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Consent to Search - 14134_96
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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. 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 Mil.R.Evid. 316. An often repeated  example  of  this  type  of  lawful  seizure  arises during a wall locker inspection. While looking at the uniforms  of  a  certain  service  member,  a  baggie  of marijuana falls to the deck. Its seizure as contraband is justifiable under these 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 it is contraband, it is both seizable and admissible  in  court-martial  proceedings. Body Views and Intrusions Under  certain  circumstances  defined  in  Mil.R.Evid. 312,  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 may be 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 Mil.R.Evid. 313 .  Searched  under  Mil.R.Evid.  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 Mil.R.Evid. 314(h) if reasonably necessary to maintain the security of the institution or its personnel l  Searched  incident  to  lawful  apprehension  under Mil.R.Evid.  315 An  examination  of  the  unclothed  body  under  this rule should be conducted whenever practical by a person of the same sex as that of the person being examined, provided, however, that failure to comply with this requirement does not make an examination an unlawful search within the meaning of Mil.R.Evid. 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 4-19

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