Gonzalez & Waddington – Attorneys at Law

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A soldier’s reasonable expectation of privacy must be balanced against:

  1. National security;
  2. Military necessity (commander’s inherent authority to ensure the safety, security, fitness for duty, good order and discipline of his command);
  3. Effective law enforcement

Military Rules of Evidence that codify Fourth Amendment principles:

  1. Military Rule of Evidence 311, Evidence Obtained From Unlawful Searches and Seizures.
  2. Military Rule of Evidence 312, Body Views and Intrusions.
  3. Military Rule of Evidence 313, Inspections and Inventories in the Armed Forces.
  4. Military Rule of Evidence 314, Searches Not Requiring Probable Cause.
  5. Military Rule of Evidence 315, Probable Cause Searches.
  6. Military Rule of Evidence 316, Seizures.
  7. Military Rule of Evidence 317, Interception of Wire and Oral

For the Fourth Amendment to apply there must be a search/seizure by a U.S. government official/agent. Furthermore, the person claiming protection must have a “reasonable expectation of privacy” in the thing/area searched or item seized. Determining what is a “reasonable expectation of privacy” is done on a case-by-case basis utilizing the test set forth in Katz v. United States, which states that a person claiming an expectation of privacy must show that 1) he actually believed he had such an expectation, and 2) society views the expectation as objectively reasonable.

Nongovernment Searches.

The Fourth Amendment does not apply unless there is a governmental invasion of privacy. Rakas v. Illinois, 439 U.S. 128, 140-49 (1978).

Private searches are not covered by the Fourth Amendment.

Searches by persons unrelated to the government are not covered by the Fourth Amendment.

No government search occurred where Federal Express employees opened damaged package. United Parcel Service employee opened package addressed to accused as part of random inspection. Held: this was not a government search. Searches by government officials not acting in official capacity are not covered by the Fourth Amendment. Search by military policeman acting in non-law enforcement role is not covered by the Fourth Amendment. Whether a private actor serves as an agent of the gov’t hinges not on the motivation of the individual, but on the degree of the government’s participation/involvement.

Searches by informants are covered by the Fourth Amendment. Soldier “checked” accused’s canvas bag and found drugs after commander asked soldier to keep his “eyes open.” Held: this was not a government search because soldier was not acting as agent of the commander. Searches by AAFES detectives are covered by Fourth Amendment. Fourth Amendment extends to searches by AAFES store detectives; Baker overruled earlier case law that likened AAFES personnel to private security guards.

Foreign searches are not covered by Fourth Amendment.

Searches by U.S. agents abroad.

Fourth Amendment does not apply to search by U.S. agents of foreigner’s property located in a foreign country.

Searches by foreign officials.

The Fourth Amendment is inapplicable to searches by foreign officials unless U.S. agents “participated in” the search. Mil. R. Evid. 311(c) and 315(h)(3).

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“Participation” by U.S. agents does not include:

    • Mere presence.
    • Acting as interpreter.

Fourth Amendment did not apply to German search of off-post apartment, even though military police provided German police with information that led to search. Military police officer participated in Panamanian search by driving accused to Army hospital, requesting blood alcohol test, signing required forms and assisting in administering test. A search by foreign officials is unlawful if the accused was subjected to “gross and brutal maltreatment.” Mil. R. Evid. 311(c)(3).

No Reasonable Expectation of Privacy.

The Fourth Amendment only applies if there is a reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347 (1967) (holding that the Fourth Amendment protects people, not places).

For the expectation of privacy to be reasonable:

  1. The person must have an actual subjective expectation of privacy; and,
  2. Society must recognize the expectation as objectively reasonable.

Public view or open view.

“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967).

Abandoned property. Mil. R. Evid. 316(d)(1).

Garbage – There was no expectation of privacy in sealed trash bags left for collection at curbside.

Clearing quarters – There was no reasonable expectation of privacy in blood stains found in quarters accused was clearing when accused removed majority of belongings, lived elsewhere, surrendered keys to cleaning team, and took no action to protect remnants left behind.

Military Sexual Assault Defenses: Mistake of Fact Explained

Voluntarily abandoned property – An accused has no privacy interest in voluntarily abandoning his property prior to a search, and subsequently lacks standing to complain of the search or seizure of such property.

Lost computer – A government interest in safeguarding property outweighs reduced expectation of privacy in laptop computer left in restroom by a student at an entry-level school.

Aerial observation – Observation of a fenced-in marijuana plot from an airplane was not a search. Observation of a fenced-in marijuana greenhouse from a hovering helicopter was not a search.

Peering into Automobiles – Peering into an open door or through a window of an automobile is not a search. If the car is stopped by a law enforcement official and then peered into, the investigative stop must be lawful.

The “passerby” – Peeking through a 1/8 inch by 3/8 inch crack in the venetian blinds from a walkway was not a search. Security police’s view through eight to ten inch gap in curtains in back patio door was unlawful search because patio was not open to public.

Private dwellings – Cocaine distributors were utilizing another person’s apartment to bag cocaine. The distributors were in the apartment for two and a half hours and had no other purpose there than to bag the cocaine. Supreme Court held that even though the drug distributors were in private residence at consent of owner, they had no expectation of privacy in the apartment, and police discovery of their activity was not a Fourth Amendment search.


The Department of Justice has promulgated a manual on computers and criminal investigations.

Accused had reasonable expectation of privacy in electronic mail transmissions sent, received and stored on the AOL computer server. Like a letter or phone conversation, a person sending e-mail enjoys a reasonable expectation of privacy that police will not intercept the transmission without probable cause and a warrant.

Accused did not have a reasonable expectation of privacy in e-mail mailbox on government server which was the e-mail host for all “personal” mailboxes and where users were notified that system was subject to monitoring.

There is no reasonable expectation of privacy in subscriber information provided to a commercial internet service provider.

No warrant/authorization required for stored transactional records (distinguished from private communications). Inevitable discovery exception also applied to information sought by government investigators.

Reasonable expectation of privacy found in e-mail communications regarding drug use on a government computer, over a government network, when investigation was conducted and ordered by law enforcement instead of originating with computer network administrator. (This is a narrow holding as USMC log-on banner described access to “monitor” the computer system –not to engage in law enforcement intrusions by examining the contents of particular e-mails in a manner unrelated to maintenance of the e-mail system).

Accused had no Fourth Amendment expectation of privacy in his government computer (distinguishing Long based on facts of case). He failed to rebut presumption that he had no reasonable expectation of privacy in the government computer provided to him for official use. See Mil. R. Evid. 314(d).

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