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Probable Cause Searches Based Upon Prior Authorization - 14134_89
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Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
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The Requirement of Probable Cause - 14134_91
If the private property is owned or controlled by a civilian, the commander’s authority does not extend beyond the limits of the pertinent command area. Property   that   is   government-owned   and   not intended for private use may be searched at any time, with or without probable cause, for any reason, or for no reason at all. Examples of this type of property include government vehicles, aircraft, ships, and so on. Property that is government-owned and that has a private   use   by   military   persons   (for   example, expectation of privacy) maybe searched by the order of the CO having control over the area, but probable cause is required. An example of this type of property is a BOQ/BEQ   room. Mil.R.Evid.  314  attempts  to  remove  the  confusion about  which  kinds  of  government  property  involve expectations of privacy. The intent of the rule in this area is to affirm that there is a presumed right to privacy in wall lockers, footlockers, and in items issued for private use. With other government equipment, there is a presumption that no personal right to privacy exists. Property that is privately owned and controlled or possessed  by  a  military  member  within  a  military command area (including ships, aircraft, and vehicles) within  the  United  States,  its  territories,  or  possessions, may  be  ordered  searched  by  the  appropriate  military authority  with  jurisdiction,  if  the  probable  cause requirement is fulfilled. Examples  of  this  type  of property  include  automobiles,  motorcycles,  and luggage. Private property that is controlled or possessed by a civilian (any person not subject to the UCMJ,) may be ordered  searched  by  the  appropriate  military  authority only  if  such  property  is  within  the  command  area (including vehicles, vessels, or aircraft). If the property ordered searched is, for example, a civilian banking institution located on base, attention must be given to any additional laws or regulations that govern those places. Searches outside the United States, its territories or possessions,   constitute  special  situations. Here the military authority or his or her designee may authorize searches of persons subject to the UCMJ, their personal property, vehicles, and residences, on or off a military installation.  Any  relevant  treaty  or  agreement  with  the host country should be complied with. The probable cause   requirement   still   exists. Except   where specifically  authorized  by  international  agreement, foreign agents do not have the right to search areas considered extensions of the sovereignty of the United States. 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. 4-12

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