(b) Apprehension.
(1) Definition and scope.
(i) Definition. Apprehension is the taking of
a person into custody. (ML, 130.7 [a]).
(ii) Scope. This subdivision applies only to
apprehensions made by persons authorized to do so under paragraph (2) of this
subdivision with respect to offenses subject to trial by court-martial. Nothing
in this subdivision limits the authority of the Federal or State law
enforcement officials to apprehend persons, whether or not subject to trial by
court-martial, to the extent permitted by applicable enabling statutes and
other law. Nothing in this subdivision shall be construed to limit the
authority of persons authorized to apprehend offenders to secure the custody of
an alleged offender until proper authority may be notified (ML,
130.9[e]).
(2) Who may
apprehend. The following officials may apprehend any person subject to trial by
court-martial (see ML, 130.7):
(i) Military
law enforcement officials. Security police, military police, master-at-arms
personnel, members of the shore patrol, and persons designated by proper
authorities to perform military criminal investigative, guard, or police
duties, whether subject to the code or not, when, in each of the foregoing
instances, the official making the apprehension is in the execution of law
enforcement duties.
(ii) Civilian
law enforcement officials. Peace officers acting pursuant to their special
duties and police officers.
(iii)
Commissioned, warrant, petty, and noncommissioned officers. All commissioned,
warrant, petty, and noncommissioned officers on active State duty, annual
training, or during inactive duty training or when on any ordered military
duty.
(iv) Civilians authorized to
apprehend deserters. Under ML, 130.8, any civil officer having authority to
apprehend offenders under laws of the United States of any state, territory,
commonwealth, or possession, when the apprehension is of a deserter from the
organized militia.
(3)
Grounds for apprehension. A person subject to the code may be apprehended for
an offense triable by court-martial upon probable cause to apprehend (see also
ML, 130.9[d]). Probable cause to apprehend exists when there are reasonable
grounds to believe that an offense has been or is being committed and the
person to be apprehended committed or is committing it. Persons authorized to
apprehend under subparagraph (2)(iii) of this subdivision may also apprehend
persons subject to the code who take part in quarrels, frays, or disorders
among persons subject to the code, wherever they occur.
(4) How an apprehension may be made.
(i) In general. An apprehension is made by
clearly notifying the person to be apprehended that that person is in custody.
This notice must be given orally or in writing (ML, 130.9[b] and
[c]).
(ii) Warrants. Neither
warrants nor any other authorization shall be required for an apprehension
under these rules except as required in subparagraph (5)(ii) of this
subdivision.
(iii) Use of force.
Any person authorized under these rules to make an apprehension may use such
force and means as reasonably necessary under the circumstances to effect the
apprehension.
(5) Where
an apprehension may be made.
(i) In general.
An apprehension may be made at any place, except as provided in subparagraph
(ii) of this paragraph.
(ii)
Private dwellings. A private dwelling includes dwellings, on or off a military
installation, such as single family houses, duplexes, and apartments. The
quarters may be owned, leased, or rented by the residents, or assigned, and may
be occupied on a temporary or permanent basis. "Private dwelling" does not
include the following, whether or not subdivided into individual units: living
areas in military barracks, vessels, aircraft, vehicles, tents, bunkers, field
encampments, and similar places. No person may enter a private dwelling for the
purpose of making an apprehension under these rules unless:
(a) Pursuant to consent under Mil. R. Evid.
314(e) or 316(d)(2);
(b) Under
exigent circumstances described in Mil. R. Evid. 315(g) or
316(d)(4)(B);
(c) In the case of a
private dwelling which is military property or under military control, or
nonmilitary property in a foreign country:
(1) if the person to be apprehended is a
resident of the private dwelling, there exists, at the time of the entry,
reason to believe that the person to be apprehended is present in the dwelling,
and the apprehension has been authorized by an official listed in Mil. R. Evid.
315(d) upon a determination that probable cause to apprehend the person exists;
or ordered the arrest or a superior authority, on duty inconsistent with the
status of arrest, but this shall not prevent requiring the person arrested to
do ordinary cleaning or policing, or to take part in routine training and
duties;
(2) if the person to be
apprehended is not a resident of the private dwelling, the entry has been
authorized by an official listed in Mil. R. Evid. 315(d) upon a determination
that probable cause exists to apprehend the person and to believe that the
person to be apprehended is or will be present at the time of the
entry.
(d) In the case
of a private dwelling not included in clause (c) of this subparagraph:
(1) if the person to be apprehended is a
resident of the private dwelling, there exists at the time of the entry, reason
to believe that the person to be apprehended is present and the apprehension is
authorized by an arrest warrant issued by competent civilian authority;
or
(2) if the person to be
apprehended is not a resident of the private dwelling the apprehension is
authorized by an arrest warrant and the entry is authorized by a search
warrant, each issued by competent civilian authority.
A person who is not a resident of the private dwelling
entered may not challenge the legality of his or her own apprehension on the
basis of failure to secure a warrant or authorization to enter that dwelling,
or on the basis of the sufficiency of such a warrant or authorization. Nothing
in this subparagraph affects the legality of an apprehension which is incident
to otherwise lawful presence in a private dwelling.
(d) Pretrial restraint.
(1) Types of pretrial restraint. Pretrial
restraint is moral or physical restraint on a person's liberty which is imposed
before and during disposition of offenses. Pretrial restraint may consist of
conditions on liberty, arrest, or confinement. (ML, 130.9[a]).
(i) Conditions on liberty. Conditions on
liberty are imposed by orders directing a person to do or refrain from doing
specified acts. Such conditions may be imposed in conjunction with other forms
of restraint or separately.
(ii)
Arrest. Arrest is the restraint of a person by oral or written order not
imposed as punishment, directing the person to remain within specified limits;
a person in the status of arrest may not be required to perform full military
duties such as commanding or supervising personnel, serving as guard, or
bearing arms. The status of arrest automatically ends when the person is
placed, by the authority who ordered the arrest or a superior authority on duty
inconsistent with the status of arrest, but this shall not prevent requiring
the person arrested to do ordinary cleaning or policing, or to take part in
routine training and duties.
(iii)
Confinement. Pretrial confinement is physical restraint, imposed by order of
competent authority, depriving a person of freedom pending disposition of
offenses (see N.Y.R.C.M. 305).
(2) Who may order pretrial restraint.
(i) of officers and warrant officers. Only a
commanding officer to whose authority the officer or warrant officer is subject
may order pretrial restraint of that officer or warrant officer (ML,
130.9[c]).
(ii) Of enlisted
persons. Any officer may order pretrial restraint of any enlisted
person.
(iii) Delegation of
authority. The authority to order pretrial restraint of officers and warrant
officers may not be delegated. A commanding officer may delegate to warrant,
petty, and noncommissioned officers authority to order pretrial restraint of
enlisted persons of the commanding officer's command or subject to the
authority of that commanding officer.
(iv) Authority to withhold. A superior
competent authority may withhold from a subordinate the authority to order
pretrial restraint. An order withholding such authority shall be in
writing.
(3) When a
person may be restrained. No person may be ordered into restraint before trial
except for probable cause. Probable cause to order pretrial restraint exists
when there is a reasonable belief that:
(i)
an offense triable by court-martial has been committed;
(ii) the person to be restrained committed
it; and
(iii) the restraint ordered
is required by the circumstances.
(4) Procedures for ordering pretrial
restraint. Pretrial restraint other than confinement is imposed by notifying
the person orally or in writing of the restraint, including its terms or
limits. The order to an enlisted person must be delivered personally by the
authority who issues it or through other persons subject to the code (ML,
13.9[b]). The order to an officer must be delivered personally by the authority
who issues it or by another commissioned officer (ML, 130.9[c]). Pretrial
confinement is imposed pursuant to orders by a competent authority by the
delivery of a person to a place of confinement.
(5) Notice of basis for restraint. When a
person is placed under restraint, the person shall be informed of the nature of
the offense which is the basis for such restraint (ML, 130.10).
(6) Punishment prohibited. Pretrial restraint
is not punishment and must not be used as such. No person who is restrained
pending trial may be subjected to punishment or penalty for the offense which
is the basis for that restraint. Prisoners being held for trial must not be
required to undergo punitive duty hours or training, perform punitive labor, or
wear special uniforms prescribed only for post-trial prisoners. This
subdivision does not prohibit minor punishment during pretrial confinement for
infractions of the rules of the place of confinement. (ML, 130.13). Prisoners
must be afforded facilities and treatment under regulations of the Department
of Corrections of the State of New York.
(7) Release. Except as otherwise provided in
N.Y.R.C.M. 305, a person may be released from pretrial restraint by a person
authorized to impose it. Pretrial restraint terminates when a sentence is
adjudged, the accused is acquitted of all charges, or all charges are
dismissed.
(8) Administrative
restraint. Nothing in this subdivision prohibits limitations on a service
member imposed for operational or other military purposes independent of
military justice, including administrative hold or medical reasons.
(e) Pretrial confinement.
(1) In general. Pretrial confinement is
physical restraint, imposed by order of competent authority, depriving a person
of freedom pending disposition of charges. It is executed only at a guard house
or at a jail, penitentiary, or prison designated by the Governor or
Commissioner of the Department of Corrections, State of New York for that
purpose (ML, 130.11).
(2) Who may
be confined. Any person who is subject to the code may be confined if the
requirements of this subdivision are met.
(3) Who may order confinement. (See
N.Y.R.C.M. 304 [b].) No provost marshal, commander of a guard, master-at-arms
or warden, keeper or officer of a city or county jail or of any other jail,
penitentiary, or prison designated by the Governor or Commissioner of the
Department of Corrections may refuse to his charge by a commissioned officer of
the Armed Forces, when the committing officer furnishes a statement, signed by
him, of the offense charged against the prisoner (ML, 130.12[a]).
(4) When a person may be confined. No person
may be ordered into pretrial confinement except for probable cause (ML,
130.9[d]). Probable cause to order pretrial confinement exists when there is a
reasonable belief that:
(i) an offense
triable by court-martial has been committed;
(ii) the person confined committed it;
and
(iii) confinement is required
by the circumstances.
(5) Advice to the accused upon confinement.
Each person must be promptly informed of:
(i)
the nature of the offenses for which held;
(ii) the to remain silent and that any
statement made by the person may be used against the person;
(iii) the right to retain counsel at no
expense to the State, and the right to request assignment of military counsel;
and
(iv) the procedures by which
pretrial confinement will be reviewed.
(6) Military counsel. If requested by the
prisoner, military counsel must be provided to the prisoner before the initial
review under paragraph (9) of this subdivision. Counsel may be assigned for the
limited purpose of representing the accused only during the pretrial
confinement proceedings before charges are referred. If assignment is made for
this limited purpose, the prisoner must be so informed. Unless otherwise
provided by regulations of the Chief of Staff to the Governor, a prisoner does
not have a right under this subdivision to have military counsel of the
prisoner's own selection.
(7) Who
may direct release from confinement. Any commander of a prisoner, an officer
appointed by the Chief of Staff to the Governor to conduct the review under
paragraph (9) of this subdivision, or, once charges have been referred, a
military judge detailed to the court- martial to which the charges against the
accused have been referred may direct release from pretrial confinement. For
purposes of this subdivision, any commander includes the immediate or higher
commander of the prisoner and the commander of the installation on which the
confinement facility is located.
(8) Notification and action by commander.
(i) Report. Unless the commander of the
prisoner ordered to pretrial confinement, the commissioned, warrant,
non-commissioned, or petty officer, or the commander of a guard,
master-at-arms, warden, keeper or officer of a city or county jail or of any
other jail, penitentiary or prison designated by the Governor or Commissioner
of the Department of Corrections to whose charge the prisoner was committed
must, within 24 hours after that commitment, cause to be made a report to the
commander which must contain the name of the prisoner, the offenses charged
against the prisoner, and the name of the person who ordered or authorized
confinement (see ML, 130.12[b]).
(ii) Action by commander.
(a) Decision. Not later than 72 hours after
ordering a prisoner into pretrial confinement, or after receipt of a report
that a member of the commander's unit or organization has been confined, the
commander must decide whether pretrial confinement will continue.
(b) Requirements for confinement. The
commander must direct the prisoner's release from pretrial confinement unless
the commander believes upon probable cause, that is, upon reasonable grounds,
that:
(1) an offense triable by a
court-martial has been committed;
(2) the prisoner committed it; and
(3) confinement is necessary because it is
foreseeable that:
(i) the prisoner will not
appear at a trial, pretrial hearing, or investigation; or
(ii) the prisoner will engage in serious
criminal misconduct; and
(iii) less
severe forms of restraint are inadequate.
Serious criminal misconduct includes intimidation of
witnesses or other obstruction of justice, seriously injuring others, or other
offenses which pose a serious threat to the safety of the community or to the
effectiveness, morale, discipline, readiness, or safety of the command, or to
the national security of the United States. As used in this subdivision,
national security means the national defense foreign relations of the United
States and specifically includes: a military or defense advantage over any
foreign nation or group of nations; a favorable foreign relations position; or
a defense posture capable of successfully resisting hostile or destructive
action from within or without, overt or covert.
(c) Memorandum. If continued
pretrial confinement is approved, the commander must prepare a written
memorandum which states the reasons for the conclusion that the requirements
for confinement in clause (b) of this subparagraph have been met. This
memorandum may include hearsay and may incorporate by reference other documents
such as witness statements, investigative reports, or official records. This
memorandum must be forwarded to the reviewing officer under paragraph (9) of
this subdivision. If such a memorandum was prepared by the commander before
ordering confinement, a second memorandum need not be prepared. However,
additional information may be added to the memorandum at any time.
(9) Procedures for
review of pretrial confinement.
(i) In
general. A review of the adequacy of probable cause to believe the prisoner has
committed an offense and of the necessity for continued pretrial confinement
must be made within seven days of the imposition of confinement.
(ii) By whom made. The review under this
paragraph must be made by a neutral and detached officer appointed by the
senior commander of the unit to which the prisoner was assigned at the time of
the alleged commission of the offense.
(iii) Nature of review.
(a) Matters considered. The review under this
paragraph must include a review of the memorandum submitted by the prisoner's
commander under clause (8)(ii)(c) of this subdivision. Additional written
matters may be considered, including any submitted by the accused. The
prisoner, and the prisoner's counsel, if any, must be allowed to appear before
the reviewing officer and make a statement, if practicable. A representative of
the command may appear before the reviewing officer to make a
statement.
(b) Rules of evidence.
Except for Mil. R. Evid., section V (Privileges) and Mil. R. Evid. 302 and 305,
the Military Rules of Evidence do not apply to the matters
considered.
(c) Standard of proof.
The requirements for confinement under clause (8)(ii)(b) of this subdivision
must be proved by a preponderance of the evidence.
(iv) Extension of time limit. The reviewing
officer may, for good cause, extend the time limit for completion of the
initial review to 10 days after the imposition of pretrial
confinement.
(v) Action by
reviewing officer. Upon completion of review, the reviewing officer must
approve continued confinement or order immediate release.
(vi) Memorandum. The reviewing officer's
conclusions, including the factual findings on which they are based, must be
set forth in a written memorandum. A copy of the memorandum and of all
documents considered must be maintained and provided to the accused or the
government on request.
(vii)
Reconsideration of approval of continued confinement. The reviewing officer
must, after notice to the parties, reconsider the decision to confine the
prisoner upon request based upon any significant information not previously
considered.
(10) Review
by military judge. Once the charges for which the accused has been confined are
referred to trial, the military judge must review the propriety of pretrial
confinement upon motion for appropriate relief.
(i) Release. The military judge must order
release from pretrial confinement only if:
(a) the reviewing officer's decision was an
abuse of discretion and there is not sufficient information presented to the
military judge justifying continuation of pretrial confinement under clause
(8)(ii)(b) of this subdivision;
(b)
information not presented to the reviewing officer establishes that the
prisoner should be released under clause (8)(ii)(b) of this subdivision;
or
(c) the provisions of
subparagraphs (9)(ii) or (iii) of this subdivision have not been compiled with
and information presented to the military judge does not establish sufficient
grounds for continued confinement under clause (8)(ii)(b) of this
subdivision.
(ii)
Credit. The military judge must order administrative credit under paragraph
(11) of this subdivision for any pretrial confinement served as a result of an
abuse of discretion or of failure to comply with the provisions of paragraphs
(6), (8), or (9) of this subdivision.
(11) Remedy. The remedy for noncompliance
with paragraphs (6), (8), (9), or (10) of this subdivision is an administrative
credit against the sentence adjudged for any confinement served as the result
of such noncompliance. Such credit is computed at the rate of one day credit
for each day of confinement served as a result of such noncompliance. This
credit is to be applied in addition to any other credit the accused may be
entitled as a result of pretrial confinement served. This credit is to be
applied first against any confinement adjudged. If no confinement is adjudged,
or if the confinement adjudged is insufficient to offset all the credit to
which the accused is entitled, the credit is to be applied against fine and
forfeiture of pay, in that order, if adjudged. For purposes of this paragraph,
one day of confinement is equal to one day of total forfeiture or a like amount
of fine. The credit cannot be applied against any other form of
punishment.
(12) Confinement after
release. No person whose release from pretrial confinement has been directed by
a person authorized in paragraph (7) of this subdivision may be confined again
before completion of trial except upon the discovery, after the order of
release, of evidence of misconduct which, either alone or in conjunction with
all other available evidence, justifies confinement.
(13) Exceptions.
(i) Operational necessity. The Chief of Staff
to the Governor may suspend application of subparagraphs (5)(ii) and (iii),
paragraph (6), clauses (8)(ii)(a) and (c), and paragraph (9) of this
subdivision to specific units or in specified areas when operational
requirements of such units or in such areas would make application of such
provisions impracticable.
(ii) At
sea. Subparagraphs (5)(ii) and (iii), paragraph (6), clause (8)(ii)(c), and
paragraph (9) of this subdivision does not apply in the case of a person on
board a vessel at sea. In such situations, confinement on board the vessel at
sea may continue only until the person can be transferred to a confinement
facility ashore. Such transfer must be accomplished at the earliest opportunity
permitted by the operational requirements and mission of the vessel. Upon such
transfer the memorandum required by clause (8)(ii)(c) of this subdivision must
be transmitted to the reviewing officer under paragraph (9) of this subdivision
and must include an explanation of any delay in the transfer.
(f) Initial
disposition.
(1) Who may dispose of offenses.
Each commander has discretion to dispose of offenses by members of that
command. Ordinarily the immediate commander of a person accused or suspected of
committing an offense triable by court-martial initially determines how to
dispose of that offense. A superior commander may withhold the authority to
dispose of offenses in individual cases, types of cases, or generally. A
superior commander may not limit the discretion of subordinate commander to act
on cases over which authority has not been withheld.
(2) Policy. Allegations of offenses should be
disposed of in a timely manner at the lowest appropriate level of disposition
listed in paragraph (3) of this subdivision.
(3) How offenses may be disposed of. Within
the limits of the commander's authority, a commander may take the actions set
forth in this paragraph to initially dispose of a charge or suspected offense.
(i) No action. A commander may decide to take
no action on an offense. If charges have been preferred, they may be
dismissed.
(ii) Administrative
action. A commander may take or initiate administrative action, in addition to
or instead of other action taken under this subdivision. Administrative actions
include corrective measures such as counseling, admonition, reprimand,
exhortation, disap-proval, criticism, censure, reproach, rebuke, extra military
instruction, or the administrative withholding of privileges, or any
combination of the above.
(iii)
Nonjudicial punishment. A commander may consider the matter pursuant to ML
130.15, nonjudicial punishment. See Part 519 of this Title.
(iv) Disposition of charges. Charges may be
disposed of in accordance with N.Y.R.C.M. 401.
(v) Forwarding for disposition. A commander
may forward a matter concerning an offense, or charges, to a superior or
subordinate authority for disposition.
(4) National security matters. If a commander
not authorized to convene general courts- martial finds that an offense
warrants trial by court-martial, but believes that trial would be detrimental
to the prosecution of a war or harmful to national security, the matter shall
be forwarded to the general court- martial convening authority for action under
N.Y.R.C.M. 407(b).
(g)
Preferral of charges.
(1) Who may prefer
charges. Any person subject to the code may prefer charges (ML,
130.30[a]).
(2) How charges are
preferred; oath. A person who prefers charges must:
(i) sign the charges and specifications under
oath before a person described in ML, 131.2, authorized to administer oaths;
and
(ii) state that the signer has
personal knowledge of or has investigated the matters set forth in the charges
and specifications and that they are true in fact to the best of that person's
knowledge and belief (ML, 130.30[a]).
(3) How to allege offenses.
(i) In general. The format of charge and
specification is used to allege violations of the code.
(ii) Charge. A charge states the article of
the code, which the accused is alleged to have violated.
(iii) Specification. A specification is a
plain, concise, and definite statement of the essential fact constituting the
offense charged. A specification is sufficient if it alleges every element of
the charged offense expressly or by necessary implication. No particular format
is required.
(iv) Multiple
offenses. Charges and specifications alleging all known offenses by an accused
may be preferred at the same time. Each specification shall state only one
offense.
(v) Multiple offenders. A
specification may name more than one person as an accused if each person so
named is believed by the accuser to be a principal in the offense which is the
subject of the specification.
(4) Harmless error in citation. Error in or
omission of the designation of the article of the code or other regulation
violated is not a ground for dismissal of a charge or reversal of a conviction
if the error or omission did not prejudicially mislead the accused.
(h) Notification to accused of
charges.
(1) Immediate commander. The
immediate commander of the accused must cause the accused to be informed of the
charges preferred against the accused, and the name of the person who preferred
the charges and of any person who ordered the charges to be preferred, if
known, as soon as practicable (ML, 130.30[b]).
(2) Commanders at higher echelons. When the
accused has not been informed of the charges, commanders at higher echelons to
whom the preferred charges are forwarded shall cause the accused to be informed
of the matters required under paragraph (1) of this subdivision as soon as
practicable.
(3) Remedy. The sole
remedy for violation of this subdivision is a continuance or recess of
sufficient length to permit the accused to adequately prepare a defense, and no
relief may be granted upon a failure to comply with this subdivision unless the
accused demonstrates that the accused has been hindered in the preparation of a
defense.