Neutral and Detached Requirement

Overview of neutral and detached requirement:

Neutral and Detached RequirementThe official issuing a search authorization must be neutral and detached.
See Mil. R. Evid. 315(d). See also United States v. Ezell , 6 M.J. 307 (C.M.A. 1979) (discusses four separate cases where commanders’ neutrality was attacked).

  1. A commander is not neutral and detached when he or she:
    1. Initiates or orchestrates the investigation (has personal involvement with informants, dogs, and controlled buys); or,
    2. Conducts the search.
  2. A commander may be neutral and detached even though he or she:
    1. Is present at the search;
    2. Has personal knowledge of the suspect’s reputation;
    3. Makes public comments about crime in his or her command; or,
    4. Is aware of an on-going investigation.
  3. “The participation of a commander in investigative activities in furtherance of command responsibilities, without more, does not require a per se disqualification of a commander from authorizing a search under M.R.E. 315.” See U.S. v. Huntzinger , 69 M.J. 1, 6 (C.A.A.F. 2010).
  4. Alternatives: Avoid any potential “neutral and detached” problems by seeking search authorization from:
    1. A military magistrate; or,
    2. The next higher commander.

A military magistrate

Avoid any potential