POSSE COMITATUS and the TERRY STOP

[Scruloose]

Questions arise for me from other threads. Specifically, in this thread, fushj00mang states that he’s Air Force police, who apparently has some law enforcement authority outside the base. He states:

In fact, with the shortage of County deputies, Shaw AFB’s SP’s have taken nearly full jurisdiction for traiffic control and the like for US 76/378 from the end of Broad Street (about 10 miles from the base’s East Gate) to the county line, SC-441 from the beginning of Patriot Parkway (about 4 miles from the East Gate) to the town limits of Dalzell, and US-521 from the 521/441 interchange to the 521/378 junction.

In Sumter County, my shield means as much as a Deputy’s star or a City officer’s shield does.

And this:

Ran your question by my Chief today. Asides from him calling me a dumbass for wasting his time with a ‘stupid-assed question,’ he informed me that nominally, our own jurisdiction would end where the razor-wire tipped fence sat, but that in 1966, Shaw AFB and the county of Sumter went into agreement that the area surrounding the base could and should be patrolled by both military and civilian authorities. Apparently, back then, there was a drastic shortfall in manpower and the base offered to pickup the shortfall. In the end, through our squadron liason officer (a staff NCO, actually) with the Sherrif’s Department, we can make pickups and whatnot (mostly for speeding and traffic violations.) We are under expressed orders not to assist in serving warrants, unless both the County Council and base commander have written their approval for the action (its been done once, and we supplied 2 SP’s to assist in a crackhouse takedown which involved 22 deputies and 10 city officers.) If the individual is a civilian, he is held on location until the Sherrif’s deputies come and pick him up.

Now, this just doesn’t seem right. 18 USC 1385 states simply this shouldn’t be done. I have also located a Dept of Defense memo that extends the act to Navy and Marine Corps. So what’s the deal here? Is there some agreement on a Federal or State level that allows this? Could a State even enter into this agreement? Wouldn’t it have to come from Congress? I’m certainly not stating that this arrangement between the AFB and the county is illegal, but if it is legal, how so?

Then, the Terry stop. In this thread, we have this from fushj00mang:

About a month ago, I was part of a two car speed checkpoint (speedtrap, yea, but I can’t call it that, can I?) when a car goes by with green underpinning lights, huge crome rims, and a glass-pack muffler. Nothing illegal in my town, mind you, but enough to catch my attention. Seeing as it was ‘my turn,’ I hit the blues and pulled this guy. He pulls over, I get out and do the licence/registration/proof of insurance bit. White kid, 18 years old, dressed in a typical ‘urban’ fashion. Before I said ANYTHING about why I’d pulled him, he starts cursing about how there was no justification for the pull, he wasn’t speeding, and there was nothing in the car. BINGO!

I radio for the second car, staffed by Sherrif’s Deputy Cpl. Dave (will someone please clairfy if I can post last names on the board?) XXXXXXX, my ‘teammate,’ and he comes over. Since I had the authority to make the pull, but not search the vehicle, Dave did it, and came up with an open bottle of Jim Beam under the passenger’s seat, a Glock 17 (long slide, chambered for 9mm) two clips of Federal 135 grain +p+ hollowpoints (remember the ‘cop killer’ controversey about 5 years back? Same round) and six ounces of marajuana in the wheel well of his trunk.

Now, either a very critical detail of this story is left out, or this is illegal, right? I’m not much on land law enforcement, but I thought there needed to be a specific reason to stop someone, i.e. some violation of law, or evidence thereof. Am I correct in stating the only exception to this is the DUI checkpoint?

So, what the Straight Dope on all of this? Also, what was the historical reasoning behind the Posse Comitatus Act? I’ve heard/read different reasonings.

[NotMrKnowItAll]

Indeed! I wanted to ask a question regarding that Terry stop. He goes on and on about what happened. Detailing everything include that he stopped the car on a hunch. When this goes to trial, and if he and Cpl. Dave decide to lie about it, would these post here on our humble message board be of any use to the defendant?

[Bricker]

As to the traffic stop, I agree with you, and I’ll go further – even if this was a Terry stop, the search of the car was unsupported by probable cause. Terry allows a brief, investigative detention supported by a reasonable, articulable suspicion of wrongdoing, and a pat-down search – NOT an intrusive search – of car passengers if the officer can point to specific, articulable facts that made him fear for his safety. I haven’t heard anything approaching probable cause, even if I concede that the car offered reason for a Terry stop.

As to the first point - I don’t know. Years of criminal defense work, and not once did I have occasion to argue a violation of posse comitatus. Go figure.

I don’t see anything wrong with your reasoning, though.

• Rick

[Bricker]

*Originally posted by NotMrKnowItAll *Indeed! I wanted to ask a question regarding that Terry stop. He goes on and on about what happened. Detailing everything include that he stopped the car on a hunch. When this goes to trial, and if he and Cpl. Dave decide to lie about it, would these post here on our humble message board be of any use to the defendant?

There would be a very real foundational problem getting posts from here admitted as evidence, since there is no good way to authenticate them. For example, what if the accused decided to post these messages, hoping to help his case?

There’s also a hearsay problem.

• Rick

[Monty]

I think there’s also the problem of illegal use of military personnel for civilian law enforcement.

Honestly, I just flat out don’t bellieve that any county, or any other civilian jurisdiction for that matter, employs military personnel in their role as military law enforcement to perform civilian law enforcement duties over civilians in a civilian jurisdiction. I can tell you that I would certainly be challenging my ticketing and especially my arrest by military law enforcement off base!

IIRC, there are those Active Duty personnel who have gained employment as police officers in their time off; however, that is them performing their civilian police functions in their role as civilian police officers. They are not using military equipment, military property (and people in the military aren’t military property, so don’t think about tossing up that bs), nor military authority to exercise those functions.

[Cliffy]

*Originally posted by Bricker *
There’s also a hearsay problem.

Goes to impeach, your honor, not for the truth of the matter asserted.

–Cliffy

[Bricker]

*Originally posted by Cliffy *
Goes to impeach, your honor, not for the truth of the matter asserted.

Sure, as to fushj00mang’s testimony, it’s not hearsay. As to Cpl. Dave’s testimony, it is. That’s the only hearsay niggle I saw.

• Rick

[Scruloose]

*Originally posted by Monty *
I think there’s also the problem of illegal use of military personnel for civilian law enforcement.

Well, that’s pretty much my main concern, and question here. In checking into it, I noted that

“As the Posse Comitatus Act is a statute and not a constitutional provision it can be circumvented by subsequent statutory provisions, which authorize the military’s use in a law enforcement role.”**

This is the case for the DoD’s involvement in border and counter drug ops (Title 10), but I certainly don’t think it applies to what fushj00mang is speaking of. Perhaps we can hear from fushj00mang himself what the source of this civilian authority is?

FYI, I found the answer to my last question:

The Act was born out of the extensive use of federal troops for law enforcement in the South following the Civil War. Congress, recognizing that the long-term use of the Army to enforce civilian laws posed a potential danger to the military’s subordination to civilian control, passed the Act. The 1878 Posse Comitatus Act made it a crime for anyone to use the Army to enforce federal, state, or local civil laws.**

**Major Craig T. Trebilcock, U.S. Army, in an address made at CSIS in March 2000 and represents his personal opinion and is not necessarily that of his current employer or the U.S. Army Reserve.

[Billdo]

Chandeleur, I understand that you are a member of the U.S. Coast Guard, which has maritime law enforcement as one of its primary missions. I also understand that the Posse Comitatus act (or any authority extending it) does not apply to the USCG. I have some questions that you or someone else might be able to shed some light on.

To what extent is the USCG involved in non-maritime or civilian law enforcement in conjunction with its maritime law enforcement duties? And what is the authority of a Coast Guard member with regard to law enforcement (both maritime and otherwise)?

Do you know of any Coast Guard arrangement with civilian law enforcement like that described by fushj00mang? How about involvement with inter-agency task forces and the like with regard to areas within the Coast Guard’s primary law enforcement functions (drug interdiction, marine resource protection, etc.)?

I also understand that the Coast Guard has virtually unlimited power to board and search vessels. To what extent does the Coast Guard have to deal with search and seisure law in law to the extent its law enforcement involving things other than vessels afloat?

Thanks.

[Scruloose]

*Originally posted by Billdo *
To what extent is the USCG involved in non-maritime or civilian law enforcement in conjunction with its maritime law enforcement duties? And what is the authority of a Coast Guard member with regard to law enforcement (both maritime and otherwise)?

The Coast Guard’s law enforcement authority comes from 14 USC 89, which states in part:

The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance.

This authority is pretty much beaten into your head from the moment you begin your le training in the CG. With regard to authority for assisting other agencies, that is also codified under 14, in section 141, which states in part:

The Coast Guard may, when so requested by proper authority, utilize its personnel and facilities (including members of the Auxiliary and facilities governed under chapter 23) to assist any Federal agency, State, Territory, possession, or political subdivision thereof, or the District of Columbia, to perform any activity for which such personnel and facilities are especially qualified.

In assisting other agencies, this happens quite frequently in the maritime environment where jurisdictions overlap. Joint operations with Marine Patrols, Game Wardens, Sheriffs, police, FBI, you name it happen all the time. It depends on the need of the agencies and the job at hand; often we are just a platform (the boats and cutters) and back up. We have many regulations concerning the use of policies when working with other folks. In one recent incident in NY, the CG was assisting State Police with a local who owned property on a river. The CG gave them a ride and served as back up, actually walking up to the mans door. The subject fired a shotgun at one of the Coasties, and hit the tree he took cover behind. Everyone returned fire, and the subject was shot by the police officer. For us to be involved in a shooting is very rare. Alot of times, we ferry the Sheriff out to islands so they can serve warrants, in which case we are platform/backup only. We have no interest other than needed assistance.

As far as authority in the non-maritime realm, the only thing I can think of is CGIS - CG Investigative Services. Akin to CID, they have their own authority (14 USC 95) and missions which I won’t pretend to know in full. I do believe that some are in the post 9/11 air marshall program.

Do you know of any Coast Guard arrangement with civilian law enforcement like that described by fushj00mang? How about involvement with inter-agency task forces and the like with regard to areas within the Coast Guard’s primary law enforcement functions (drug interdiction, marine resource protection, etc.)?

No. Well, maybe. In Alaska, I believe some Coasties can be/are deputized Federal Marshalls. This is probably due to the remoteness of the areas in which we have a presence . When we first took possession of Alaska, the CG Cutter Captains were the only Govt reps around, and as such, did everything LE wise. This provision is also codified in law, I don’t remember the cite. There are no arrangements like the one in question in the states that I’m aware of, but that’s not to say they don’t exist. The CG is not in anyway subject to the PCA. As far as maritime joint task forces, you betcha. All kinds, not only with all levels of US gov’t, but with foreign govts as well. The Bahamians are the folks we work with the most that I’ve seen. One Thanksgiving, I spent off the coast of Belize, working with two Belizian police officers on board the cutter and a British warship, conducting counter drug ops. We didn’t get any drugs, but we had a pretty kick ass football tourney on the Playstation that trip. Most of my LE experience is in the Carribbean.

I also understand that the Coast Guard has virtually unlimited power to board and search vessels. To what extent does the Coast Guard have to deal with search and seisure law in law to the extent its law enforcement involving things other than vessels afloat?

No no no, not true. The CG has much authority in boarding any vessel for which we have jurisdiction, mostly for the purposes of checking compliance with Federal rules and regs. For US vessels, it’s an administrative inspection. It can be done without a warrant, and has been (rightfully) put to the Supreme Court, and upheld. It is not a search. The 4th amendment applies, and to conduct a search, probable cause is required. There are exceptions, of course. To name a few, there are Customs border searches that we may conduct if the prereqs for one are met. We have full Customs authority, as well. There are also exceptions when dealing with foreign vessels, too much to go into detail here. As far as things other than vessels, I’m not sure what you’re getting at. If it’s on the water, we pretty much have authority and jurisdiction. If it’s on land, it’s someone else’s issue unless we pursued them there. As far as search and seizure, as I said, the 4th most definitely applies.

We go to great pains not to arrest people. It happens all the time, but not as often as you may think. It ties us up in courts, the prisoners have additional requirements to them being federal prisoners, and generally the locals or state can and will take them for us, when they also have A&J. Our authority is almost absolute, and for that we must take extra care that abuses are not tolerated. When the Nation was young, and the Cutter Service formed, Alexander Hamilton charged the first officers with something that all of us have to read and know to this day. It’s on the very first page of our LE manual. In part:

While I recommend in the strongest terms to the respective officers, activity, vigilance and firmness, I feel no less solicitude, that their deportment may be marked with prudence, moderation and good temper. Upon these last qualities, not less that the former, must depend the success, usefulness and consequently continuance of the establishment in which they are included. They cannot be insensible that there are some prepossessions against it, that the charge with which they are intrusted [sic] is a delicate one, and that it is easy by mismanagement, to produce serious and extensive clamour, disgust and alarm.

 **They will always keep in mind that their countrymen are freemen, and, as such, are impatient of everything that bears the least mark of a domineering spirit.**  They will, therefore, refrain, with the most guarded circumspection, from whatever has the semblance of haughtiness, rudeness, or insult.   If obstacles occur, they will remember that they are under the particular protection of the laws and that they can meet with nothing disagreeable in the execution of their duty which these will not severely reprehend.  This reflection, and a regard to the good of the service, will prevent, at all times a spirit of irritation or resentment.  They will endeavor to overcome difficulties, if any are experienced, by a cool and temperate perseverance in their duty--by address and moderation, rather than by vehemence or violence.  The former style of conduct will recommend them to the particular approbation of the President of the United States, while the reverse of it--even a single instance of outrage or intemperate or improper treatment of any person with whom they have anything to do, in the course of their duty, will meet with his pointed displeasure, and will be attended with correspondent consequences.

Emphasis mine.

Hope this helps. If there was something more specific you wanted to know, let me know.

[Billdo]

Hope this helps. If there was something more specific you wanted to know, let me know.

That just about completely covers my question, which was really just idle curiousity. That’s a great quote from Hamilton.

It seems to me that using Coast Guardsmen to patrol the community surrounding a base could probably be justified under 14 USC 141, which you quoted. I wonder if there is similar authority covering the other services?

Also, you mention that some Coasties may be deputized US Marshals. I wonder if fushj00mang and other Shaw AFB personnel have been deputized as members of local civilian law enforcement. I wonder if that would get around Posse Comitatus? (It still doesn’t answer the Terry stop question.)

Actually, there is one more specific thing I want to know. Who won the Playstation football tourney?

[Monty]

Billdo: Please see paragraph three of my first posting in this thread.

Additionally, patrolling the base perimeter itself may require the Servicemember doing such patrolling to observe from outside the confines of the base; however, that does not & cannot constitute performing civilian law enforcement (such as “speed traps” and parking enforcement) of the civilian community adjacent to the base.

[Scruloose]

*Originally posted by Billdo *
**Also, you mention that some Coasties may be deputized US Marshals. I wonder if fushj00mang and other Shaw AFB personnel have been deputized as members of local civilian law enforcement. I wonder if that would get around Posse Comitatus? (It still doesn’t answer the Terry stop question.)
**

I’m guessing not. Exceptions to the PCA must come from Congress, or Congressional act. The exceptions that I’m aware of were Congressionally authorized, for purposes of National interest (counter drugs & border patrol). Subsequent legislation that circumvents the act, must still come from Congress.

As Monty points out, if they want to do this on their own time, that’s up to service policy. But they cannot do this while acting as military members, at least as far as I can tell.

As for the tourney, if memory serves, the EM1 with his Miami Dolphins beat the CO’s Pittsburgh Steelers. My beloved Bears didn’t fair so well. Eh, whatta you gonna do.