The Act: The so-called "Posse Comitatus Act" provides, in part; "[w]hoever, 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 under this title or imprisoned not more than two years, or both." (18 U.S.C. § 1385)
"Posse" means "to be able," or "to have power." "Comitatus" means "county." At common law, "Posse Comitatus" referred to the power of the sheriff to summon aid from every male in the county over 15 years of age and not infirm to assist in preserving the peace. (See People v. Bautista (2004) 115 Cal.App.4th 229, 233, fn. 2.)
Some states, including California, still retain one form or another of this power. (See P.C. § 150; making it an infraction for any able-bodied person over the age of 18 to fail to assist a law enforcement officer requesting such assistance.)
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Purpose: The federal Act was enacted to prevent the use of military personnel to help enforce civilian law, thus preventing the U.S. Government from becoming "a government of force," i.e., run by the military. (People v. Bautista, supra, at p. 233, fn. 2.)
In 1981, Congress amended the Posse Comitatus Act to allow for certain military assistance in fighting the war on drugs. (See 18 U.S.C. §§ 371-378) However, these statutes were specifically "not [to] include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law." (18 U.S.C. § 375)
"[R]egular and systematic assistance by military investigative agents to civilian law enforcement in the investigation of local drug traffic" raises issues as to whether the "Posse Comitatus Act" has been violated. (People v. Blend (1981) 121 Cal.App.3rd 215, 228.)
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Case Law:
In Blend (at pp. 225-228), it was held that the Posse Comitatus Act was not violated when an active duty Wave assisted local law enforcement with arranging the purchase of cocaine from the defendant, despite the cooperation of the Naval Investigative Service (NIS) which permitted the investigation to proceed on the base, provided the investigator with passes, and assisted in appellant's arrest.
Per the Court, the Wave acted on her own initiative as a private citizen. Moreover, she was not regularly involved in law enforcement activities with the military, and her usefulness to civil law enforcement was unrelated to the fact that she was a Wave.
The court also found that the cooperation by the NIS in permitting the investigation of appellant to continue on the base did not demonstrate a violation of the act, and there was no evidence that the NIS arranged or participated in a program to detect violation of the civil narcotics laws.
In Bautista (at pp. 232-237), use of an Army sergeant and his drug-sniffing dog that alerted on the defendant's storage locker in which 100 pounds of marijuana was later found, did not constitute a violation of the "Posse Comitatus Act" because the sergeant did not participate in any stage of the investigation and search other than to point out the location of the defendant's hidden drugs by smelling odors in a public place.
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Sanctions for Violations: It is questionable whether the use of the Exclusionary Rule is a proper sanction for a violation of the "Posse Comitatus Act:"
The Fourth Circuit in United States v. Walden (4th Cir. 1974) 490 F.2nd 372, 376-377; found no indication of widespread violation of the Act or its policy and declined to adopt an exclusionary rule. The court stated that the statute was previously little known, that there was no evidence that the violation in this case was deliberate or intentional, that the policy expressed in the Posse Comitatus Act is for the benefit of the nation as a whole, and not designed to protect the personal rights of defendants. Noting that a rationale for adopting an exclusionary rule for Fourth Amendment violations is that available alternative remedies have proved ineffectual, the court expressed confidence that the military would take steps to ensure enforcement of the act.
However, the Court noted at page 377; "Should there be evidence of widespread or repeated violations in any future case, or ineffectiveness of enforcement by the military, we will consider ourselves free to consider whether adoption of an exclusionary rule is required as a future deterrent." (See also United States v. Wolffs (5th Cir. 1979) 594 F.2nd 77, 84-85.)
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