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

Before a person 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 Mil.R.Evid. 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 he 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: l 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; for example, 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 no bias against the suspect is likely to be credible.

. 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?

The factors listed previously 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.

FORMS.- Although written forms to record the terms of the authorization or to set forth the underlying information relied upon in granting the request are not mandatory, the use of such memorandums is highly recommended for several reasons. Many cases may take some time to get to trial. It is helpful to the person who must testify about actions taken in authorizing a search 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 appendix A-1-n to the JAG Manual and as shown in figure 4-1. Should the

Figure 4-1.-Record of authorization to search.

Figure 4-1.-Record of authorization to search-Continued.

exigencies of the situation require an immediate determination of probable cause, with no time to use the form, make a record of all facts used and actions taken as soon as possible after the events have occurred.

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,

EXECUTION OF ^THE SEARCH AUTHORIZATION- Mil.R.Evid. 315(h) provides that a search authorization or warrant should 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,

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.