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Objects of a Search or Seizure - 14134_88
prosecution. With this in mind, the most productive approach for you is to develop a thorough knowledge of what   actions   are   legally   permissible   (producing admissible evidence for trial by court-martial) and what actions  are  not. This  understanding  will  enable  the command to determine, before acting in a situation, whether prosecution will be possible. The legality of the search or seizure depends on what was done by the command  at  the  time  of  the  search  or  seizure.  No amount of legal brilliance by a TC at trial can undo an unlawful  search  and  seizure. SOURCES OF THE LAW OF SEARCH AND SEIZURE United States Constitution—  Although  enacted  in the 18th century, the language of the Fourth Amendment has never changed. The Fourth Amendment was not an important part of American jurisprudence until this century when courts created an exclusionary rule based on its language: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated,  and  no  warrants  shall  issue,  but  upon probable  cause  supported  by  oath  or affirmation,  and  particularly  describing  the place to be searched, and the persons or things to  be  seized. An  important  concept  contained  in  the  Fourth Amendment  is  that  of  probable  cause.  This  concept  is not  particularly  complicated,  nor  is  it  as  confusing  as often  assumed. In deciding whether probable cause exists, you must first  remember  that  conclusions  of  others  do  not comprise an acceptable basis for probable cause. The person who is called upon to determine probable cause must, in all cases, make an independent assessment of facts  presented  before  a  constitutionally  valid  finding  of probable cause can be made. The concept of probable cause  arises  in  many  different  factual  situations. Numerous individuals in a command may be called upon to establish its presence during an investigation. Although the reading of the U.S. Constitution would indicate that only searches performed pursuant to a warrant  are  permissible,  there  have  been  certain exceptions carved out of that requirement, and these exceptions  have  been  classified  as  searches  otherwise reasonable. Probable cause plays an important role in some   of   these   searches   that   will   be   dealt   with individually in this chapter. Although  the  Fourth  Amendment  mandates  that only information obtained under oath may be used as a basis  for  probable  cause,  military  courts  traditionally ignored   this   requirement. Still,  it  is  strongly recommended that the information be given under oath. The oath is one factor that can add to the believability of the person given the oath, the importance of which will be discussed as follows. The Fourth Amendment also provides that no search or seizure will be reasonable if the intrusion is into an are  a  not  particularly  described.  This  requirement requires  a  particular  description  of  the  place  to  be searched and items to be seized. Thus, the intrusion by government officials must be as limited as possible in areas where a person has a legitimate expectation of privacy, The exclusionary rule of the Fourth Amendment is a judicially created rule based upon the language of the Fourth  Amendment.  The  United  States  Supreme  Court considered  this  rule  necessary  to  prevent  unreasonable searches and seizures by government officials. In more recent decisions, the Supreme Court has reexamined the scope of this suppression remedy and concluded that the rule  should  only  be  applied  where  the  Fourth Amendment  violation  is  substantial  and  deliberate.  So, where  government  agents  are  acting  in  an  objectively reasonable manner (in good faith), the evidence seized should  be  admitted  despite  technical  violations  of  the Fourth  Amendment. Manual for Courts-Martial—  Unlike the area of confessions  and  admissions  covered  in  Article  31, UCMJ, there is no basis in the UCMJ for the military law of search and seizure. By a 1980 amendment to the MCM, the Military Rules of Evidence were enacted. The  Military  Rules  of  Evidence  provide  extensive guidance in the area of search and seizure in rules 300-317. Anyone charged with the responsibility y for authorizing  and  conducting  lawful  searches  should  be familiar with those rules. THE LANGUAGE OF THE LAW OF SEARCH AND SEIZURE Certain words and terms must be defined to properly understand their use in this chapter. These definitions are set forth as follows: Search—A  search  is  a  quest  for  incriminating evidence. It is an examination of a person or an area 4-9

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