Searches Incident to Lawful Apprehension

A search of an individual's person, of the clothing he or she is wearing, and of the places into which he or she could reach to obtain a weapon or destroy evidence is a lawful search if conducted incident to a lawful apprehension of that individual and pursuant to MRE 314(g).

Apprehension is the taking into custody of a person. This means the imposition of physical restraint and is substantially the same as civilian arrest. It differs from military arrest, which is merely the imposition of moral restraint.

A search incident to a lawful apprehension will be lawful if the apprehension is based upon probable cause. This means the apprehending official is aware of facts and circumstances that would justify a reasonable person to conclude that an offense had been or is being committed and the person to be apprehended committed or is committing the offense.

The concept of probable cause as it relates to apprehension differs somewhat from that associated with probable cause to search. Instead of concerning oneself with the location of evidence, the second inquiry concerns the actual perpetrator of the offense.

An apprehension may not be used as a subterfuge to conduct an otherwise unlawful search. Furthermore, only the person apprehended and the immediate area where that person could easily obtain a weapon or destroy evidence may be searched. For example, a locked suitcase next to the person apprehended may not be searched incident to the apprehension, but it may be seized and held pending authorization for a search based on probable cause.

Until recently, the extent to which an automobile might be searched incident to the apprehension of the driver or passengers therein was unsettled. In 1981, however, the U.S. Supreme Court firmly established the lawful scope of such apprehension searches. The court held that when a law enforcement officer lawfully apprehends the occupants of an automobile, the officer may conduct a search of the entire passenger compartment, including a locked glove compartment, and any containers found therein, whether opened or closed.

Decisions of the U.S. Supreme Court have further limited the scope of a search incident to apprehension where the suspect possesses a briefcase, duffel bag, footlocker, suitcase, and so on. If it is shown that the object carried or possessed by a suspect was searched incident to the apprehension (that is, at the same time as the apprehension), then the search of that item is likely to be upheld. If, however, the suspect is taken away to be interrogated in room 1 and the suitcase is taken to room 2, a search of the item would not be incident to the apprehension, since it is outside the reach of the suspect. Here, search authorization would be required.

Emergency Searches to Save Life or for Related Purposes

In emergency situations, MRE 314(i) permits searches to be conducted to save lives or for related purposes. The search may be performed in an effort to render immediate medical aid, to obtain information that will assist in the rendering of such aid, or to prevent immediate or ongoing personal injury. Such a search must be conducted in good faith and may not be a subterfuge to circumvent an individual's Fourth Amendment protections.

Plain View Searches

When a Government official is in a place where he or she has a lawful right to be, whether by invitation or official duty, evidence of a crime observed in plain view may be seized, according to MRE 316. An often repeated example of this type of lawful seizure arises during a wall locker inspection. While the searcher is looking at the uniforms of a certain service member, a bag of marijuana falls to the deck. Its seizure as contraband is justifiable under those circumstances, as having been observed in plain view. Another situation could arise while a searcher is carrying out a duly authorized search for stolen property and comes upon a gun in the search area; since the gun is contraband, it is both seizable and admissible in court-martial proceedings.

Body Views and Intrusions

Under certain circumstances defined in MRE312, evidence that is the result of a body view or intrusion will be admissible at court-martial. There are also situations where such body views and intrusions may be performed in a nonconsensual manner and still be admissible.

Visual examination of the unclothed body maybe made with the consent of the individual subject to the inspection. An involuntary display of the unclothed body, including a visual examination of body cavities, may be required only if conducted in reasonable fashion and authorized under the following provisions of the Military Rules of Evidence: . Inspections and inventories under MRE 313 . Searched under MRE 314(b) and 314(c) if there

is a reasonable suspicion that weapons, contraband, or evidence of a crime is concealed on the body of the person to be searched . Searched within jails and similar facilities under

MRE 314(h) if reasonably necessary to maintain the security of the institution or its personnel l Searched incident to lawful apprehension under

MRE 315

An examination of the unclothed body under this rule should be conducted whenever practical by a person of the same sex as the person being examined; failure to comply with this requirement does not make an examination an unlawful search within the meaning of MRE 311.

A reasonable nonconsensual physical intrusion into the mouth, nose, and ears may be made when a visual examination of the body is permissible. Nonconsensual intrusions into other body cavities may be made under the following categories.

For purposes of seizure-When there is a clear indication that weapons, contraband, or other evidence of a crime is present, to remove weapons, contraband, or evidence of a crime discovered if such intrusion is made in a reasonable fashion by a person with appropriate medical qualifications.

For purposes of search-To search for weapons, contraband, or evidence of a crime if authorized by a search warrant or search authorization and conducted by a person with appropriate medical qualifications.

Notwithstanding this rule, a search under MRE 314(h) may be made without a search warrant or authorization if such search is based on a reasonable suspicion that the individual is concealing weapons, contraband, or evidence of a crime.

Extraction of bodily fluids-The nonconsensual extraction of body fluids; for example, blood, is permissible under the two following circumstances: . Pursuant to a lawful search authorization

. Where the circumstances show a clear indication that evidence of a crime will be found and that there is reason to believe that the delay required to seek a search authorization could result in the destruction of the evidence

Involuntary extraction of body fluids, whether conducted pursuant to either situation mentioned previously, must be done in a reasonable fashion by a person with the appropriate medical qualifications. (It is likely that physical extraction of a urine sample would be considered a violation of constitutional due process, even if based on an otherwise lawful search authorization.) Note that an order to provide a urine sample through normal elimination, as in the typical urinalysis inspection, is not an extraction and need not be conducted by medical personnel.

Intrusions for valid medical purposes-The military may take whatever actions are necessary to preserve the health of a service member. Thus, evidence or contraband obtained from an examination or intrusion conducted for a valid medical purpose may be seized and will be admissible at a courtmartial.