| |
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
|
