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Sources of the Law of Search and Seizure - 14134_87
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Probable Cause Searches Based Upon Prior Authorization - 14134_89
with a view to the discovery of contraband or other evidence to be used in a criminal prosecution. Three factors must exist before the law of search and seizure will apply. Does the command activity constitute: l a quest for evidence; . a search conducted by a government agent; or . a search conducted in an area where a reasonable expectation of privacy exists. If, for example, it were shown that the evidence in question has been abandoned by its owner, the quest for such evidence by a government agent that led to the seizure of the evidence would present no problem, since there was no reasonable expectation of privacy of such property. Seizure—A  seizure  is  taking  possession  of  a  person or  some  item  of  evidence  in  conjunction  with  the investigation of criminal activity. The act of seizure is separate and distinct from the search; the two terms varying significantly in legal effect. On some occasions a search of an area may be lawful, but not a seizure of certain items thought to be evidence. Examples of this distinction will be seen later in this chapter, Mil.R.Evid. 316  deals  specifically  with  seizures  and  creates  some basic rules for application of the concept. Additionally, a proper person, such as anyone with the rank of E-4 or above, or any criminal investigator, such as an NCIS special  agent,  generally  must  be  used  to  make  the seizure,  except  in  cases  of  abandoned  property. Probable cause to search—Probable cause to search is   a   reasonable   belief,   based   upon   believable information having a factual basis, that a crime has been committed and the person, property, or evidence sought is located in the place or on the person to be searched. Probable  cause  information  generally  comes  from any of the following sources: l l l Written   statements Oral statements communicated in person, via telephone,  or  by  other  appropriate  means  of communication Information known by the authorizing officer (the CO) Probable cause to apprehend—Probable cause to apprehend an individual is similar in that a person must conclude, based upon facts, that a crime was committed and the person to be apprehended is the person who committed  the  crime. A  detailed  discussion  of  the  requirement  for  a finding of probable cause to search appears later in this chapter. Further discussion of the concept of probable cause to apprehend also appears later in this chapter in connection  with  searches  incident  to  apprehension. OBJECTS OF A SEARCH OR SEIZURE In carrying out a lawful search or seizure, agents of the government are bound to look for and seize only items  that  provide  some  link  to  criminal  activity. Mil.R.Evid.   316   provides,   for   example,   that   the following  categories  of  evidence  may  be  seized: .  Unlawful  weapons  made  unlawful  by  some  law or  regulation . Contraband or items that may not legally be possessed . Evidence of a crime that may include such things as instrumentalities of crime, items used to commit crimes, fruits of crime, such as stolen property, and other items that aid in the successful prosecution of a crime .   Persons,   when   probable   cause   exists   for apprehension .  Abandoned  property  that  may  be  seized  or searched for any or no reason, by any person .  Government  property With regard to government property, the following rules apply: l Generally, government agents may search for and seize such property for any or no reason, and there is a presumption that no privacy expectation attaches. . Footlockers or wall lockers are presumed to carry with them an expectation of privacy; thus they can be searched only when the Military Rules of Evidence permit. CATEGORIZATION OF SEARCHES In discussing the law of search and seizure, we can divide all search and seizure activity into two broad areas-those that require prior authorization and those that do not. Within the latter category of searches, there are  two  types-searches  requiring  probable  cause  and searches   not   requiring   probable   cause. The constitutional  mandate  of  reasonableness  is  most  easily met by those searches predicated on prior authorization, and  thus  authorized  searches  are  preferred.  The  courts have  recognized,  however,  that  some  situations  require 4-10

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