CHAPTER 3 SEARCH AND SEIZURE

What is a search? What are the rights of an individual being searched? What procedures must be followed in requesting and conducting a search? What are the different types of searches?

As an MA, you will undoubtedly be involved in conducting searches. Therefore, you must familiarize yourself with the procedures in conducting a search, preparation of the associated paper work, and the rights of the individual being searched. The following discussions are intended to help you answer the previous questions and become familiar with the standards that must be followed to make sure a search has been conducted properly. In addition to these discussions, you should familiarize yourself with the applicable command instructions and JAG directives on search and seizure procedures.

Each military member has a constitutionally protected right to privacy. However, a service member's expectation of privacy must occasionally be infringed upon because of military necessity. Military law recognizes that the individual's right to privacy is balanced against the command's legitimate interests in maintaining health, welfare, discipline, and readiness, as well as by the need to obtain evidence of criminal offenses.

Searches and seizures conducted according to the requirements of the United States Constitution will generally yield admissible evidence. On the other hand, evidence obtained in violation of constitutional mandates will not be admissible in any later criminal prosecution. With this in mind, the most productive approach for you is to develop a thorough knowledge of what actions are legally permissible (producing admissible evidence for trial by court-martial) and what actions are not. This understanding will enable the command to determine, before acting in a situation, whether prosecution will be possible. The legality of the search or seizure depends on what was done by the command at the time of the search or seizure. No amount of legal brilliance by a trial counsel (TC) at trial can undo an unlawful search and seizure. SOURCES OF THE LAW OF SEARCH AND SEIZURE

LEARNING OBJECTIVES: Explain the Fourth Amendment to the Constitution and describe probable cause, particularly described, and the exclusionary rule. Identify how the Manual for Courts-Martial (MCM) applies to search and seizure in terms of the Military Rules of Evidence (MRE).

The two sources we will discuss regarding search and seizure include the Constitution and the MCM.

UNITED STATES CONSTITUTION

Although enacted long ago, the language of the Fourth Amendment to the Constitution has never changed. The Fourth Amendment was not an important part of American jurisprudence until this century when courts created an exclusionary rule based on its language:

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.

Probable Cause

An important concept contained in the Fourth Amendment is that of probable cause. This concept is not particularly complicated, nor is it as confusing as often assumed.

In deciding whether probable cause exists, you must first remember that conclusions of others do not comprise an acceptable basis for probable cause. The person who is called upon to determine probable cause must, in all cases, make an independent assessment of facts presented before a constitutionally valid finding of probable cause can be made. The concept of probable cause arises in many different factual situations. Numerous individuals in a command may be called upon to establish its presence during an investigation.

Although the reading of the U.S. Constitution would indicate that only searches performed pursuant to a warrant are permissible, there have been certain exceptions carved out of that requirement, and these exceptions have been classified as searches otherwise reasonable. Probable cause plays an important role in some of these searches that will be dealt with individually in this chapter.

Although the Fourth Amendment mandates that only information obtained under oath may be used as a basis for probable cause, military courts traditionally ignored this requirement. Still, it is strongly recommended that the information be given under oath. When a person takes an oath, it is a factor that adds to the believability of that person.

Particularly Described

The Fourth Amendment also provides that no search or seizure will be reasonable if the intrusion is into an area not particularly described. This requirement requires a particular description of the place to be searched and items to be seized. Thus, the intrusion by Government officials must be as limited as possible in areas where a person has a legitimate expectation of privacy.

Exclusionary Rule

The exclusionary rule of the Fourth Amendment. is a judicially created rule based upon the language of the Fourth Amendment. The U.S. Supreme Court considered this rule necessary to prevent unreasonable searches and seizures by Government officials. In more recent decisions, the Supreme Court has reexamined the scope of this suppression remedy and concluded that the rule should only be applied where the Fourth Amendment violation is substantial and deliberate. So, where Government agents are acting in an objectively reasonable manner (in good faith), the evidence seized should be admitted despite technical violations of the Fourth Amendment.

MANUAL FOR COURTS-MARTIAL (MCM)

By a 1980 amendment to the MCM, the Military Rules of Evidence (MRE) were enacted. The MRE provide extensive guidance in the area of search and seizure in rules 300-317. Anyone charged with the responsibility for authorizing and conducting lawful searches should be familiar with those rules. Unlike

the area of confessions and admissions, which are covered in Article 31 of the UCMJ, there is no basis in the Uniform Code of Military Justice (UCMJ) for the military law of search and seizure.