OBJECTS OF A SEARCH OR SEIZURE

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. Mil.R.Evid. 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 seized 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. . 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

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. Within the latter category of searches, there are two types-searches requiring probable cause and searches not requiring probable cause. The constitutional mandate of reasonableness is most easily met by those searches predicated on prior authorization, and thus 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.

Probable Cause Searches Based Upon Prior Authorization

Military search authorization-This type of prior authorization search is akin to that described in the text of the Fourth Amendment, but is the express product of Mil.R.Evid. 315. Although the prior military law contemplated that only officers in command could authorize a search, Mil.R.Evid. 315 clearly intends that the power to authorize a search follows the billet occupied by the person involved rather than being 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 absent contrary direction from the Secretary of the Navy.

In the typical case, the commander or other competent military authority, such as an OIC, decides whether probable cause exists when issuing a search authorization. Although there is no per se exclusion of COs, courts will decide, on a case-by-case basis, whether a particular commander was in fact neutral and detached. Mil.R.Evid. 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 Mil.R.Evid. 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 Mil.R.Evid. 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 maybe 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- MiL.R.Evid. 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 the Air Force base, a careful consideration of the language of Mil.R.Evid. 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, and so on.

Property that is government-owned and that has a private use by military persons (for example, 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.

Mil.R.Evid. 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 probable cause 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.