United States v. Mack, 65 M.J. 108 (a servicemember
facing criminal charges may be subjected to various forms of pretrial
restraint pending court-martial, including confinement, arrest,
restriction, or conditions on liberty).
(a person accused of a crime
retains the presumption of innocence and may not be punished pending
trial; if the conditions of pretrial restraint are more rigorous than
necessary to ensure the presence of an accused at trial or to prevent
additional misconduct, the accused may receive credit against the
adjudged sentence).
2006
United States v. Christian, 63 M.J. 205 (revocation of off-post privileges is not restriction tantamount to confinement).
United
States v. Regan, 62 M.J. 299 (the procedural protections or the
credit
provided by RCM 305 in connection with pretrial confinement apply to
restriction tantamount to confinement only when the conditions and
constraints
of that restriction constitute physical restraint, the essential
characteristic
of confinement; to come within the scope of RCM 305, the conditions or
terms of
the restriction must constitute physical restraint depriving an accused
of his
freedom; thus, restriction tantamount to confinement does not
necessarily
trigger the application of RCM 305).
2003
United
States v. Rendon, 58 MJ 221 (both "apprehension"
and "custody" are terms of art in military law; apprehension is the
taking of a person into custody; custody may include physical
restraint, albeit
temporary; all commissioned, warrant, petty, and noncommissioned
officers may
take a person into custody pursuant to RCM 302(b)(2); but only a
commissioned
officer may order an enlisted person into pretrial restraint and only a
commanding officer may order a civilian or officer into pretrial
restraint;
pretrial confinement is a form of pretrial restraint).
(military apprehension, custody, and pretrial confinement involve
physical
restraint; absent some military necessity requiring a different rule,
Fourth
Amendment considerations apply to these forms of restraint; however,
CAAF finds
no basis upon which to extend the Fourth Amendment and other procedural
protections embodied in R.C.M. 305 to pretrial restraint, including
restriction
tantamount to confinement, that do not include physical restraint).
2000
United
States v. Smith, 53 MJ 168 (placement in
administrative restraint can be
justified on
the basis of ensuring the servicemember’s safety under the military
purpose
justification of RCM 304(h)).
(military judge correctly
found that
pretrial conditions imposed upon appellant did not amount to pretrial
punishment: (1) appellant had stolen from others in his
dormitory, and
restricting his unescorted access was appropriate; (2) other
restrictions
imposed upon appellant applied equally to each individual housed in a
special
squadron, whether there for disciplinary or administrative purposes;
(3)
appellant’s dress was a result of appellant’s own misunderstanding and
not an
order to dress distinctively; (4) there was legitimate concern for
appellant’s
safety; and (5) the command was concerned about the possibility of
appellant
committing further thefts from other cadets).