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Overview of topics relation to search and seizure


The Fourth Amendment protects against unreasonable searches and seizures and requires warrants to be supported by probable cause. Although there is debate as to whether it applies to military members, military courts act as if it does. The Fourth Amendment, its requirements, and exceptions, are codified in military rules of evidence 311-317.

Text: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Overview of neutral and detached requirement:

The official issuing a search authorization must be neutral and detached. See Mil. R. Evid. 315(d). See also United States v. Ezell , 6 M.J. 307 (C.M.A. 1979) (discusses four separate cases where commanders’ neutrality was attacked).

A commander is not neutral and detached when he or she: Initiates or orchestrates the investigation (has personal involvement with informants, dogs, and controlled buys); or, Conducts the search.

A commander may be neutral and detached even though he or she: Is present at the search; Has personal knowledge of the suspect’s reputation; Makes public comments about crime in his or her command; or, Is aware of an on-going investigation.

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“The participation of a commander in investigative activities in furtherance of command responsibilities, without more, does not require a per se disqualification of a commander from authorizing a search under M.R.E. 315.” See U.S. v. Huntzinger , 69 M.J. 1, 6 (C.A.A.F. 2010).

Alternatives: Avoid any potential “neutral and detached” problems by seeking search authorization from:

    1. A military magistrate; or,
    2. The next higher commander.

Guide to articulating probable cause

Probable cause to authorize a search exists if there is a reasonable belief ,based on facts , that the person or evidence sought is at the place to be searched. Reasonable belief is more than mere suspicion. Witness or source should be asked three questions:

What is where and when? Get the facts!

    1. Be specific: how much, size, color, etc.
    2. Is it still there (or is information stale)?
    3. If the witness saw a joint in barracks room two weeks ago, it is probably gone; the information is stale.
    4. If the witness saw a large quantity of marijuana in barracks room one day ago, probably some is still there; the information is not stale.

How do you know? Which of these apply?

    1. “I saw it there.” Such personal observation is extremely reliable.
    2. “He [the suspect] told me.” Such an admission is reliable.
    3. “His [the suspect’s] roommate/wife/ friend told me.” This is hearsay. Get details and call in source if possible.
    4. “I heard it in the barracks.” Such rumor is unreliable unless there are specific corroborating and verifying details.

Why should I believe you? Which of these apply?

    1. Witness is a good, honest soldier; you know him from personal knowledge or by reputation or opinion of chain of command.
    2. Witness has given reliable information before; he has a good track record (CID may have records).
    3. Witness has no reason to lie.
    4. Witness has truthful demeanor.
    5. Witness made statement under oath. (“Do you swear or affirm that any information you give is true to the best of your knowledge, so help you God?”)
    6. Other information corroborates or verifies details.
    7. Witness made admission against own interests.
    8. The determination that probable cause exists must be based on facts, not only on the conclusion of others.
    9. The determination should be a common sense appraisal of the totality of all the facts and circumstances presented.

Persons Who Can Authorize a Search. Mil. R. Evid. 315(d)

Overview of persons who can authorize a search. Mil. R. Evid. 315(d):

Militarydefenselawyers307 300X250 1 Gonzalez &Amp; Waddington - Attorneys At LawAny commander of the person or place to be searched (“king-of-the-turf” standard).

    1. The unit commander can authorize searches of: (1) Barracks under his control; (2) Vehicles within the unit area; and (3) Off-post quarters of soldiers in the unit if the unit is overseas.
    2. The installation commander can authorize searches of: (1) All of the above; (2) Installation areas such as: (a) On-post quarters; (b) Post Exchange (PX); and, (c) On-post recreation centers.
    3. Delegation prohibited. Power to authorize searches is a function of command and may not be delegated to an executive officer. United States v. Kalscheur, 11 M.J. 378 (C.M.A. 1981)
    4. Devolution authorized. United States v. Law, 17 M.J. 229 (C.M.A. 1983). An “acting commander” may authorize a search when commander is absent. See also United States v. Hall, 50 M.J. 247 (C.A.A.F. 1999). Commander may resume command at his discretion; no need not have written revocation of appointment of acting commander.
    5. More than one commander may have control over the area to be searched. United States v. Mix, 35 M.J. 283 (C.M.A. 1992). Three commanders whose battalions used common dining facility each had sufficient control over the parking lot surrounding facility to authorize search there.

A military magistrate or military judge may authorize searches of all areas where a commander may authorize searches. See chapter 8, AR 27-10, Military Justice (3 Oct 2011), for information on the military magistrate program.

In the United States a state civilian judge may issue search warrants for off-post areas.

In the United States a federal civilian magistrate or judge may issue search warrants for:

    1. Off-post areas for evidence related to federal crimes; and,
    2. On-post areas.

Overseas a civilian judge may authorize a search of off-post areas.


Overview of reasonableness:

Militarydefenselawyers305 300X250 1 Gonzalez &Amp; Waddington - Attorneys At LawEven if based upon a warrant or authorization and probable cause, search must be conducted in a reasonable manner.

  1. Wilson v. Arkansas , 514 U.S. 927 (1995). The common law requirement that police officers “knock and announce” their presence is part of the reasonableness clause of the Fourth Amendment.
  2. United States v. Banks , 540 U.S. 31 (2003). In a case involving easily disposable illegal drugs, police were justified in breaking through an apartment door after waiting 15-20 seconds following knocking and announcing their presence. This time was sufficient for the situation to ripen into an exigency.
  3. Richards v. Wisconsin , 520 U.S. 385 (1997). Every no-knock warrant request by police must be evaluated on a case-by-case basis. Test for no-knock warrant is whether there is reasonable suspicion that evidence will be destroyed or there is danger to police by knocking.
    United States v. Ramirez , 523 U.S. 65 (1998). Whether or not property is damaged during warrant execution, the same test applies — reasonable suspicion.
  4. Hudson v. Michigan , 547 U.S. 586 (2006). Violation of the Fourth Amendment “knock and announce” rule, without more, will not result in suppression of evidence at trial.
  5. Depending on the circumstances, law enforcement officials may “seize” and handcuff occupants of a residence while they execute a search warrant of that residence. Muehler v. Mena , 544 U.S. 93, 125 S.Ct. 1465 (2005).
  6. L.A. County v. Rettele, 127 S.Ct. 1989 (2007). When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.
  7. United States v. Osorio , 66 M.J. 632 (A.F. Ct. Crim. App. 2008). Forensic examination of a computer based on a search warrant must not exceed the scope of the warrant. Examiners must carefully analyze the terms of the warrant and adjust their examination methodology accordingly. Inevitable discovery did not apply to facts of this case.
  8. Reasonableness and Media “Ride-Alongs.” Violation of Fourth Amendment rights of homeowners for police to bring members of media or other third parties into homes during execution of warrants.
    Wilson v. Layne, 526 U.S. 603 (1999).

Exceptions to authorization requirement

Explanation of exceptions to authorization requirement:

Not all searches require warrants or search authorizations, if there is probable cause that evidence is at a certain location. If there is probable cause that evidence will be destroyed, a law enforcement official may dispense with the warrant/authorization requirement. Searches of automobiles generally do not require warrants/authorizations.

Border Searches

Border SearchesCustoms inspections.

Customs inspections are constitutional border searches.
United States v.Ramsey , 431 U.S. 606 (1977) (finding a longstanding right of sovereign to protect itself).

Customs inspections in the military.

Border searches for customs or immigration purposes may be conducted when authorized by Congress. Mil. R. Evid. 314(b); United States v. Williamson , 28 M.J. 511 (A.C.M.R. 1989). Military police customs inspector’s warrantless search of household goods was reasonable since inspection was conducted pursuant to DOD Customs Regulations.

Gate searches overseas.

General rule. Installation commanders overseas may authorize searches of persons and property entering and exiting the installation to ensure security, military fitness, good order and discipline. Mil. R. Evid. 314(c). (1) Primary purpose test is applicable. (2) Subterfuge rule is inapplicable. United States v. Stringer, 37 M.J. 310 (C.M.A. 1993). Gate searches overseas are border searches; they need not be based on written authorization and broad discretion can be given to officials conducting the search.

Exceptions to Probable Cause Requirement

Overview of exceptions to probable cause requirement:

Many searches require neither probable cause nor a search warrant/authorization. If a person voluntarily consents to a search, no probable cause or warrant is needed. Searches incident to apprehension/arrest need no other probable cause than the underlying PC for the arrest/apprehension.

Certain brief detentions–called “stops”– require only “reasonable suspicion,” and pat-down searches–called “frisks”–require only reasonable suspicion that the person is armed and dangerous. Inspections are technically not searches at all, but are rather administrative in nature, not criminal searches for evidence. A variety of inspections are not affected by Fourth Amendment requirements. Finally, emergency searches are also not affected by Fourth Amendment requirements

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