Defending Military Members
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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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