Exigency Searches

This type of search is permitted by Mil.R.Evid. 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 amount of probable cause required for search authorizations must be found to justify an intrusion based on exigency. Prior authorization is not required under Mil.R.Evid. 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 United States 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 may be searched any time and any place under the provisions of Mil.R.Evid. 314(d).

Searches Not Requiring Probable Cause

Mil.R.Evid. 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 is 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 maybe conducted by anyone for any reason (or for no reason) pursuant to Mil.R.Evid. 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 requesting consent. (OPNAVINST 5350.4B 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, appendix A-1-o, and figure 4-2 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 anytime. 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 Mil.R.Evid. 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 makes 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

Figure 4-2.-Consent to search.

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.

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 Mil.R.Evid. 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 that the apprehending official is aware of facts and circumstances that would justify a reasonable person to conclude that an offense has 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 United States 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 United States Supreme Court have further limited the scope of a search incident to apprehension where the suspect possesses a briefcase, duffel bag, footlocker, suitcase, and soon. 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, Mil.R.Evid. 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.