This opinion is subject to revision before publication 

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ 

UNITED STATES 

Appellant 

v. 

Roberto ARMENDARIZ, Master Sergeant 

United States Marine Corps, Appellee 

No. 19-0437 

Crim. App. No. 201700338 

Argued June 4, 2020—July 20, 2020 

Military Judges: Matthew J. Kent, Brian E. Kasprzyk, 

and Mark D. Sameit 

For Appellant: Lieutenant Kimberly Rios, JAGC, USN 

(argued); Colonel Mark K. Jamison, USMC, Lieutenant 

Timothy C. Ceder, JAGC, USN, and Brian K. Keller, Esq.

(on brief). 

For Appellee: Tami L. Mitchell, Esq. (argued); Lieutenant 

Clifton E. Morgan III, JAGC, USN, and David P. Sheldon, 

Esq. (on brief). 

Amicus Curiae for Appellant: Tiberius Davis (law student), 

Brian Sanders (law student), Michael Zakrajsek (law student), and Sharon R. Fairley, Esq. (supervising attorney) 

(on brief) — the University of Chicago Law School. 

Amicus Curiae for Appellee: Joseph Begun (law student), 

Laura Brodkin (law student), Laura Valentor (law student), 

Judith P. Miller, Esq. (supervising attorney), and Erica 

Zunkel, Esq. (supervising attorney) (on brief) — the University of Chicago Law School. 

Judge MAGGS delivered the opinion of the Court, in 

which Chief Judge STUCKY, and Judges RYAN, 

OHLSON, and SPARKS, joined. 

_______________

Judge MAGGS delivered the opinion of the Court.1

 1 Oral argument in this case was originally scheduled to be 

heard at the University of Chicago Law School in Chicago, Illinois, 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

2 

A general court-martial consisting of officer and enlisted 

members found Appellee guilty, contrary to his pleas, of one 

specification of wrongful use of government property, one 

specification of fraternization, one specification of sexual 

assault, one specification of abusive sexual contact, and one 

specification of adultery in violation of Articles 92, 120, and 

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§§ 892, 920, 934 (2012).2 The court-martial sentenced 

Appellee to eighteen months of confinement and a 

dishonorable discharge. The convening authority approved 

the sentence as adjudged. 

The United States Navy-Marine Corps Court of Criminal 

Appeals (NMCCA) affirmed the finding that Appellee was 

guilty of fraternization. United States v. Armendariz, 79 M.J. 

535, 557 (N-M. Ct. Crim. App. 2019). But the NMCCA set 

aside the other findings and the sentence after determining 

that the military judge had abused his discretion in denying 

a motion to suppress evidence obtained from Appellee’s body, 

property, and workspace. Id. The NMCCA authorized a rehearing on the specifications for which it had set aside the 

findings. Id. Alternatively, the NMCCA authorized either a 

rehearing to determine the sentence for the fraternization 

specification or the approval of a sentence of no punishment. 

 

as part of the Court’s Project Outreach. See United States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). The practice of holding 

arguments at law schools and other locations was developed as part 

of a public awareness program to demonstrate the operation of a 

federal court of appeals and the military justice system. The travel 

restrictions and quarantine due to the COVID-19 pandemic required cancellation of the Project Outreach trip and the case was 

ultimately heard by teleconference several weeks later. In addition 

to our standing gratitude to both sides of the bar in supporting the 

Court on Project Outreach, this Court also commends and thanks 

the University of Chicago Law School faculty, students, and staff, 

who continue to demonstrate an uncommon interest in and commitment to the military justice system, appearing with great clarity, 

credibility, and persuasion on brief. 

2 Before the entry of pleas, the Government withdrew one specification of abusive sexual contact in violation of Article 120, UCMJ. 

The court-martial found Appellee not guilty of one specification of 

sexual assault by bodily harm in violation of Article 120, UCMJ. 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

3 

Id. at 557–58. The NMCCA denied the Government’s motion 

for rehearing. 

The Government then filed a certificate of review, pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2), presenting the following three issues: 

I. Whether the lower court erred in overturning 

the military judge’s admission of evidence where 

the military judge found the official who authorized the search was the acting commander with 

full authority and control over the remain behind element, except for authority to impose 

nonjudicial punishment and convene courtsmartial? 

II. Whether the lower court erroneously applied the 

exclusionary rule under Mil. R. Evid. 311(a)(3) 

by failing to appropriately balance the benefits 

of deterrence against the costs to the justice system, and thereby erred in overturning the military judge’s decision not to apply the exclusionary rule? 

III. Whether the lower court erred in finding the 

good-faith exception did not apply where this 

court has, in United States v. Chapple, 36 M.J. 

410 (C.M.A. 1993), held the exception applies 

even when the individual issuing that search authorization lacked authority under Mil. R. Evid. 

315(d)(1), and here law enforcement reasonably 

believed the acting commander was authorized 

to issue search authorizations? 

We answer the first certified issue in the affirmative and do 

not reach the second and third certified issues. 

I. Background 

A. The Charged Offenses and the Investigation 

Appellee and Sergeant N were assigned to Marine Wing 

Support Squadron 373 (MWSS-373), Marine Air Group 11 

(MAG-11), 3d Marine Air Wing (3d MAW), and were stationed 

at Marine Corps Air Station (MCAS) Miramar, California. On 

the morning of June 25, 2016, they met at their squadron’s 

building and entered Appellee’s private office. Sergeant N testified that Appellee locked the door, turned off the light, 

pushed aside her shorts and underclothing and penetrated 

her vulva with his fingers without her consent. Sergeant N 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

4 

testified that she told Appellee to stop but he removed his 

shorts and underwear and penetrated her vulva with his penis. Sergeant N testified that when she continued to insist 

that he stop, Appellee ceased and dressed himself. Sergeant 

N further testified that Appellee then commented on her 

breasts and also touched her breasts with his hands underneath her shirt without her consent. 

An investigation followed the incident. As part of the investigation, a special agent assigned to the Naval Criminal 

Investigative Service requested several command authorizations for searches and seizures. The special agent presented 

the requests to the squadron’s executive officer, Major Cera 

T. Benbow, whom the special agent thought was the acting 

commander and officer in charge of the members of the squadron in Miramar. Major Benbow authorized searches and seizures leading to the discovery of evidence from Appellee’s cell 

phones and clothing and the recovery of DNA evidence from 

his person. 

B. The Motion to Suppress 

Appellee subsequently moved to suppress this evidence on 

grounds that Major Benbow was not competent to authorize 

searches and seizures under Military Rule of Evidence 

(M.R.E.) 315(d) because she was not the commander of 

MWSS-373. The military judge made the following findings of 

fact relevant to determining Major Benbow’s authority: 

 23. [Lieutenant Colonel (LtCol) Bradley E.] 

Ward took command of MWSS-373 in 2015. 

 24. [Major (Maj)] Benbow has been the Executive Officer of MWSS-373 since 2014.3

 25. In March 2016, LtCol Ward deployed 

with a Forward Deployed Element (FDE) of approximately 300 Marines from MWSS-373. 

 26. When the FDE deployed, Maj Benbow 

was the Officer-in-Charge of the Remain Behind 

Element (RBE) of approximately 175–275 Marines. 

 3 Major Benbow testified that the date was 2015. The discrepancy does not affect this Court’s analysis. 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

5 

 27. Prior to the FDE’s deployment, LtCol 

Ward discussed with the MAG-11 Commanding 

Officer, Colonel (Col) Swann, how the RBE 

would function in LtCol Ward’s absence. 

 28. It was LtCol Ward’s intent that the RBE 

would continue to support MAG-11, 3d MAW 

and MCAS Miramar in his absence. Maj Benbow 

was to have the “full authorities” as commanding 

officer. 

 29. LtCol Ward’s intent was for Maj Benbow 

to make all the decisions normally reserved to 

the commanding officer. 

 30. Major Benbow was responsible for supervising the company commanders of MWSS-373 

and reported directly to the MAG-11 Commanding Officer. 

 31. Maj Benbow would receive tasking from 

higher headquarters and execute the mission 

without having to get approval from LtCol Ward. 

 33. Maj Benbow signed reenlistment packages, awarded certificates of commendation, 

awarded Navy Marine Corps Achievement medals and issued Military Protective Orders as the 

acting commanding officer of MWSS-373. 

 34. LtCol Ward’s intent with regard to the 

scope of Maj Benbow’s authority and how the 

RBE would operate was approved by Col Swann. 

 35. Maj Benbow was also designated in 

writing as the “acting” commanding officer of 

MWSS-373. The terms of the delegation letter 

center around Maj Benbow’s authority to sign 

official correspondence as the acting 

commanding officer. 

 36. There were limits to Maj Benbow’s authority as acting commanding officer. Maj Benbow was not authorized to hold Article 15, 

UCMJ, Nonjudicial Proceedings. Nor did she 

have the authority to convene courts-martial. 

Footnote omitted. 

 The record of trial reveals various additional facts relevant to this appeal. Lieutenant Colonel Ward and other Marines assigned to the FDE deployed to Bahrain, Iraq, Jordan, 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

6 

and Kuwait for a period of six months. During the deployment, they were attached to the Special Purpose Marine AirGround Task Force, Crisis Response-Central Command. 

While deployed, Lieutenant Colonel Ward reported to a senior 

officer outside of the 3D Marine Aircraft Wing. During this 

time, Lieutenant Colonel Ward and Major Benbow believed 

that Lieutenant Colonel Ward remained the official commander of all of MWSS-373. They testified that Lieutenant 

Colonel Ward had granted Major Benbow authority internally within the squadron, and not as a result of the Secretary 

of the Navy delegating her authority. Similarly, they both 

agreed that the FDE and RBE were not separate units within 

MWSS-373. Major Benbow continued to report to Lieutenant 

Colonel Ward and to follow his orders. 

During the deployment, communication between Lieutenant Colonel Ward and Major Benbow was possible but often 

delayed. While Lieutenant Colonel Ward was in Kuwait, he 

had a telephone and access to the internet. But Lieutenant 

Colonel Ward testified that when the RBE received tasking 

orders, the orders would go directly to Major Benbow, and he 

would not learn of them until “a day or two later.” He further 

testified that “every time we went to Iraq . . . it would have 

been very difficult to get in touch with me.” He also testified 

that the difficulty of communication with Major Benbow was 

“why [he] left her in charge” during his absence. 

The military judge denied the motion to suppress the evidence, ruling that Major Benbow was competent to authorize 

the searches and seizures “in her capacity as the acting commanding officer of MWSS-373.” The military judge reasoned 

that “Maj Benbow was more than just the OIC [officer in 

charge], she was the acting commander and tasked with the 

employment of the RBE portion of MWSS-373.” In reaching 

this conclusion, the military judge relied on the facts that Major Benbow “had complete responsibility and authority to receive tasking directly from MAG-11 and employ the companies of the MWSS-373 as she saw fit to meet the mission 

requirements without prior approval from LtCol Ward,” and 

that Major Benbow was “employed in substantially the same 

manner as the other squadron commanders within MAG-11.” 

Although Lieutenant Colonel Ward had withheld authority 

from Major Benbow to convene courts-martial and impose 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

7 

nonjudicial punishment, the military judge reasoned that this 

limitation did not affect her ability to authorize searches under M.R.E. 315. The military judge explained that “the ability 

to convene courts-martial and hold Nonjudicial punishment 

is not the test of whether someone qualifies as a commander.” 

The military judge further reasoned that Lieutenant Colonel 

Ward’s delegation letter “was but one part of the steps taken 

by the chain of command to establish Maj Benbow as not just 

an RBE OIC, but to establish Maj Benbow as a commander.” 

C. Appeal to the NMCCA 

On appeal, the NMCCA disagreed with the military 

judge’s conclusion that Major Benbow was competent to issue 

the search and seizure authorizations. The NMCCA 

emphasized three points. First, Lieutenant Colonel Ward 

continued to be the official commander of MWSS-373 during 

his deployment and in this capacity he actively commanded 

both the FDE and RBE while he was away. 79 M.J. at 544. 

Second, Lieutenant Colonel Ward did not seek or obtain 

official authority to establish an RBE that would function as 

an independent unit. Id. Third, Major Benbow did not fully 

assume command because, among other things, she regularly 

reported to Lieutenant Colonel Ward about the RBE’s 

activities. Id.

Having determined that Major Benbow was not competent 

to authorize the searches and seizures, the NMCCA reasoned 

that the evidence obtained from them should have been 

excluded under the exclusionary rule in M.R.E. 311(a) unless 

some exception applied. Id. at 548. The NMCCA then 

determined that the requirements for the good faith exception 

in M.R.E. 311(c)(3) and for the inevitable discovery exception 

in M.R.E. 311(c)(2) were not met. Id. at 550, 552. The NMCCA 

also concluded that the benefits of deterrence from exclusion 

outweighed the costs to the justice system under the 

balancing test in M.R.E. 311(a)(3). Id. at 555. The NMCCA 

finally determined that the evidence obtained from the 

unauthorized searches prejudiced Appellee with respect to all 

of the specifications except for the fraternization 

specification. Id. at 556–57. 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

8 

II. Discussion 

A. Certified Issue I 

The first certified issue concerns Major Benbow’s competence to authorize the searches and seizures at issue in this 

case. M.R.E. 315(d) provides in pertinent part: “A search authorization under this rule is valid only if issued by an impartial individual in one of the categories set forth in subdivision 

(d)(1) and (d)(2).” Subdivision (d)(1) sets forth this category: 

A commander or other person serving in a position designated by the Secretary concerned as either a position analogous to an officer in charge 

or a position of command, who has control over 

the place where the property or person to be 

searched is situated or found, or, if that place is 

not under military control, having control over 

persons subject to military law or the law of war. 

M.R.E. 315(d)(1).4

Appellee contends that Major Benbow could not authorize, 

under M.R.E. 315(d)(1), the searches and seizures at issue because she was not made the commander or acting commander 

of MWSS-373 by any regulation or valid order. The Government, however, argues that Major Benbow could authorize 

the searches and seizures under M.R.E. 315(d)(1) because 

Lieutenant Colonel Ward’s power to authorize searches as the 

commander of MWSS-373 “devolved” upon Major Benbow.5

This Court reviews a military judge’s “denial of a motion 

to suppress for an abuse of discretion.” United States v. Eppes, 

77 M.J. 339, 344 (C.A.A.F. 2018).6 Based on our precedents, 

 4 M.R.E. 315(d)(2) concerns searches authorized by a military 

judge or magistrate. Neither party contends that subdivision (d)(2) 

is relevant in this case. 

5 The Government does not contend that Lieutenant Colonel 

Ward or any other commander formally detailed Major Benbow to 

serve as the commander of MWSS-373 under Navy regulations. The 

Government also does not contend that MWSS-373 was formally 

divided into two units.

6 We are not persuaded by Appellee’s argument that we are required to review the NMCCA’s decision for an abuse of discretion. 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

9 

we agree with the Government that the military judge did not 

abuse his discretion. 

The leading case on the devolution of a commander’s 

power to authorize searches is United States v. Kalscheuer, 11 

M.J. 373 (C.M.A. 1981). In that case, a deputy base commander authorized a search while the base commander was 

touring base facilities several kilometers away. Id. at 374. 

This Court decided that commanders cannot delegate to subordinates their power to authorize searches. Id. at 376–77. 

The Court reasoned: 

[T]here is a serious Fourth Amendment problem 

with the reasonableness of a search authorized by a 

person purporting to act under a commander’s delegation—especially when almost no standards have 

been provided for such delegation. Moreover, the existence of this problem suggests that, absent the 

most persuasive evidence of legislative intent to the 

contrary, the Uniform Code should not be interpreted to allow such delegation. 

Id. at 376. But the Court recognized that such authority could 

devolve upon subordinates when the commander is absent. 

The Court explained: 

[J]ust as other duties devolve upon a deputy commander . . . when, for some reason, a commander is 

unavailable, so, too, the responsibility to act on a request for search should in such a situation be viewed 

as devolving on the subordinate who exercises command when the commander is absent. 

Id. at 378–79. 

 

When reviewing a decision of a Court of Criminal 

Appeals on a military judge’s ruling, [this Court] 

typically ha[s] pierced through that intermediate 

level and examined the military judge’s ruling, then 

decided whether the Court of Criminal Appeals was 

right or wrong in its examination of the military 

judge’s ruling. 

United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F. 2015) (internal quotation marks omitted) (quoting United States v. CabreraFrattini, 65 M.J. 241, 246 (C.A.A.F. 2007)).
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

10 

Applying these principles, the Court in Kalscheuer reasoned that a devolution of power had occurred based on several facts. One fact was that the commander had left his portable radio, a “symbol of authority,” with the deputy 

commander. Id. at 379. Another fact was that the deputy commander rather than the commander, “[a]t that time and place 

. . . was the person making command decisions.” Id. A third 

fact was that “under the prevailing circumstances, [the deputy commander] was the officer whom foreseeably an investigator . . . would have approached to obtain a search authorization.” Id. 

The Court in Kalscheuer notably recognized that then-existing Air Force regulations provided for the devolution of 

command under certain circumstances. Id. at 380. But the 

Court did not consider those regulations to provide the exclusive means by which devolution of power could occur. Id. The 

Court explained: “[W]e are chiefly concerned with the functional aspects of command. Thus, we need not examine the 

minutiae of Service directives which concern devolution of 

command.” Id.

This Court followed Kalscheuer in United States v. Law,

17 M.J. 229 (C.M.A. 1984). In Law, the Court held that a commander’s power to authorize a search had devolved upon his 

executive officer when the commander was out of communication while attending a play rehearsal at a location where 

there was no telephone. Id. at 234. The commander in Law

had attempted to delegate search authority to the executive 

officer, contrary to the decision in Kalscheuer that such authority cannot be delegated. Id. at 240. This Court nonetheless upheld the search, explaining: 

We need not . . . concern ourselves with the validity 

of the delegation, because, at the time of the search, 

[the executive officer] was exercising command authority over the unit. [The company commander] 

was some 27 or 28 kilometers away at a place where 

he could not be reached by phone. Thus, he was at 

least as unavailable as was the commander in 

Kalscheuer, so as acting commander—even without 

any express delegation—[the executive officer] was 

empowered to authorize the search. 

Id. at 240–41. 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

11 

Taken together, Kalscheuer and Law stand for the proposition that the power to authorize a search may devolve from 

a commander upon a subordinate even if a specific regulation 

does not provide for the devolution.7 Whether a devolution occurs depends on a functional analysis. The question is 

whether the subordinate is in fact functioning as a commander while the commander is absent from the command. 

As the above descriptions show, in deciding whether a devolution occurred in Kalscheuer and Law, this Court considered 

several relevant facts: (1) the location of the commander; (2) 

the accessibility of the commander; (3) whether the commander contemplated a devolution of authority; (4) whether 

the deputy was exercising command functions; and (5) how 

others within the unit understood the role and authority of 

the deputy.

In this case, facts similar to those present in Kalscheuer

and Law lead us to conclude that Lieutenant Colonel Ward’s 

power to authorize searches devolved upon Major Benbow at 

the time and place the search authorizations were requested. 

First, Lieutenant Colonel Ward not only was absent from the 

Marines in MWSS-373 who remained at MCAS Miramar 

while he was deployed in Bahrain, Iraq, Jordan, and Kuwait, 

but also was much farther away and was gone for a longer 

time than the commanders in Kalscheuer and Law. Second, 

communication between Lieutenant Colonel Ward and Major 

Benbow was possible (except perhaps when Lieutenant 

Colonel Ward was traveling in Iraq) but it was usually 

delayed by a “day or two,” much longer than the delay caused 

by the commander’s attendance of a play rehearsal in Law. 

Third, Lieutenant Colonel Ward intended that Major Benbow 

would exercise command authority, providing written 

directives that she was “to have the ‘full authorities’ as 

commanding officer,” according to the findings of the military 

judge. Fourth, Major Benbow in fact exercised command 

functions. As the military judge found, Major Benbow 

 7 In addition to Kalscheuer and Law, several earlier precedents 

also concerned the devolution of a commander’s powers. See United 

States v. Bunting, 4 C.M.A. 84, 15 C.M.R. 84 (1954); United States 

v. Williams, 6 C.M.A. 243, 19 C.M.R. 369 (1955); United States v. 

Murray, 12 C.M.A. 434, 31 C.M.R. 20 (1961); United States v. Kugima, 16 C.M.A. 183, 36 C.M.R. 339 (1966).
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

12 

supervised “the company commanders of MWSS-373 and 

reported directly to the MAG–11 Commanding Officer,” and 

she also “signed reenlistment packages, awarded certificates 

of commendation, awarded Navy [and] Marine Corps 

Achievement medals and issued Military Protective Orders as 

the acting commanding officer of MWSS-373.” In addition, 

Major Benbow carried out tasking orders to MWSS-337 and 

only informed Lieutenant Colonel Ward about them after the 

fact. Finally, the investigators understood that they should 

seek search authorizations from Major Benbow, whose 

signature block on the search authorizations bore the title of 

“Acting Commander” or similar variations. 

Appellee does not substantially dispute the foregoing 

similarities between this case and the Kalscheuer and Law

precedents. But Appellee contends that the devolution of 

power still could not occur in this case for four principal 

reasons. First, Appellee argues that devolution could not have 

occurred because Major Benbow did not have complete 

authority over military justice while Lieutenant Colonel 

Ward was absent. As the military judge found, Lieutenant 

Colonel Ward did not permit Major Benbow to convene courtsmartial or impose nonjudicial punishment. According to 

Appellee, a devolution of command is “all-or-nothing.” 

Appellee maintains that if an officer succeeding command 

does not possess all of the authorities held by his or her 

predecessor, then the officer is not a “commander” by 

devolution. For this proposition, Appellee relies on Bunting, 4 

C.M.A. at 87–90, 15 C.M.R. at 87–90. 

We are not persuaded by this argument. Our precedents 

have not required a complete devolution of command 

authority. Indeed, we agree with the Government’s position 

that Bunting actually shows the opposite of what Appellee 

asserts.8 In Bunting, while the Commander Naval Forces, Far 

 8 During oral argument, counsel for the Government asserted 

that Lieutenant Colonel Ward may have been mistaken in believing 

that he could limit the devolution of authority to convene courtsmartial. The Government pointed to Dep’t of the Navy, Article 

1026.1, United States Navy Regulations, Precedence, Authority 

and Command ch. 10, § 2 (Sept. 14, 1990) [hereinafter Article 

1026.1], which provides that an officer who succeeds to command 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

13 

East, was absent from his command, his chief of staff served 

as the acting commander for “ ‘practically all administrative 

matters’ ” but not for operational matters. Id. at 86, 15 C.M.R. 

at 86. We nonetheless concluded that the chief of staff had 

authority to convene a court-martial. Id. at 89, 15 C.M.R. at 

89. This Court did not consider the chief of staff’s lack of 

power over operational matters or some administrative 

matters to preclude this authority. See also Kugima, 16 

C.M.A. 187, 36 C.M.R. at 343 (citing Bunting for the 

proposition that command can devolve on a subordinate even 

if the actual commander retains some operational functions). 

In addition, we note that in Kalscheuer and Law, this Court 

addressed only the question whether power to authorize 

searches had devolved and did not consider whether other 

powers also devolved. 

Second, Appellee argues that a devolution of power to issue search authorizations could not occur in this case because 

the conditions for devolution under applicable regulations 

were not satisfied. Appellee points to a U.S. Navy Regulation, 

Article 1026.1, which provides: “An officer who succeeds to 

command due to incapacity, death, departure on leave, detachment without relief or absence due to orders from competent authority of the officer detailed to command, has the 

same authority and responsibility as the officer whom he or 

she succeeds.” Appellee contends that Lieutenant Colonel 

Ward was not incapacitated, dead, on leave, or detached. In 

addition, although Lieutenant Colonel Ward was deployed, 

Appellee argues that he was not “absent” from his command 

because the majority of MWSS-373 was deployed with him. 

Appellee concludes that this regulation therefore precludes 

the devolution of the power to authorize searches. We disagree with this argument. Article 1026.1 identifies certain circumstances in which devolution of command automatically 

occurs. But as in Kalscheuer, we do not believe that the regu-

 

because of the “absence . . . of the officer detailed to command” 

possesses the “same authority and responsibility as the officer 

whom he or she succeeds.” We need not decide this point because 

Major Benbow did not attempt to convene a court-martial in this 

case and our precedents have not required a complete devolution of 

authority.
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

14 

lation precludes devolution from occurring in other circumstances. Accordingly, we conclude that the devolution still occurred under the facts as explained above. 

 Third, Appellee argues that devolution could not occur because Major Benbow never exercised authority over the entire 

MWSS-373. Appellee asserts that even if Lieutenant Colonel 

Ward temporarily allowed Major Benbow to exercise some authority over the Marines in the RBE, Lieutenant Colonel 

Ward was always in complete command of the Marines in the 

FDE. Appellee also emphasizes that Lieutenant Colonel 

Ward at points directed some actions of Major Benbow over 

the RBE. 

We agree that a unit cannot have two commanders exercising the same functions simultaneously. See Kugima, 16 

C.M.A. at 187, 36 C.M.R. at 343. But command authority can 

devolve temporarily upon a subordinate during periods when, 

and in locations where, the detailed commander is unavailable. In Kalscheuer, we emphasized that the executive officer 

was the officer who was exercising command “[a]t that time 

and place” the search authorization was requested, and he 

was the officer from whom investigators understood that they 

should seek a search authorization. 11 M.J. at 379. That is 

precisely the situation in the present case. At the time when 

the investigating agents sought their search authorizations, 

Major Benbow was the officer exercising the functions of command at MCAS Miramar, and the investigators at MCAS 

Miramar understood that they were to ask her for the authorizations. The possibility that Lieutenant Colonel Ward at 

points may have directed some actions of Major Benbow over 

the RBE does not change this fact. See Bunting, 4 C.M.A. at 

90, 15 C.M.R. at 90 (noting that “[a]t such times as [the commander] returned to his headquarters, he necessarily resumed command”). 

Fourth, Appellee argues that Kalscheuer is distinguishable because the commander in that case could not communicate with his deputy but in this case Major Benbow could and 

regularly did contact Lieutenant Colonel Ward while he was 

deployed. This distinction is not convincing. In Kalscheuer, 

this Court did not rest on grounds that the deputy base commander could not communicate with the base commander. On 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

15 

the contrary, although the Court noted that the base commander had left his portable radio with the deputy commander, the Court observed that the base commander was accompanying a senior officer who had a radio. 11 M.J. at 374. 

In addition, Appellee does not sufficiently consider the practical limitations on Major Benbow’s ability to communicate 

with Lieutenant Colonel Ward. While Major Benbow could 

contact Lieutenant Colonel Ward, the communication was often delayed by “a day or two” and may not have been possible 

while Lieutenant Colonel Ward was in Iraq.9 These limitations are greater than those in Kalscheuer and Law, where 

the commanders were only temporarily out of touch while 

touring base facilities or attending a play rehearsal. Finally, 

the mere possibility of communication does not prevent the 

devolution of power. In Bunting, the chief of staff could communicate with the commander, who was often present at the 

command, but the ability to communicate was not enough to 

prevent devolution of the commander’s powers because the 

commander was too busy with other duties to address administrative matters. See 4 C.M.A. at 88, 15 C.M.R. at 88. 

In addition to these four arguments, we note that the 

NMCCA distinguished Kalscheuer and Law on the grounds 

that Lieutenant Colonel Ward’s absence from MCAS 

Miramar was preplanned while the absences in Kalscheuer

and Law were temporary. 79 M.J. at 547. We agree with the 

Amicus Curiae in support of the Government that this distinction does not prevent the devolution of the power to authorize searches and seizures. In Kalscheuer and Law, this 

Court did not focus on the reason for the commander’s absence. The Court stressed instead the fact of the commander’s 

absence and the other facts concerning the deputy’s exercise 

of command. 

For all of these reasons, we conclude that this case is indistinguishable from Kalscheuer and Law. Major Benbow was 

competent to issue the search and seizure authorizations in 

 9 Indeed, although Lieutenant Colonel Ward testified that 

around the time of the initial search authorization, he was likely in 

Kuwait—where he had phone and internet access—he could not recall the exact dates he was there. 
United States v. Armendariz, No. 19-0437/MC 

Opinion of the Court 

16 

this case because the power to do so devolved upon her. Certified issue I is answered in the affirmative. 

B. Certified Issues II and III 

Because we have determined that Major Benbow was competent to authorize the searches and seizures in this case, the 

exclusionary rule in M.R.E. 311(a) does not apply. Accordingly, we need not address certified issue II, which concerns 

the balancing test in M.R.E. 311(a)(3). We also need not address certified issue III, which concerns the good faith exception to the exclusionary rule in M.R.E. 311(c)(3). 

III. Conclusion

Although we uphold the search authorizations in this 

case, we conclude by observing that much of the uncertainty 

and litigation over the searches and seizures was avoidable. 

When commanders know that they will be absent for 

foreseeable, long-term periods, they can avoid legal 

controversies regarding authority over military justice 

matters by taking the formal steps required by service 

regulations to ensure clarity regarding this authority. They 

need not rely on the possibility of the implied devolution of 

their powers upon a subordinate officer. 

The decision of the United States Navy-Marine Corps 

Court of Criminal Appeals is affirmed as to the Specification 

of Additional Charge I for fraternization. It is reversed as to 

setting aside the remaining findings and reversed as to 

setting aside the sentence. The record is returned to the 

Judge Advocate General of the Navy for remand to the 

NMCCA for further review under Article 66, UCMJ, 10 U.S.C. 

§ 866 (2018).