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Searches and Seizures in the Military Justice System

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The Fourth Amendment protects against unreasonable searches and seizues in the Military.

The Fourth Amendment protects against unreasonable searches and seizures and requires warrants to be supported by probable cause. Although there is debate about 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.

“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.”

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The Fourth Amendment applies to soldiers.

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Search Authorization and Probable Cause

A search is valid if based upon probable cause and a proper search warrant. Probable cause is evaluated by looking at the “totality of the circumstances” to determine whether evidence is located at a particular place. The equivalent to a search warrant in the Military is called a search authorization and may be issued by an appropriate neutral and detached commander, military judge, or military magistrate.

However, even if a search is based upon probable cause and is conducted under a proper search warrant/ authorization, it must be completed in a reasonable manner. A search is proper if conducted under a search warrant or authorization based on probable cause. Mil. R. Evid. 315.

A search warrant is issued by a civilian judge; it must be in writing, under oath, and based on probable cause. A search authorization is granted by a military commander; it may be oral or written, need not be under oath, but must be based on probable cause.

Probable Cause.

Probable cause is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched. Mil. R. Evid. 315(f). It is a “fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1982).

Probable cause is evaluated under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213 (1982).

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Probable cause will exist only if information establishes that evidence is currently in the area to be searched. P.C. may evaporate over time. Any commander of the person or place to be searched (“king-of-the-turf” standard).

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.

The installation commander can authorize searches of:

  1. All of the above.

Installation areas such as:

  1. On-post quarters;
  2. Post Exchange (PX); and,
  3. On-post recreation centers.

Delegation prohibited.

Power to authorize searches is a function of command and may not be delegated to an executive officer. Devolution authorized. An “acting commander” may authorize a search when the commander is absent. More than one commander may have control over the area to be searched.

Military magistrate or military judge may authorize searches

A military magistrate or military judge may authorize searches of all areas where a commander may authorize searches. 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.

Neutral and Detached Requirement.

The official issuing a search authorization must be neutral and detached. See Mil. R. Evid. 315(d).

A commander is not neutral and detached when he or she:

  1. Initiates or orchestrates the investigation (has personal involvement with informants, dogs, and controlled buys); or,
  2. Conducts the search.

A commander may be neutral and detached even though he or she:

  1. Is present at the search;
  2. Has personal knowledge of the suspect’s reputation;
  3. Makes public comments about crime in his or her command; or,
  4. Is aware of an ongoing investigation.

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

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


Even if based upon a warrant or authorization and probable cause, a search must be conducted in a reasonable manner.

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Seizure of Property.

Probable cause to seize.

Probable cause to seize property or evidence exists when there is a reasonable belief that the property or evidence is an unlawful weapon, contraband, evidence of a crime, or might be used to resist apprehension or to escape. Mil. R. Evid. 316(b).

Effects of unlawful seizure.

If there is no probable cause, the seizure is illegal, and the evidence seized is suppressed under Mil. R. Evid. 311.

External Impoundment.

Reasonable to secure a room (“freeze the scene”) pending an authorized search to prevent the removal or destruction of evidence. Freezing the scene does not mean that investigators have unrestricted authorization to search crime scenes without a proper warrant/authorization.

Seizure (Apprehension) of Persons.

Probable cause to apprehend.

Probable cause to apprehend exists when there are reasonable grounds to believe that an offense has been or is being committed and the person to be apprehended committed or is committing it. RCM 302(c). See also Mil. R. Evid. 316(c).

Effects of unlawful apprehension.

If there is no probable cause, the apprehension is illegal, and evidence obtained due to the apprehension is suppressed under Mil. R. Evid. 311.

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Situations amounting to apprehension.

There is a seizure or apprehension of a person when a reasonable person, given all the circumstances, would not believe he or she was free to leave. In “cramped” settings (e.g., on a bus, in a room), there is an apprehension when a reasonable person, given all the circumstances, would not feel “free to decline to answer questions.”

Armed Texas police rousting a 17-year old murder suspect from his bed at 0300, transporting him handcuffed, barefoot, and in his underwear to the police station was an apprehension, despite the suspect’s answer of “Okay,” in response to police saying “We have to talk.”

Asking for identification is not an apprehension.

Asking for identification and consent to search on a bus is not apprehension. The State may prosecute for failure to answer if the ‘stop and I.D.’ statute is properly drawn. Thus, there was no Fourth Amendment violation.

A police chase is not an apprehension.

Traffic Stops – When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop’s constitutionality.

An order to report to military police

An order to report for non-custodial questioning is not apprehension. An order to report for fingerprints is not apprehension.

Transporting an accused to the military police station under guard is apprehension.

Therefore, when the accused is ordered to go to the military police station under guard, probable cause must exist, or subsequent voluntary confession is inadmissible.

Apprehension at home or in quarters:

A military magistrate, military judge, or the commander who controls that dwelling (usually the installation commander) must authorize apprehension in a private dwelling. R.C.M. 302(e); Payton v. New York, 445 U.S. 573 (1980).

A private dwelling includes:

  1. BOQ/BEQ rooms;
  2. Guest quarters;
  3. On-post quarters; or,
  4. Off-post apartment or house.

A private dwelling does not include:

  1. Tents.
  2. Barracks rooms.
  3. Vehicles.

Exigent circumstances may justify entering a dwelling without a warrant or authorization.

See Mil. R. Evid. 315(g). The accused was apprehended correctly, without authorization, in transient billets. Exigent circumstances justified apprehension. See also Kirk v. Louisiana, 536 U.S. 635 (2002) (absent exigent circumstances, police may not enter a private dwelling without a warrant supported by probable cause to search the premises or apprehend an individual).

Consent may justify entering a dwelling without a proper warrant or authorization.

See Mil. R. Evid. 316(d)(2). Accused, awakened by military police at on-post quarters, in his underwear, and escorted to the police station was not illegally apprehended, despite lack of proper authorization. His wife “consented” to police entry.

Probable cause may cure lack of proper authorization.

New York v. Harris, 495 U.S. 14 (1990). Where police had probable cause but did not get a warrant before arresting the accused at home, the statement accused made at home was suppressed as a violation of Payton v. New York. Still, the statement made at the police station was held to be admissible. This is because the statement at the police station was not the “fruit” of the illegal arrest at home.

Exigent circumstances

Exigent circumstances may also allow the warrantless seizure of dwelling and/or occupants while waiting for a search warrant to be issued. Illinois v. McArthur, 531 U.S. 326 (2001).

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