magistrates may review a decision or reconsider a decision to continue pretrial confinement up until referral. This authority is not geographically limited.
a. The Government bears the burden of establishing the necessity of continued pretrial confinement. In order to do so, the Government must establish the requirements for pretrial confinement under R.C.M. 305(h)(2)(B) by a preponderance of the evidence. A fact is established by a preponderance of the evidence when it is more likely than not to be true. Remember, the law favors the release of confinees pending determination of guilt or innocence. Pretrial confinement normally is not appropriate for summary court-martial level offenses.
b. Pretrial Confinement Probable Cause Standard – A magistrate must be convinced that there is probable cause to believe confinement is warranted. Probable cause to order pretrial confinement exists when there is a reasonable belief that:
(1) An offense triable by court-martial has been committed;
(2) The person confined committed it;
(3) Continued confinement is necessary because it is foreseeable: confine will not appear OR will engage in serious criminal misconduct; and
(4) Less severe forms of restraint are inadequate. (One does not have to employ lesser forms of restraint but must consider them).
c. Magistrates must perform either a documentary review or conduct a hearing to review whether necessity for continued pretrial confinement exits. The confine and his Defense counsel must be allowed to appear, if practicable. A command representative, usually the trial counsel, may also attend but the hearing/review should not be delayed solely to allow attendance of a command representative. A confinee may “waive” appearance, but the review itself cannot be waived.
d. The Government must provide the magistrate with the confinement order and any documentation supporting pretrial confinement to include but not limited to, the commander’s 72-hour review, the 48-hour review (if completed), and the preferred charges by noon of the day following confinement, unless local policy requires otherwise. If these documents are not immediately available, the TC will forward them to the magistrate the same day as completed. Government also must immediately notify a magistrate of any re-confinement of a person and the reasons thereof, where the magistrate performed the initial review.
e. Upon receipt of the information, the military magistrate will expeditiously set the time, date, and location for a pretrial review. The review shall take place in a private setting as scheduled, absent a showing of good cause. The courtroom should not be used and the magistrate will not wear a judicial robe. Unless personal appearance is waived or determined by the magistrate to be impracticable, the Government shall produce the confinee for personal appearance before the military magistrate at the time, date and location set. Failures to show will be noted in the magistrate’s memorandum along with reasons why the Soldier was not produced.
f. A pretrial confinement review is not a court-martial, Article 32, or adversarial process. Absent extraordinary circumstances, a military magistrate should not question the confinee. If must, provide proper rights and counsel advice and use DA Form 3881. The confine may elect to make a statement and he/she may fully consult with in doing so or to answer any questions. The confinee’s defense counsel also may make a statement for the confinee, and the trial counsel may make a statement on behalf of the command. Neither however should be permitted to call witnesses, cross-examine any witnesses. Both parties may submit for review written matters pertaining to any aspect of the magisterial function, including matters pertaining to the substance of the charged or suspected offenses. Additional information may be gathered from commanders, supervisors in the confinement facility, the SJA office, or other having relevant information if a basis for further inquiry exists.
g. All magistrate decisions will be set forth in a written memorandum (see Magistrate SOP Enclosure 13) with copies furnished to defense and trial counsel, commander of the military confinement facility, and the supervising military judge. A magistrate’s decision must be communicated to the confine; however this requirement may be accomplished by providing a copy of the written memorandum to the confine as well. If the magistrate determines that the confine should be released, the confinee’s unit commander will be notified immediately. The magistrate may properly defer announcing a decision until the command is informed.
a. Follow the script.
b. Do not comment on the charges or conduct of the confinee.
c. Do not recommend restriction or other conditions upon release, if it is determined that continue pretrial confinement is not warranted.
d. Do not make a determination whether the conditions of confinement or the command’s actions warrant any sentencing credit.
e. Reconsideration can be based on any significant information not previously considered.
f. Once released, a confine may not be returned to pretrial confinement except when an additional offense is committed or upon receipt of newly discovered information, either alone or in conjunction with all other available evidence, now justifies confinement.
g. If the commander who directed pretrial confinement decides that the confinee should be released, the magistrate has no role or review responsibilities in regards to the confinee’s release from confinement.
h. Consult a military judge when a request for a supplemental review is based on a complaint of illegal pretrial confinement.
i. Contact the supervising military judge also when receiving repeated or questionable requests.
j. Notify the supervising military judge and servicemember’s unit commander before conducting a pretrial confinement review on a military member from another Service.
1. Magistrates will not speak to the media about the duties. Refer the media to public affairs and notify the supervising MJ.
2. At the request of counsel, a military judge, a law enforcement official or an Article 32 investigating officer, magistrates will provide copies of any affidavit, authorization, notes or other documents prepared as part of the military magistrate’s duty that may be at issue.
3. Magistrates may be contacted and interviewed by trial and defense counsel. Be accurate and precise as possible, and keep a copy of any written statement you provide.
Local Specific Procedures
4. Within the Fort Bliss area, military magistrates have no authority to issue authorizations for the 801 military housing area as it lies outside of the Fort Bliss federal property area. See Map handout.