ARTICLE 134 - SEIZURE: DESTRUCTION, REMOVAL, OR DISPOSAL OF PROPERTY TO PREVENT
If a service member removes, disposes or destroys property as it was being seized, was about to be seized, or were efforts to seize the property, by person(s) who were authorized to do so, and if the accused knew about the seizure beforehand, he can be punished for the offense mentioned under paragraph 103, Article 134 (Seizure: Destruction, Removal, or Disposal of Property to Prevent) of the Manual for Court Martial.
The text of statute of Article 134 says that all neglects and disorders which are adverse to the discipline and good order in the armed forces, all conducts which can bring discredit to the armed forces, all offenses and crimes not capital, can be punished by a court martial.
ELEMENTS OF THE OFFENSE
- A person authorized to search or make seizures was seizing, was going to seize, or was making efforts to seize property.
- The accused removed, disposed or destroyed that property with the intention of preventing the seizure of the property.
- The accused was aware that the person authorized to search was seizing, going to seize or was making efforts to seize the property.
- In these circumstances, the accused's conduct was adverse to the discipline and good order of the armed forces or the nature of the act brought discredit to the armed forces.
WHAT IS ALLOWED TO CONDUCT SEARCHES AND SEIZURES?
According to the Military Rules of Evidence 316(c), any commissioned, warrant, petty or non-commissioned officer, and those executing police or guard duties or a criminal investigator, air force security forces member, military police, shore patrol, or any individual designated by the proper authorities to perform police or guard duties, or any agent of the authority, can seize property.
The accused cannot defend himself by arguing that the seizure or search was defective.
THE MAXIMUM PUNISHMENT FOR THIS OFFENSE
If any service member is charged with committing this offense and if he is held guilty at a court martial, he shall be punished with a dishonorable discharge, forfeiture of allowances and pay and 1 year of confinement.
RESTRICTION ON THE AUTHORITY TO UNDERTAKE SEARCH AND SEIZURES
Before looking into the punishment for removing, destroying or disposing a property to prevent its seizure, it is important to see if the act of searching and seizing itself was lawful.
A commanding officer has extraordinary responsibilities and his powers are broader than those vested in an officer with equal characteristics under a civilian government. He has been given implicit powers to authorize inspections and searches on the men under his command and to seize property. This power is considered indispensable to maintaining discipline and order. Still, there is a provision for an unlawful search, which restricts his powers.
Paragraph 152 of the Manual for Court Martial gives specifications for a 'lawful' search.
It says that a search is lawful when it is conducted:
- By the power is vested in a person via a court issued warrant.
- In connection with a lawful apprehension (arrest).
- In circumstances where immediate action is necessary to prevent the removal, destruction or disposal of criminal goods.
- When the accused has given his consent.
- By instructions of the commanding officer.
Searching the body of a service member is authorized only if the person has been apprehended or if it is felt that the accused has on his person, property of a criminal nature and to prevent its disposal, destruction or removal. For searches and seizures to be lawful, they have to be conducted 'according to military custom'.
If these specifications are not satisfied, and if there was an attempt to search and seize or if the property of the person was seized and if the person resisted the search or seizure, it may be possible to get an acquittal. Here is an example, where the accused did not prevent the authorized person from searching and seizing.
In United States Vs Brown, the Court of Military Appeal ignored the maxim of 'search conducted according to military custom' and held a search unlawful. In that case, a commanding officer had ordered the apprehension and search of 10 service members, including the main accused, who were suspected of using narcotics. A subsequent search of the accused found two bottles of heroin. The Court of Military Appeals found that the search was unlawful. So the bottles of heroin could not be admitted as evidence.