United States v. Allen Eugene Hartley & John Joseph Murphy, 796 F.2d 112 (5th Cir. 1986). · Go Syfert
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United States v. Allen Eugene Hartley & John Joseph Murphy, 796 F.2d 112 (5th Cir. 1986). Cases Citing This Book View Copy Cite
59 citation events (13 in the last 25 years) across 18 distinct courts.
Strongest positive: United States v. Reynaldo Salinas (ca5, 2020-09-10)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Statutes interpreted (leading-cases list)
#2 10 U.S.C. § 371-378 cited 2× in this case · 23 total citations of statute #11 10 U.S.C. § 375 cited 2× in this case · 144 total citations of statute #3 10 U.S.C. § 371 cited 2× in this case · 25 total citations of statute #2 32 C.F.R. § 213.1-213.11 cited 1× in this case · 3 total citations of statute #8 10 U.S.C. § 374 cited 1× in this case · 28 total citations of statute
Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Reynaldo Salinas (2×) also: Cited "see"
5th Cir. · 2020 · confidence medium
See, e.g., United States v. Mullin, 178 F.3d 334, 342-43 (5th Cir. 1999); United States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986); United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979). 2 Case: 19-50936 Document: 00515557913 Page: 3 Date Filed: 09/09/2020 No. 19-50936 Evidence will not be excluded because of a violation of the PCA unless such violation is “‘widespread and repeated.’” Hartley, 796 F.2d at 115 (quoting Wolffs, 594 F.2d at 85 ).
discussed Cited as authority (rule) Gonzales v. Bravo
10th Cir. · 2014 · confidence medium
The Sixth Circuit has noted that "every federal court to have considered the issue has held that suppression is not an appropriate remedy for a violation of the Act.” Gilbert v. United States, 165 F.3d 470 , 474 n. 2 (6th Cir.1999) (citing United States v. Al-Talib, 55 F.3d 923, 930 (4th Cir.1995); Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir.1990); United States v. Hartley, 796 F.2d 112, 115 (5th Cir.1986)). 4 .
cited Cited as authority (rule) Aviles v. Department of the Army
D.P.R. · 2009 · confidence medium
Blackstone, Commentaries, 343-44)." United States v. Hartley, 796 F.2d 112, 115, n. 3 (5th Cir.1986). 5 .
discussed Cited as authority (rule) Wendi Mae Davidson v. State
Tex. App. · 2008 · confidence medium
See, e.g., United States v. Johnson, 410 F.3d 137, 146-47 (4th Cir.), cert. denied, 546 U.S. 952 (2005); United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986); United States v. Walden, 490 F.2d 372, 375 (4th Cir. 1974).
discussed Cited as authority (rule) Davidson v. State
Tex. App. · 2008 · confidence medium
See, e.g., United States v. Johnson, 410 F.3d 137, 146-47 (4th Cir.), cert, denied, 546 U.S. 952 , 126 S.Ct. 461 , 163 L.Ed.2d 350 (2005); United States v. Hartley, 796 F.2d 112,114 (5th Cir.1986); United States v. Walden, 490 F.2d 372, 375 (4th Cir.1974).
discussed Cited as authority (rule) Wendi Mae Davidson v. State
Tex. App. · 2008 · confidence medium
See, e.g. , United States v. Johnson , 410 F.3d 137, 146-47 (4th Cir.), cert. denied , 546 U.S. 952 (2005); United States v. Hartley , 796 F.2d 112, 114 (5th Cir. 1986); United States v. Walden , 490 F.2d 372, 375 (4th Cir. 1974).
cited Cited as authority (rule) Charles Gilbert (97-5040) and Jennings Gilbert (97-5041) v. United States
6th Cir. · 1999 · confidence medium
United States v. Al-Talib, 55 F.3d 923, 930 (4th Cir.1993); Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir.1990); United States v. Hartley, 796 F.2d 112, 115 (5th Cir.1986).
discussed Cited as authority (rule) Permissibility Under Posse Comitatus Act of Detail of Defense Department Civilian Employee to the National Infrastructure Protection Center (2×)
OLC · 1998 · confidence medium
Hayes, 921 F.2d at 104 ; United States v. Bacon, 851 F.2d 1312, 1313 (11th Cir. 1988); United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986); United States v. Hartley, 678 F.2d 961, 978 (11th Cir. 1982); Yunis, 681 F. Supp. at 892 ; United States v. Jaramillo, 380 F. Supp. 1375 (D.
discussed Cited as authority (rule) United States v. Shirley Ellen Hutchings and Kenneth Orville Hutchings (2×) also: Cited "see"
10th Cir. · 1997 · confidence medium
The Posse Comitatus Act (“PCA”) was enacted at the end of Reconstruction for the purpose of “limiting] ‘the direct active use of federal troops by civil law enforcement officers’ to enforce the laws of this nation.” U.S. v. Hartley, 796 F.2d 112, 114 (5th Cir.1986) (quoting U.S. v. Red Feather, 392 F.Supp. 916, 922 (D.S.D.1975)).
discussed Cited as authority (rule) United States v. Hutchings, S. (2×) also: Cited "see"
10th Cir. · 1997 · confidence medium
The Posse Comitatus Act (“PCA”) was enacted at the end of Reconstruction for the purpose of “limit[ing] ‘the direct active use of federal troops by civil law enforcement officers’ to enforce the laws of this nation.” U.S. v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986) (quoting U.S. v. Red Feather, 392 F. Supp. 916, 922 (D.S.D. 1975)).
discussed Cited as authority (rule) United States v. Luis Santiago Ramirez (2×)
10th Cir. · 1995 · confidence medium
These are the limited purposes for which evidence of other similar prior acts allegedly committed by Luis Ramirez on July 11, 1992 may be considered. 7 Because we agree with the district court that the prosecutor's comments were not prejudicial to defendant, we do not reach the question of whether the comments were actually improper 8 The purpose of the Posse Comitatus Act is to "limit 'the direct active use of federal troops by civil law enforcement officers' to enforce the laws of this nation." United States v. Hartley, 796 F.2d 112, 114 (5th Cir.1986) (quoting United States v. Red Feather, …
discussed Cited as authority (rule) United States v. Leonardo Mendoza-Cecelia, Terry Lee Greenberg, Hector Favio Marin-Hernandez
11th Cir. · 1992 · confidence medium
Accord United States v. Griley, 814 F.2d 967, 976 (4th Cir.1987); United States v. Hartley, 796 F.2d 112, 115 (5th Cir.1986); see also United States v. Roberts, 779 F.2d 565, 568 (9th Cir.1986) (exclusionary rule not warranted for violation of Navy regulations and 10 U.S.C. §§ 371-78 ). 10 .
discussed Cited as authority (rule) Larry Charbert Hayes v. Warden Hawes and Neil F. Hartigan, Attorney General for the State of Illinois
7th Cir. · 1990 · confidence medium
In United States v. Hartley, 678 F.2d 961, 978 (11th Cir.1982), cert. denied, 459 U.S. 1170 , 103 *104 S.Ct. 815, 74 L.Ed.2d 1014 (1983), the court noted that before military involvement in a criminal investigation is in violation of the Act, it must amount to “military permeation of civil law enforcement.” Similarly, in United States v. Hartley, 796 F.2d 112, 114 (5th Cir.1986), the court noted that the military involvement in the investigation must be “pervasive” in order to constitute a violation of the Act.
discussed Cited as authority (rule) State v. Roberts
Kan. Ct. App. · 1990 · confidence medium
Cases disclosing rejection or disapproval of imposition of the exclusionary rule include: United States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986), and State v. Short, 113 Wash. 2d at 40 (both finding no violation of PCA and also that in any event exclusion is inappropriate); United States v. Roberts, 779 F.2d 565 (9th Cir. 1986) (finding no violation of PCA but a violation of 10 U. S. C. §§ 371 et seq., and holding exclusionary rule inapplicable by analogy to PCA).
examined Cited as authority (rule) United States v. Yunis (3×) also: Cited "see, e.g."
D.D.C. · 1988 · confidence medium
United States v. Hartley, 796 F.2d 112, 114 (5th Cir.1986) (quoting United States v. Red Feather, 392 F.Supp. 916, 922 (D.S.D.1975)).
discussed Cited "see" Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act
OLC · 2021 · signal: see · confidence high
See United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986) (“[I]n examining allegations that military involvement in civilian law enforcement violated the Posse Comitatus Act, courts have noted that ‘aerial photographic reconnaissance flights and other like activities’ do not reflect direct military involvement violative of the Posse Comitatus Act.” (quoting Red Feather, 392 F. Supp. at 925 , and collecting cases)); Bissonette, 776 F.2d at 1391 (“[P]laintiffs charge that they were searched and subjected to surveillance against their will by aerial photo- graphic and visual searc…
cited Cited "see" United States v. Rowell Flora
5th Cir. · 2020 · signal: see · confidence high
See United States v. Hartley, 796 F.2d 112, 114-15 (5th Cir. 1986); United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979).
discussed Cited "see" United States v. Al Liby
S.D.N.Y. · 2014 · signal: see · confidence high
See id. at 114 ; Chandler v. United States, 171 F.2d 921, 936 (1st Cir.1948) (recognizing the Act’s purpose was "to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished”). .Def.
examined Cited "see" United States v. Jason W. Mullin (3×) also: Cited "see, e.g."
5th Cir. · 1999 · signal: see · confidence high
See United States v. Hartley, 796 F.2d 112, 114 (5th Cir.1986); see also generally Roger Blake Hohnsbeen, Note, Fourth Amendment and Posse Comitatus Act Restrictions on Military Involvement in Civil Law Enforcement, 54 Geo.
discussed Cited "see" State v. Cooper (2×) also: Cited "see, e.g."
N.M. Ct. App. · 1998 · signal: see · confidence high
See Hartley, 796 F.2d at 115 ; United States v. Walden, 490 F.2d 372, 376-77 (4th Cir.1974); see generally Annotation, 141 A.L.R.
cited Cited "see" State v. Valdobinos
Wash. · 1993 · signal: see · confidence high
See United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986).
discussed Cited "see" People v. Tyler
Colo. Ct. App. · 1993 · signal: see · confidence high
See United States v. Hartley, supra; Taylor v. State, supra. When, as here, evidence is obtained by the military and is offered in a civilian criminal proceeding, but the actions of the military personnel in acquiring the evidence are not shown to have been of such a manner as to be consistent with a military purpose in conformity with the PCA, the evidence is not admissible.
cited Cited "see" UNITED STATES OF AMERICA v. DOLORES ANN FLORES
unknown court · signal: see · confidence high
See United States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986).
examined Cited "see" UNITED STATES OF AMERICA v. JASON W. MULLIN (3×) also: Cited "see, e.g."
unknown court · signal: see · confidence high
See United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986); see also generally Roger Blake Hohnsbeen, Note, Fourth Amendment and Posse Comitatus Act Restrictions on Military Involvement in Civil Law Enforcement, 54 GEO.
discussed Cited "see, e.g." United States v. Fawaz Yunis, A/K/A Nazeeh
D.C. Cir. · 1991 · signal: see also · confidence medium
See United States v. Cotten, 471 F.2d 744, 749 (9th Cir.) (rejecting dismissal as remedy for alleged violation of Posse Comitatus Act on Ker-Frisbie grounds), cert. denied, 411 U.S. 936 , 93 S.Ct. 1913 , 36 L.Ed.2d 396 (1973); see also United States v. Hartley, 796 F.2d 112, 115 (5th Cir.1986) (noting courts’ hesitation to adopt exclusionary rule for violations of Posse Comitatus Act); United States v. Roberts, 779 F.2d at 568 (refusing to adopt exclusionary rule).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Allen Eugene HARTLEY and John Joseph Murphy, Defendants-Appellants
86-4061.
Court of Appeals for the Fifth Circuit.
Aug 7, 1986.
796 F.2d 112
Douglas Gelo, El Paso, Tex., for defendants-appellants., Joseph S. Cage, Jr., U.S. Atty., D.H. Perkins, Jr., Sonia D. Peters, Asst. U.S. Attys., Shreveport, La., for plaintiff-appellee.
Wisdom, Johnson, Higginbotham.
Cited by 30 opinions  |  Published
[*113] JOHNSON, Circuit Judge:

Defendants Allen Eugene Hartley and John Joseph Murphy appeal from their convictions for illegally importing marijuana into the United States in violation of 21 U.S.C. §§ 952(a), 960. Defendants urge on appeal that all evidence seized by the Government following their arrest should have been excluded on the basis that the Government violated the Posse Comitatus Act, 18 U.S.C. § 1385. Finding no grounds which warrant exclusion of the evidence, we reject defendants’ arguments and affirm the judgment of the district court.

I. BACKGROUND

The Posse Comitatus Act provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.

Defendants contend that the Government violated the Posse Comitatus Act by using United States Air Force equipment and personnel “to execute the laws.” In order to place defendants’ contention in the proper perspective, it is necessary to describe the events leading up to defendants’ arrest.

On May 2, 1985, United States Customs Service (“USCS”) Agent Eldon Kern was riding aboard an airplane operated by the 552nd Airborne Warning and Controls Systems Wing (“AWACS”) of the United States Air Force (“USAF”). The AWACS plane was engaged in a military mission to train USAF personnel in the operation of the equipment aboard the airplane. [1] Agent Kern’s presence on the airplane was pursuant to a program of cooperation between USCS and the Air Force. See generally 32 C.F.R. §§ 213.1-213.11 (1985). Under this program of cooperation, the Air Force allows USCS agents to accompany military missions on a space-available basis consistent with the mission’s military purpose. While on the flight, Agent Kern was assigned one of the nine radar screens aboard the Air Force plane. Agent Kern also had access to one of the airplane’s radios to communicate with USCS offices in New Orleans.

During the May 2,1985, mission, Captain Michael Shallenberger, who served on the AWACS mission as liaison officer to Agent Kern and as weapons director, spotted an unidentified aircraft on his radar screen. Since the aircraft was unidentified and headed toward the land area of the United States, it was of defense interest. Captain Shallenberger also pointed out the aircraft to Agent Kern, who looked at the tracking of the aircraft and radioed Customs officers of its presence. Since the spotted aircraft was also of interest to the security function of the USAF, Air Force personnel also continued to monitor the flight of the unidentified aircraft. At no time did the Air Force stop its military mission in order to provide assistance to Agent Kern.

Agent Kern informed the USCS’s office of the suspect aircraft, and intercept planes operated by Customs were dispatched. The Customs’ intercept aircraft reported that the suspect aircraft was a light twin engine plane.

Agent Kern continued to monitor the suspect aircraft’s activity as it landed on an unfinished highway near Alexandria, Louisiana. The suspect airplane took off shortly after it landed. Customs agents and other non-military officials on the ground immediately began a search where the airplane had landed. The agents found a large quantity of marijuana and later arrested defendant Hartley in the vicinity where the suspect airplane had landed.

After the suspect airplane took off from its Louisiana rendezvous, Agent Kern, still[*114] aboard the AWACS plane, resumed monitoring the suspect airplane until it landed again near Jackson, Mississippi, where defendant John Joseph Murphy was arrested. [2]

The district court denied defendants’ motion to suppress evidence based on the Government’s alleged violation of the Posse Comitatus Act. Defendants signed and filed plea arrangements in which they pleaded guilty to one count of the indictment in exchange for the dismissal of the remaining counts. The plea arrangement reserved defendants the right to appeal the denial of the motion to suppress.

II. POSSE COMITATUS ACT

Defendants assert that the participation of Captain Shallenberger and other Air Force personnel violates the Posse Comitatus Act and thus warrants the exclusion of all evidence obtained as a result of the defendants’ arrest. Defendants base this conclusion on their assertion that the military involvement was so pervasive as to represent “use[ ] ... of the ... Air Force ... to execute the laws____” 18 U.S.C. § 1385. After carefully examining the record, the jurisprudence interpreting the Posse Comitatus Act, and recently enacted statutes regarding use of military equipment and personnel, see 10 U.S.C. §§ 371-378, we hold that the acts of the Government in the instant case do not warrant creation or extension of an exclusionary rule.

The Posse Comitatus Act, [3] which was passed shortly after the end of the Reconstruction Era, was designed to limit “the direct active use of federal troops by civil law enforcement officers” to enforce the laws of this nation. United States v. Red Feather, 392 F.Supp. 916, 922 (D.S.D.1975). See also H.R. Rep. No. 97-71, Part II, 97th Cong., 1st Sess. 3 (1981), reprinted in 1981 U.S. Code Cong. & Ad. News 1781, 1785. See generally Furman, Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act, 7 Mil.L.Rev. 85 (1960); Note, Don’t Call Out the Marines: An Assessment of the Posse Comitatus Act, 13 Tex.Tech L.Rev. 1467 (1982). Congress has also sought to clarify the role of the military through recent enactments. H.R. Rep. No. 97-71, supra, at 3. As codified, sections 371 and 372 of Title 10 allow the military to share information and equipment with civilian law enforcement officials in certain instances. Sections 374(a) and (b) allow the Secretary of Defense to assign military personnel to operate and maintain equipment loaned to civilian officials in order to “monitor[] and communicate[ ] the movement of air and sea traffic.” 10 U.S.C. §§ 371, 372, 374(a), (b). [4] Moreover, in examining allegations that military involvement in civilian law enforcement violated the Posse Comitatus Act, courts have noted that “aerial photographic reconnaissance flights and other like activities” do not reflect direct military involvement violative of the Posse Comitatus Act. Red Feather, 392 F.Supp. at 925. See also United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D.1975), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir.1976) (per curiam),[*115] cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977).

It should also be noted that, even where a violation of the Posse Comitatus Act is found or suspected, courts have generally-found that creation or application of an exclusionary rule is not warranted. United States v. Wolffs, 594 F.2d 77 (5th Cir.1979); United States v. Roberts, 779 F.2d 565 (9th Cir.1986) (violation of Navy regulations and 10 U.S.C. §§ 371-378; no application or creation of exclusionary rule warranted); United States v. Walden, 490 F.2d 372 (4th Cir.), cert. denied, 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974); State v. Danko, 219 Kan. 490, 548 P.2d 819 (1976); State v. Sanders, 303 N.C. 608, 281 S.E.2d 7 (1981), cert. denied, 454 U.S. 973, 102 S.Ct. 523, 70 L.Ed.2d 392 (1981). [5] In Wolffs, this Court “pretermit[ted] discussion of whether there was a violation of the [Posse Comitatus Act] or [Army] regulation” in a case involving use of agents of the Army in a narcotics investigation. This Court stated:

We need not decide that complex and difficult issue because, assuming without deciding that there was a violation, application of an exclusionary rule is not warranted. If this Court should be confronted in the future with widespread and repeated violations of the Posse Comitatus Act an exclusionary rule can be fashioned at that time.

Wolffs, 594 F.2d at 85 (footnote omitted).

Turning to the circumstances surrounding the instant case, we find no basis to warrant the creation or application of an exclusionary rule. See Wolffs. No military personnel directly participated in the interdiction of defendants’ aircraft or in their arrest. Rather, the Air Force personnel and equipment provided only information regarding the movement of an unidentified aircraft entering the United States. Communication of such information, incidental to a military training mission, was contemplated by Congress. See 10 U.S.C. §§ 371, 374(b). [6] Moreover, as noted above, courts generally have found that such aerial reconnaissance does not violate the Posse Comitatus Act. This case fails to present any widespread or direct participation of the military in the interdiction of a vessel or aircraft, or in any search, seizure, or arrest. Cf. 10 U.S.C. § 375; 32 C.F.R. § 213.10(a)(3) (1985) (restricting such activity by military personnel). Thus, this case wholly fails to present a situation which might require considering the creation or application of the exclusionary rule. See Wolffs.

Accordingly, we reject defendants’ contention that violation of the Posse Comitatus Act warrants application of the exclusionary rule. The judgment of the district court is

AFFIRMED.

1

. Defendants’ counsel repeatedly urges in both his brief and oral argument to this Court that the primary purpose of the mission was to interdict drug smuggling into the United States. This Court has carefully examined the record and finds defendants’ contention unsupported; rather, the record fully supports the district court’s conclusion that the USAF personnel were on a military mission.

2

. At some point during Agent Kern’s tracking of the suspect airplane, Agent Kern and the USAF missions crew commander had a discussion during which the commander agreed to move the AWACS plane orbit northwards in order to continue monitoring the suspect aircraft. The record indicates that this change in orbit did not interfere with the USAF’s military mission. The record also indicates that the crew commander refused a similar request by Agent Kern during another part of the mission.

3

. The phrase "posse comitatus” is literally translated from Latin as the “power of the county” and is defined at common law to refer to all those over the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder. H.R.Rep. No. 97-71, Part II, 97th Cong., 1st Sess. 4 (1981), reprinted in 1981 U.S. Code Cong. & Ad. News 1781, 1786 (citing 1 W. Blackstone, Commentaries 343-44).

4

. Other portions of the enactment restrict the direct participation of military personnel in the interdiction of a vessel or aircraft or in a search, seizure or arrest unless such activity is otherwise authorized by law. 10 U.S.C. § 375. See also 10 U.S.C. § 376 (assistance provided by chapter not to affect the military preparedness of the United States).

5

. Defendants’ reliance for creation of an exclusionary rule on People v. Burden, 94 Mich.App. 209, 288 N.W.2d 392 (1979), is particularly unwarranted since that decision was reversed by the Michigan Supreme Court, 411 Mich. 56, 303 N.W.2d 444 (1981). In Taylor v. State, 645 P.2d 522 (Ok.Cr.1982), the court applied an exclusionary rule to a violation of the Posse Comitatus Act. Even if this Court were to take the step of creating an exclusionary rule for the Posse Comitatus Act, the Taylor case is clearly distinguishable since it involved the use of military police in an undercover drug operation and search.

6

. The House of Representatives report, which accompanied the enactment of 10 U.S.C. § 374(b), stated:

The Committee anticipates, however, that an increased sensitivity to the needs of civilian law enforcement officials, particularly in drug enforcement, will permit more compatible mission planning and execution. For example, the scheduling of routine training missions can easily accomodate the need for improved intelligence information concerning drug trafficking in the Caribbean.

H.R.Rep. No. 97-71, Part II, supra, at 8, U.S. Code Cong. & Admin.News 1981, p. 1791.