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? You may not be involved in conducting a search, but you should be familiar with the procedures for preparing the paper work associated with searches and the rights of individuals 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 of 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 of 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.

Searchcs 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 TC at trial can undo an unlawful search and seizure.

SOURCES OF THE LAW OF SEARCH AND SEIZURE

United States Constitution- Although enacted in the 18th century, the language of the Fourth Amendment 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.

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. The oath is one factor that can add to the believability of the person given the oath, the importance of which will be discussed as follows.

The Fourth Amendment also provides that no search or seizure will be reasonable if the intrusion is into an are a 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,

The exclusionary rule of the Fourth Amendment is a judicially created rule based upon the language of the Fourth Amendment. The United States 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- Unlike the area of confessions and admissions covered in Article 31, UCMJ, there is no basis in the UCMJ for the military law of search and seizure. By a 1980 amendment to the MCM, the Military Rules of Evidence were enacted. The Military Rules of Evidence provide extensive guidance in the area of search and seizure in rules 300-317. Anyone charged with the responsibility y for authorizing and conducting lawful searches should be familiar with those rules.

THE LANGUAGE OF THE LAW OF SEARCH AND SEIZURE

Certain words and terms must be defined to properly understand their use in this chapter. These definitions are set forth 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: l a quest for evidence; . a search conducted by a government agent; or . a search conducted in an area where a reasonable expectation of privacy exists.

If, for example, it were shown that the evidence in question has 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, Mil.R.Evid. 316 deals specifically with seizures and creates some basic rules for application of the concept. Additionally, a proper person, such as anyone with the rank of E-4 or above, or any criminal investigator, such as an NCIS special agent, generally must be used to make the seizure, except in cases of abandoned property.

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 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 CO)

Probable cause to apprehend-Probable cause to apprehend an individual is similar in that a person must conclude, based upon facts, that a crime was committed and 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.