PROBABLE-CAUSE SEARCHES BASED UPON PRIOR AUTHORIZATION

The military search authorization is a priorauthorization search, like that described in the text of the Fourth Amendment, but is the express product of MRE 315. Although the prior military law contemplated that only officers in command could authorize a search, MRE 315 clearly intends that the power to authorize a search follows the billet occupied by the person involved, rather than be founded in rank or officer status. Thus, in those situations where senior noncommissioned or petty officers occupy positions as officers in charge (OICs) or positions similar to command, they are generally competent to authorize searches unless otherwise directed by the Secretary of the Navy.

In the typical case, the commander or other competent military authority, such as an OIC, decides, when issuing a search authorization, whether probable cause exists. Although there is no exclusion of COs per se, courts will decide, on a case-by-case basis, whether a particular commander was in fact neutral and detached. MRE 315(d) provides that:

An otherwise impartial authorizing official does not lose that character merely because he or she is present at the scene of a search or is otherwise readily available to persons who may seek the issuance of a search authorization; nor does such an official lose impartial character merely because the official previously and impartially authorized investigative activities when such previous authorization is similar in intent or function to a pretrial authorization made by the United States district courts.

Jurisdiction to Authorize Searches

Before any competent military authority can lawfully order a search and seizure, he or she must have the authority necessary over both the person and/or place to be searched, and the persons or property to be seized. This authority, or jurisdiction, is most often a dual concept-jurisdiction over the place and over the person. Any search or seizure authorized by one not having jurisdiction is a nullity and, even though otherwise valid, the fruits of any seizure would not be admissible in a trial by court-martial if objected to by the defense.

JURISDICTION OVER THE PERSON.- It is critical to any analysis of the authority of the CO over persons to determine whether the person is a civilian or military witness.

Civilians. -The search of civilians is now permitted under MRE 315(c) when they are present aboard military installations. This gives the military commander an additional alternative in such situations where the only possibility before the MRE was to detain that person for a reasonable time while a warrant was sought from the appropriate federal or state magistrate. Furthermore, a civilian desiring to enter or exit a military installation may be subject to a reasonable inspection as a condition precedent to entry or exit. Such inspections have recently been upheld as a valid exercise by the commander of the administrative need for security of military bases. Inspections will be discussed later in this chapter.

Military.- MRE 315 indicates two categories of military persons who are subject to search by the authorization of competent military authority- members of that CO's unit and others who are subject to military law when in places under that CO's jurisdiction; for example, aboard a ship or in a command area. There is military case authority for the proposition that the commander's power to authorize searches of members of his or her command goes beyond the requirement of presence within the area of the command. In one case, the court held that a search authorized by the accused's CO, although actually conducted outside the squadron area, was nevertheless lawful. Although this search occurred within the confines of an Air Force base, a careful consideration of the language of MRE 315(d)(1) indicates that a person subject to military law could be searched even while outside the military installation. This would hold true only for the search of the person, since personal property located off base is not under the jurisdiction of the CO if situated in the United States, its territories, or possessions.

JURISDICTION OVER THE PROPERTY.- Several topics must be considered when determining whether a CO can authorize the search of property. It is necessary to decide first if the property is Government-owned and, if so, whether it is intended for Governmental or private use. If the property is owned, operated, or subject to the control of a military person, its location determines whether a commander may authorize a search or seizure. If the private property is owned or controlled by a civilian, the commander's authority does not extend beyond the limits of the pertinent command area.

Property that is Government-owned and not intended for private use may be searched at any time, with or without probable cause, for any reason, or for no reason at all. Examples of this type of property include Government vehicles, aircraft, ships.

Property that is Government-owned but has a private use by military persons (therefore, an expectation of privacy) maybe searched by the order of the CO having control over the area, but probable cause is required. An example of this type of property is a BOQ/BEQ room.

MRE 314 attempts to remove the confusion about which kinds of Government property involve expectations of privacy. The intent of the rule in this area is to affirm that there is a presumed right to privacy in wall lockers, footlockers, and in items issued for private use. With other Government equipment, there is a presumption that no personal right to privacy exists.

Property that is privately owned and controlled or possessed by a military member within a military command area (including ships, aircraft, and vehicles) within the United States, its territories, or possessions, may be ordered searched by the appropriate military authority with jurisdiction-if the probable-cause requirement is fulfilled. Examples of this type of property include automobiles, motorcycles, and luggage.

Private property that is controlled or possessed by a civilian (any person not subject to the UCMJ) may be ordered searched by the appropriate military authority only if such property is within the command area (including vehicles, vessels, or aircraft). If the property ordered searched is, for example, a civilian banking institution located on base, attention must be given to any additional laws or regulations that govern those places.

Searches outside the United States, its territories or possessions, constitute special situations. Here the military authority or his or her designee may authorize searches of persons subject to the UCMJ, their personal property, vehicles, and residences, on or off a military installation. Any relevant treaty or agreement with the host country should be complied with. The probablecause requirement still exists. Except where specifically authorized by international agreement, foreign agents do not have the right to search areas considered extensions of the sovereignty of the United States.

Delegation of the Power to Authorize Searches

Traditionally, commanders have delegated their power to authorize searches to their chief of staff, command duty officer (CDO), or even the officer of the day (OOD). This practice was held to be illegal, as the Court of Military Appeals has held that a CO may not delegate the power to authorize searches and seizures to anyone except a military judge or military magistrate. The court decided that most searches authorized by delegees such as CDOs would result in unreasonable searches or seizures in violation of the Fourth Amendment. If full command responsibility devolves upon a subordinate, that person may authorize searches and seizures, since the subordinate in such cases is acting as the CO. General command responsibility does not automatically devolve to the CDO, OOD, or even the executive officer (XO) simply because the CO is absent. Only if full command responsibilities devolve to a subordinate member of the command may that person lawfully authorize a search. If, for example, the CDO or OOD must contact a superior officer or the CO before acting on any matter affecting the command, full command responsibilities will not have devolved to that person and, therefore, he or she could not lawfully authorize a search or seizure. Guidance on this matter has been issued by the Commander in Chief Atlantic Fleet (CINCLANTFLT), Commander in Chief Pacific Fleet (CINCPACFLT), and Commander in Chief U.S. Naval Forces, Europe (CINCUSNAVEUR). Until the courts provide further guidance on this issue, you should follow the guidance set forth by your respective CINCs.

The Requirement of Neutrality and Detachment

A commander must be neutral and detached when acting on a request for search authorization. The courts have issued certain rules that, if violated, will void any search authorized by a CO on the basis of lack of neutrality and detachment. These rules are designed to prevent an individual who has entered the evidencegathering process from thereafter acting to authorize a search. The intent of both the courts' decisions and the rules of evidence is to maintain impartiality in each case. Where a commander has become involved in any capacity concerning an individual case, the commander should carefully consider whether his or her perspective can truly be objective when reviewing later requests for search authorization.

If a commander is faced with a situation in which action on a search authorization request is impossible because of a lack of neutrality or detachment, a superior commander in the chain of command or another commander who has jurisdiction over the person or place should be asked to authorize the search.

The Requirement for Probable Cause

As discussed earlier, the probable-cause determination is based upon a reasonable belief that a crime was committed and that certain persons, property, or evidence related to that crime will be found in the place or on the persons to be searched.

Before an authority may conclude that probable cause to search exists, he or she should have a reasonable belief that the information giving rise to the intent to search is believable and has a factual basis.

The portion of MRE 315 dealing with probable cause recognizes the proper use of hearsay information in the determination of probable cause and allows such determinations to be based either wholly or in part on such information.

Probable cause must be based on information provided to or already known by the authorizing official. Such information can come to the commander through written documents, oral statements, messages relayed through normal communications procedures, such as the telephone or by radio, or may be based on information already known by the authorizing official.

In all cases, both the factual basis and believability basis should be satisfied. The factual basis requirement is met when an individual reasonably concludes that the information, if reliable, adequately apprises him or her that the property in question is what it is alleged to be and is located where it is alleged to be. Information is believable when an individual reasonably concludes that it is sufficiently reliable to be believed.

The method of application of the tests will differ, however, depending upon circumstances. The following examples are illustrative: . An individual making a probable-cause determination who observes an incident firsthand must determine only that the observation is reliable and that the property is likely to be what it appears to be. For example, an officer who believes that he or she sees an individual in possession of heroin must first conclude that the observation was reliable (whether his or her eyesight was adequate and the observation was long enough) and that he or she has sufficient knowledge and experience to be able reasonably to believe that the substance in question is in fact heroin. . An individual making a probable-cause determination who relies upon the in-person report of an informant must determine both that the informant is believable and that the property observed is likely to be what the observer believes it to be. The determining individual may consider the demeanor of the informant to help determine whether the informant is believable. An individual known to have a clean record and having no bias against the suspect is likely to be credible. 

l An individual making a probable-cause determination who relies upon the report of an informant not present before the authorizing official must determine both that the informant is believable and that the information supplied has a factual basis. The individual making the determination may use one or more of the following factors to decide whether the informant is believable:

- Prior record as a reliable informant-Has the informant given information in the past that proved to be accurate?

- Corroborating detail-Has enough detail of the informant's information been verified to imply that the remainder can reasonably be presumed to be accurate?

- Statement against interest-Is the information given by the informant sufficiently adverse to the pecuniary or penal interest of the informant to imply that the information may reasonably be presumed to be accurate?

- Good citizen-Is the character of the informant, as a person known by the individual making the probable-cause determination, such as to make it reasonable to presume that the information is accurate?

These factors are not the only ways to determine an informant's believability. The commander may consider any factor tending to show believability, such as the informant's military record, his or her duty assignments, and whether the informant has given the information under oath.

Mere allegations, however, may not be relied upon. Thus, an individual may not reasonably conclude that an informant is reliable simply because the informant is described as such by a law enforcement agent. The individual making the probable-cause determination should be supplied with specific details of the informant's past actions to allow that individual to personally and reasonably conclude that the informant is reliable. The informant's identity need not be disclosed to the authorizing officer, but it is often a good practice to do so.

Finally, probable cause must be determined by the person who is asked to authorize the search without regard to the prior conclusions of others on the question to be answered. No conclusion of the authorizing official should ever be based on a conclusion of some other person or persons. The determination that probable cause exists can be arrived at only by the officer charged with that responsibility.