MILITARY RULE OF EVIDENCE 311 - ILLEGAL SEARCHES AND SEIZURES
The law involving illegal obtained evidence general relates to two issues - whether the search and seizure were legal under the 4th Amendment to the Constitution and whether the evidence is admissible.
The Military Rules of Evidence address searches and seizures in Military Rule of Evidence 311.
Illegally obtained evidence is challenged in court through a motion to suppress or other objections.
Military Rule of Evidence 311 (d) requires counsel to move for the suppression of illegally obtained evidence before entering a plea.
The burden of proof, however, is on the prosecutor to show that the evidence was obtained legally and is admissible.
Unfortunately, the 4th Amendment has been heavily diluted by the appellate courts. There are many exceptions to the 4th Amendment. Some of those exceptions include:
- The Good Faith Exception - the idea that otherwise illegally obtained evidence is admissible if the government was acting in good faith when they obtained the evidence. The classic example is when law enforcement conducts a search based on information that is later determined to be incorrect.
- The Inevitable Discovery Exception - this kind of evidence is admissible if the government can show that they would have eventually discovered the evidence through lawful means.
- The Emergency / Hot Pursuit Exception - permits the admissibility of evidence obtained while law enforcement discovers the evidence during an emergency or in hot pursuit of a subject.
Often issues of illegal searches and seizures boils down to whether the service member had a reasonable expectation of privacy in the place searched.
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Daniel Conway Partner
For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...Read More
Gary Myers Partner
Gary Myers is a former JAG officer and one of the most experienced civilian military defense counsel in the country. He attended the University of Delaware where he received his undergraduate degree in chemical engineering in 1965. Gary Myers served as president of his freshman, sophomore and junior classes and went on in his senior year to be president of the student body. Gary Myers then attended the Pennsylvania State University, Dickinson School of Law, and graduated in 1968. Gary Myers paid his way through law school by ...Read More
Brian Pristera Attorney
A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...Read More
Joseph Galli Attorney
Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...Read More