Execution of the Search Authorization

MRE 315(h) provides that a search authorization or warrant be served upon the person whose property is to be searched if that person is present. Further, the persons who actually perform the search should compile an inventory of items seized and should give a copy of the inventory to the person whose property is seized. If searches are carried out in foreign countries, the rule provides that actions should conform to any existing international agreements. Failure to comply with these provisions, however, will not necessarily render the items involved inadmissible at a trial by court-martial.

Record of Search Authorization

Although written forms are not mandatory, they are highly recommended for several reasons. Many cases may take some time to get to trial, and it is helpful to the parties involved to review such documents before testifying. Further, these records may be introduced to prove that the search was lawful. The Judge Advocate General of the Navy has recommended the use of the standard record of search authorization form, set forth in the JAG Manual and shown in figure 3-1. Should the situation require an immediate determination of probable cause, with no time to use the form, make a record of all facts used

Figure 3-1.-Record of authorization to search.

and actions taken as soon as possible after the events have occurred.

PROBABLE-CAUSE SEARCHES WITHOUT PRIOR AUTHORIZATION

As discussed earlier, there are two basic categories of searches that can be lawful if properly executed. Our discussion to this point has centered on those types of searches that require prior authorization. We will now discuss those categories of searches that have been recognized as exceptions to the general rule requiring authorization before the search. Recall that within this category of searches there are searches requiring probable cause and searches not requiring probable cause.

Exigency Searches

This type of search is permitted by MRE 315(g) under circumstances demanding some immediate action to prevent removal or disposal of property believed, on reasonable grounds, to be evidence of a crime. Although the exigencies may permit a search to be made without the requirement of a search authorization, the same quantum of probable cause required for search authorizations must be found to justify an intrusion based on exigency. Prior authorization is not required under MRE 315(g) for a search based upon probable cause under the following circumstances:

INSUFFICIENT TIME.- No authorization need be obtained where there is probable cause to search and there is a reasonable belief that the time required to obtain an authorization would result in the removal, destruction, or concealment of the property or evidence sought. Although both military and civilian case law, in the past, have applied this doctrine almost exclusively to automobiles, it now seems possible that this exception may be a basis for entry into barracks and apartments in situations where drugs are being used. The Court of Military Appeals found that an OOD, when confronted with the unmistakable odor of burning marijuana outside the accused's barracks room, acted correctly when he demanded entry to the room and placed all occupants under apprehension without first obtaining the CO's authorization for his entry. The fact that he heard shuffling inside the room and was on an authorized tour of living spaces was considered crucial, as well as the fact that the unit was overseas. The court felt that this was a present danger to the military mission, and thus military necessity warranted immediate action.

LACK OF COMMUNICATION.- Action is permitted in cases where probable cause exists and destruction, concealment, or removal is a genuine concern, but communication with an appropriate authorizing official is prevented by reasons of military operational necessity. For instance, where a nuclear submarine, or a Marine Corps unit in the field maintaining radio silence lacks a proper authorizing official (perhaps due to some disqualification on neutrality grounds), no search would otherwise be possible without breaking the silence and perhaps endangering the unit and its mission.

SEARCH OF OPERABLE VEHICLES.- This type of search is based upon the U.S. Supreme Court's creation of an exception to the general warrant requirement where a vehicle is involved. Two factors are controlling. First, a vehicle may easily be removed from the jurisdiction if a warrant or authorization were necessary; and second, the court recognizes a lesser expectation of privacy in automobiles. In the military, the term vehicle includes vessels, aircraft, and tanks, as well as automobiles, trucks, and so on. If probable cause exists to stop and search a vehicle, then authorities may search the entire vehicle and any containers found therein in which the suspected item might reasonably be found. All this can be done without an authorization. It is not necessary to apply this exception to government vehicles, as they maybe searched any time and any place under the provisions of MRE 314(d).

SEARCHES NOT REQUIRING PROBABLE CAUSE

MRE 314 lists several types of lawful searches that do not require either a prior search authorization or probable cause.

Searches Upon Entry to or Exit From U.S. Installations, Aircraft, and Vessels Abroad

Commanders of military installations, aircraft, or vessels located abroad may authorize personnel to conduct searches of persons or property upon entry to or exit from the installation, aircraft, or vessel. The justification for the search is the need to make sure the security, military fitness, or good order and discipline of the command are maintained.

Consent Searches

If the owner, or other person in a position to do so, consents to a search of his or her person or property over which he or she has control, a search may be conducted by anyone for any reason (or for no reason) pursuant to MRE 314(e). If a free and voluntary consent is obtained, no probable cause is required. For example, where an investigator asks the accused if he or she "might check his or her personal belongings" and the accused answers, "Yes . . . it's all right with me," the Court of Military Appeals has found that there was consent.

The court has also said, however, that mere agreement in the face of authority is not consent. Thus, where the CO and the chief Master-at-Arms appeared at the accused's locker with a pair of bolt cutters and asked if they could search, the accused's affirmative answer was not consent. The question in each case will be whether consent was freely and voluntarily given. Voluntary consent can be obtained from a suspect who is under apprehension if all other facts indicate it is not mere acquiescence.

Except under the Navy's urinalysis program, there is no absolute requirement that an individual who is asked for consent to search be told of the right to refuse such consent, nor is there any requirement to warn under Article 31(b), even when the individual is a suspect before consent is requested, (OPNAVINST 5350.4 currently requires the Navy to inform a member of his or her right to refuse a consent urinalysis.) Both warnings can help show that consent was voluntarily given. The courts have been unanimous in finding such warnings to be strong indicia that any waiver of the right to privacy thereafter given was free and voluntary.

Additionally, use of a written consent to search form is a sound practice. JAGMAN 0170 and figure 3-2

Figure 3-2.-Consent to search. 3-9

Illustrate the consent to search form that should be used. Remember that since the consent itself is a waiver of a constitutional right by the person involved, it may be limited in any manner or revoked at any time. The fact that you have the consent in writing does not make it binding on a person if a withdrawal or limitation is communicated. Refusing to give consent or revoking it does not then give probable cause where none existed before. You cannot use the legitimate claim of a constitutional right to infer guilt or that the person must be hiding something.

Even where consent is obtained, if any other information is solicited from one suspected of an offense, proper Article 31 warnings and, in most cases, counsel warnings must be given.

As previously noted, we use the term control over property rather than ownership. For instance, if Seaman Frost occupies a residence with her male companion, John Doe, John can consent to a search of the residence. Suppose, however, that Seaman Frost keeps a large tin box at the residence to which John is not allowed access. The box would not be subject to a search based upon John's consent. He could only consent to a search of those places or areas where Seaman Frost has given him control. Likewise, if Seaman Frost maintained her own private room within the residence, and John was not permitted access to the room by her, John could not give consent for a search of that room.

Stop and Frisk

Although most often associated with civilian police officers, this type of limited seizure of the person is specifically included in MRE 314(f). It does not require probable cause to be lawful and is most often used in situations where an experienced officer, chief petty officer, or petty officer is confronted with circumstances that just do not seem right. This articulable suspicion allows the law enforcement officer to detain an individual to ask for identification and an explanation of the observed circumstances. This is the stop portion of the intrusion. Should the person who orders the stop have reasonable grounds to fear for his or her safety, a limited frisk or pat down of the outer garments of the person stopped is permitted to find out whether a weapon is present. If any weapon is discovered in this pat down, its seizure can provide probable cause for apprehension and a later search incident thereto. There is, however, no right to frisk or pat down a suspect in situations where no apprehension of personal danger is involved, nor can the frisk be conducted in a more than cursory manner to ensure safety. Further, any detention must be brief and related to the original suspicion that underlies the stop.