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Consent to Search - 14134_96
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 4-17

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