1976] Posse Comitatus ACT 717 cuted under its rather broad proscription since its enactment.” Its judicial application has been primarily limited to cases involving jurisdictional contests, challenges to indictments, and attempts to exclude evidence on the ground that the government's case has been tainted by a violation of the Act. A. Initial Cases: Use of the Posse Comitatus Act to Challenge the Court's Jurisdiction The first reported application of the Posse Comitatus Act, Ex Parte Mason," arose in connection with the habeas corpur petition of a soldier who had been convicted of murdering a civilian inmate whom he w:3 guarding. The soldier-petitioner sought to invalidate his military conviction for lack of jurisdiction, reasoning that the Posse Comitatus Act prohibited him from guarding a civilian jail in his military capacity. Thus, the allege crime could be no more than a breach of civil peace not triable in a military court.” Although this agument finds support in the Congressional intent behind the Act, the District Court rejected it sub silentio and denied the writ.T After Mason, the statute remained surprisingly dormant until the close of the Second World War, when a series of cases involving United States To The lack of both public and prival prosecution for violation of the statute suggests a measure of success in reducing the use of federal troops to "execute the law." While it may be unsafe to speculate o broa-fly, it is apparent that no^rious violations did not occ: after the Act passed. Had this not been the case, it seems clear the Act's fervent Southern supporters, who violently opposed any troop interference in domestic affairs, would have initiated criminal proceedings, even had it required private prosecution—an action more common at 1' .` time. For a discussion of the private prosecution remedy, see McDonald, Toward a Bicentennial Revolution in Criminal Justice: The Return of the Victim, supra at 649, n this issue, and Comment, Private Prosecution: A Remedy for District Attorney's Unwarranted Inaction, 65 YALE LJ. 209 (1955). Senator McMillan recognized the potential for abuse where any citizen, differing with the manner in which federal troops were employed, might bring an information under the statute and, thus, significantly interfere with efficient use of the Army. In response, Senator Teuer merely acknowledged that the President might grant a pardon, even ab initio, to circumvent the problem. See 7 Cong. Rec. 4299 (1878). 17 256 F. 384, 385 (N.D.N.Y. 1882). 78 These were the grounds on which the Judge Advocate General had issued an opinion reversing the findings and sentence of the court martial. Id. at 386. Cf. JAGA 1953/ 8755, November 12, 1953: The detail of military personnel to a state penitentiary to guard prisoners who volunteered to participate in a research program sponsored by The Surgeon General would be prohibited by the 'Posse Comitatus,`ct. To The Court viewed the reversal by the Judge Advocate General as merely advisory and accred it no judicial significance. Instead, it relied on the prior fadings of 'he Sunt Court that military courts may punish offenses which prejudice good order and mulit; discipli, e. See Ex parte Mason, 105 US. 696 (1899) 718 THE AMERICAN CRIMINAL LAW REVIEW [Vol. 13:70 citizens, charged with treason and located in occupied foreign territory, revived the Posse Comitatus Act. Chandler v. United States,TM the leading authority in this series of cases," dealt with the issue of whether or not the Posse Comitatus Act precluded the arrest and transportation to trial. of a U.S. national in Germar.y by United States troops. The court held that it did not on grounds that the actions taken comprised the sole manner in which the defendant could have been brought within the jurisdiction of the court, save for a voluntary appearance." Dispositive in the court's mind was the fact that the arrest occurred in occupied enemy territory, where the military power was in control.” Subsequent couTM**, relying on Chandler, found both jurisdiction and ability to act on the part of the military authority in such situations." A more recent consideration of this issue arose in United States v. Cotton, in the context of the extraterritorial 2: "ication of federal law to U.S. civilians in Viet Nam. The appellants had been convicted of theft of government property arising from fraudulent conversion of money and property of the military exchanges in the Far East." The United States military authorities in Viet Nam, having negotiated release of the appellants from local authorities," physically restrained and transported the appellants to Hawaii where they were delivered to U.S. marshals for arrest." The appellants then urged dismissal of the charges or a finding of lack of jurisdiction on grounds that the military conduct violated the Posse Comitatus Act and deprived them of due process. The court denied appellats' requested relief stating that “the remedy requested exceeds that required by the conduct.””” 30 171 F.2d 921 (1st Cir. 1948), cert. denied 336 U.S. 918 (1949), reh. denied, 336 U.S. 947 (1949). * See, eg., Gillars v. United States, 182 F.2d 962, 972 (D.C. Cir. 1950); D'Aquino v. United States, 192 F.2d 338. 351 (9th Cir. 1951), cert. denied, 343 US. 935 (1952). * 171 F.2d at 936. See, eg., Gillars v. United States, 182 F.2d at 973; D'Aquino v. United States, 192 F.2d at 351. Prior to these decisions, it was settled that extraterritorial jurisdiction over U.S. citizens could be exercised under certain circumstances. See generally Blackmer v. United States, 284 U.S. 421 (1932). 85 471 F.2d 744 (9th Cir. 1973), cert. ú ́nied, 411 US. 936 (1973). 36 471 F.2d at 745. 87 There is no extradition treaty between the United States and the Republic of Viet Nam. Thus, local charges under the latter's jurisdiction were withdrawn in order that the defendants might be delivered to United States authorities. Id. B. The Drug Cases: Use of the Posse Comitatus Act as an Exclusionary Rule 719 Allegations of Posse Comitatus Act violations accompanied a number of drug investigations on or near military bases during the past decade. The tenor of the arguments posited-none of which has been successful-was that use of the military to execute the civil law violates the Posse Comitatus Act, thus evidence obtained through such activity was tainted and inadmissible in court. An examination of these decisions reveals that the courts have avoided the exclusionary question by finding no violation of the Act in the first place. These cases also illustrate the broad spectrum of military involvement with civilian law enforcement officials, from the permissible to the illegal, and demonstrate the failure of the courts to establish the proper delineation of military and civil authority. In Burns v. State," a civilian volunteered to aid the military in its ongoing investigation of drug usage among military personnel at Fort Hood, and was given marked money in order to solicit purchases of drugs from military personnel. Based upon the narcotics purchased by the civilian, local police, accompanied by military CID authorities, apprehended varior's military traffickers." Appellant, convicted for sale of marijuana, urged as grounds for reversal that the evidence had been obtained in violation of the Posse Comitatus Act and should not have been admitted at trial. The court distinguished between civil aid to military authorities and military aid to civilian authorities, finding the former permissible under the Posse Comitatus Act." Thus, the crucial factu. in the case was the direct reporting of the civilian's purchase to local civilian police authorities." The event was characterized as totally “civil" in nature; the military authorities did no more than accompany the local police who actually made the arrest." 91 473 S.W.2d 19 (Tex. Crim. App. 1971). 92 Id. at 20. 93 Id. at 21. * Id. The result in Burns is wholly consistent with the statutory exclusion of the Posse Comitatus Act where action is authorized by an Act of Congress. Since the military bas been given express authority to investigate those who are subject to the Uniform Code of Military Justice, neither a technical violation of the Act, nor one of its spirit, was presented in Burns. See notes 67-68 supru, and accompanying text. See also note 96 infra. 95 473 S.W.2d at 20. * An opinion of the Judge Advocate General of the Air Force provides insight to the salient distinction The instigation by the OSI of a valid search by state officers will be construed as OSI participation. However, the Pusse Comitatus Act does not 720 THE AMERICAN CRIMINAL LAW REVIEW [Vol. 13:703 The reverse of the Burns situation is illustrated in Hubert v. State," and Hildebrand v. State, where military investigations produced drug convictions of civilians. Both cases began with military agents' investigations of soldiers whom they believed to be involved in drug use and/or distribution. When the course ir investigations led them to civilian suppliers, however, they immedway contacted local police authorities for aid." The civilian supplie.s were then approached by undercover military authorities, in concert with loca: police, for the purpose of purchasing drugs. These purchases formed the bases of their convictions; and, as the grounds of their appeals, they alleged violation of the Posse Comitatus Act. In each case, finding no violation of the Act, the courts emphasized that the local police authorities did not summon the military agents' assistance, but that the military authorities sought the assistance of the local police.1 Thus, the court in Hildebrand stated "the soldier led the agents to a location outside the scope of their military jurisdiction, at which time the agents assumed no greater authority than that of a private citizen.ma The application of the Posse Comitatus Act in the Hildebrand and Hubert cases has several weaknesses. The opinions strongly suggest a stringent and mechanical application of the statute tha* does not extend beyond its words to its real meaning. The Hildebrand court's conception of the actions of the military personnel as being no greater “than that of a private citizen" ignores the fundamental Congressional intent in passing the Act: prohibiting military intrusion within the scope of civilian au apply to investigations of violations of the Uniform Code of Military Jus tice by persons subject to the Code. Accordingly, there is no legal reason which would prevent the OSI from requesting civilian law enforcement authorities to issue and implement a search warrant for the purpose of effecting a search of the off-base dwelling place of a person subject to the Code and suspected of a violation thereof when such search might reasonably be expected to produce evidence pertaining to such suspected violation. In the conduct of official investigations OSI agents may instigate valid searches by state or other civilian officials. They may also participate in resultant searches and seizures when requested to do so by the law enforce ment authorities to whom authority to conduct such searches and seizures is issued. Further, they may obtain information or evidence from civilian witnesses and they may request assistance from civilian law enforcement agencies in obtaining evidence or information from civilian witnesses. JAGAF 1957/11, February 7, 1957. See note 111 infrà and accompanying text. # 504 P.2d 1245 (Okla. Crim. App. 1972). 9 507 P.2d 1323 (Okla. Crim. App. 1973). 504 P.2d at 1246; 507 P.2d at 1324, 100 504 P.2d at 1246-47; 507 P.2d at 1325. 106 304 P.2d at 1247 (emphasis added); 507 P.2d at 1325. 1976] Posse Comitatus ACT 721 thority 102 Furthermore, reliance on the fact that the military sought the aid of local officials appears misplaced. While a factor to be considered, the legality of the subsequent activity should not be determined solely by who acted first.103 As the Posse Comitatus Act prohibits the willful use of "any part" of the Army or Air Force to these ends, this is too simplistic an approach to effectuate Congress' intent. The Hubert and Hildebrand cases further illustrate the problems facing a defendant when the development of the case against him rests in large. part on actions undertaken by the military. The defense, in each case, argued that the Posse Comitatus Act prohibited the actions of the military agents, thereby rendering them incompetent as witnesses.10 The courts, however, did not reach the question of an appropriate remedy when testimony tainted by a Posse Comitatus Act violation is offered; rather, they simply found no violation. Thus, while such a defense tactic based on competency may appear, on its face, a rather obtuse approach to the problem of limiting the admissibility of evidence at trial, meaningfui relief from prohibited action is not apparently present.108 The Hiluebrand and Hubert cases extend the scope of permissible military authority in executing the law to its outermost limit. Thus, any action beyond those colorably justified under the Hubert-Hildebrand tationale clearly violates both the letter and the spirit of the Posse Comi 1.38 It is abundantly clear that the Posse Comitatus Act reaches the single soldier acting under color of authority, it mattering “... not how many he trcops, nor uy whom commanded...." See note 24 supra and accompanying text. This is not to say, however, that soldiers foresake the privileges or duties of citizenship by virtue of their military status for the debates make equally clear that they may act "...not as soldiers but as men having souls in their bodies." 7 Cong. Rec. 4245 (1878) (remarks of Senator Merrimon). Senator Hill further elucidated: ... Of course there are occasions in all countries where under the laws it is the duty of every man to save life, to save property, to suppress crime. I care not whether he is a soldier of whether he is a citizen, whether a man or a woman.... But that is not the question involved here. The question is not involved in this section whether soldiers would be guilty of crime when they should suppress a crime like any other citizen would suppress it. The point is in their character as an army. Id. at 4247. 103 Also to be considered is the objective of both the military and the local police. For example, if the suspect is to be prosecuted by civil authorities and the purpose of the joint activity is to facilitate such prosecution, military activity which goes beyond mere observation raises a question of violation of the Posse Comitatus Act. See notes 74, 75, & 96 supra and accompanying text. 104 504 P.2d at 1246-47; 507 P.2d at 1325. 103 See notes 184-186 infra and accompanying text. |