THE LANGUAGE OF THE LAW OF SEARCH AND SEIZURE

LEARNING OBJECTIVES: Define the words and terms related to search and seizure.

Certain words and terms must be defined to properly understand their use in this chapter. These definitions are as follows:

SEARCH

A search is a quest for incriminating evidence. It is an examination of a person or an area with a view to the discovery of contraband or other evidence to be used in a criminal prosecution. Three factors must exist before the law of search and seizure will apply. Does the command activity constitute any of the following: 

. A quest for evidence 

. A search conducted by a Government agent

. A search conducted in an area where a reasonable expectation of privacy exists

If, for example, it were shown that the evidence in question had been abandoned by its owner, the quest for such evidence by a Government agent that led to the seizure of the evidence would present no problem, since there was no reasonable expectation of privacy of such property.

SEIZURE

A seizure is taking possession of a person or some item of evidence in conjunction with the investigation of criminal activity. The act of seizure is separate and distinct from the search, the two terms varying significantly in legal effect. On some occasions a search of an area may be lawful, but not a seizure of certain items thought to be evidence. Examples of this distinction will be seen later in this chapter. MRE 316 deals specifically with seizures and creates some basic rules for application of the concept. Except in cases of abandoned property, a proper person (such as anyone with the rank of E-4 or above) or a criminal investigator Naval Criminal Investigative Service (such as a (NCIS) special agent) must be used to make the seizure.

PROBABLE CAUSE TO SEARCH

Probable cause to search is a reasonable belief, based upon believable information having a factual basis, that a crime has been committed and that the person, property, or evidence sought is located in the

place or on the person to be searched.

Probable-cause information generally comes from any of the following sources:

l Written statements

l Oral statements communicated in person, via telephone, or by other appropriate means of communication

l Information known by the authorizing officer (the commanding officer (CO))

PROBABLE CAUSE TO APPREHEND

Probable cause to apprehend an individual is similar in that an authority must conclude, based upon facts, that a crime was committed and that the person to be apprehended is the person who committed the crime.

A detailed discussion of the requirement for a finding of probable cause to search appears later in this chapter. Further discussion of the concept of probable cause to apprehend also appears later in this chapter in connection with searches incident to apprehension.

OBJECTS OF A SEARCH OR SEIZURE

LEARNING OBJECTIVES: List and describe eight categories of evidence that maybe seized.

In carrying out a lawful search or seizure, agents of the government are bound to look for and seize only items that provide some link to criminal activity. MRE 316 provides, for example, that the following categories of evidence may be seized:

. Unlawful weapons made unlawful by some law or regulation . Contraband or items that may not legally be

possessed . Evidence of a crime that may include such things

as instrumentalities of crime, items used to commit crimes, fruits of crime, such as stolen property, and other items that aid in the successful prosecution of a crime

. Persons, when probable cause exists for apprehension . Abandoned property that may be sized or

searched for any or no reason, by any person

. Government property

With regard to government property, the following rules apply:

l Generally, government agents may search for and seize such property for any or no reason, and there is a presumption that no privacy expectation attaches.

l Footlockers or wall lockers are presumed to carry with them an expectation of privacy; thus they can be searched only when the Military Rules of Evidence permit.

CATEGORIZATION OF SEARCHES

LEARNING OBJECTIVES: ^Describe probable-cause searches with and without prior authorization. Explain searches not requiring probable cause.

In discussing the law of search and seizure, we can divide all search and seizure activity into two broad areas: those that require prior authorization and those that do not. Searches that do not require prior authorization are (1) searches requiring probable cause and (2) searches not requiring probable cause. Since the constitutional mandate of reasonableness is most easily met by searches based on prior authorization, authorized searches are preferred. The courts have recognized, however, that some situations require immediate action, and here the reasonable alternative is a search without prior authorization. Although this second category is more closely scrutinized by the courts, several valid approaches can produce admissible evidence.