Yes, evidence obtained from what the defense believes was an unlawful search can and should be challenged during an Article 32 preliminary hearing. While the Preliminary Hearing Officer (PHO) does not have the authority to grant a formal motion to suppress evidence, raising the issue at this stage is a critical step in building a defense and preserving the issue for trial.
The defense challenge is made by objecting to the admission of the evidence and by cross-examining the law enforcement agents who conducted the search. Through questioning, the defense can create a detailed record regarding the circumstances of the search: whether there was a warrant, whether consent was properly obtained, or whether the search exceeded the scope of any given authority. This testimony, captured in the hearing transcript, can be invaluable later.
The PHO is required to consider the lawfulness of a search when assessing the evidence for their probable cause determination. If the PHO believes the evidence was likely obtained illegally, they can choose to give it little to no weight when making their findings. They can also note the potential Fourth Amendment violation in their final report to the convening authority, which might influence the commander’s decision on how to proceed with the case.
Ultimately, the definitive ruling on the admissibility of the evidence at trial rests with the military judge. By challenging the search at the Article 32 hearing, the defense lays the groundwork for a formal, written motion to suppress that will be filed after referral. The hearing serves as a discovery tool to gather the facts needed to successfully litigate that motion before the trial begins, making it a crucial first step in challenging illegally seized evidence.