If a commander is faced with a situation in which
action on a search authorization request is impossible
because of a lack of neutrality or detachment, a superior
commander in the chain of command or another
commander who has jurisdiction over the person or
place should be asked to authorize the search.
THE REQUIREMENT OF PROBABLE
CAUSE. As discussed earlier, the probable cause
determination is based upon a reasonable belief that a
crime was committed and certain persons, property, or
evidence related to that crime will be found in the place
or on the persons to be searched.
Before a person may conclude that probable cause
to search exists, he or she should have a reasonable
belief that the information giving rise to the intent to
search is believable and has a factual basis.
The portion of Mil.R.Evid. 315 dealing with
probable cause recognizes the proper use of hearsay
information in the determination of probable cause and
allows such determinations to be based either wholly or
in part on such information.
Probable cause must be based on information
provided to or already known by the authorizing official.
Such information can come to the commander through
written documents, oral statements, messages relayed
through normal communications procedures such as the
telephone or by radio, or may be based on information
already known by the authorizing official.
In all cases, both the factual basis and believability
basis should he satisfied. The factual basis requirement
is met when an individual reasonably concludes that the
information, if reliable, adequately apprises him or her
that the property in question is what it is alleged to be
and is located where it is alleged to be. Information is
believable when an individual reasonably concludes
that it is sufficiently reliable to be believed.
The method of application of the tests will differ,
however, depending upon circumstances. The
following examples are illustrative:
l An individual making a probable cause
determination who observes an incident firsthand must
determine only that the observation is reliable and that
the property is likely to be what it appears to be. For
example, an officer who believes that he or she sees an
individual in possession of heroin must first conclude
that the observation was reliable; for example, whether
his or her eyesight was adequate and the observation was
long enough, and that he or she has sufficient knowledge
and experience to be able reasonably to believe that the
substance in question is in fact heroin.
. An individual making a probable cause
determination who relies upon the in-person report of
an informant must determine both that the informant is
believable and that the property observed is likely to be
what the observer believes it to be. The determining
individual may consider the demeanor of the informant
to help determine whether the informant is believable.
An individual known to have a clean record and no bias
against the suspect is likely to be credible.
. An individual making a probable cause
determination who relies upon the report of an informant
not present before the authorizing official must
determine both that the informant is believable and that
the information supplied has a factual basis. The
individual making the determination may use one or
more of the following factors to decide whether the
informant is believable.
Prior record as a reliable informantHas the
informant given information in the past that proved
to be accurate?
Corroborating detailHas enough detail of the
informants information been verified to imply that
the remainder can reasonably be presumed to be
Statement against interestIs the information
given by the informant sufficiently adverse to the
pecuniary or penal interest of the informant to imply
that the information may reasonably be presumed to
Good citizenIs the character of the informant, as
a person known by the individual making the
probable cause determination, such as to make it
reasonable to presume that the information is
The factors listed previously are not the only ways
to determine an informants believability. The
commander may consider any factor tending to show
believability, such as the informants military record, his
or her duty assignments, and whether the informant has
given the information under oath.
Mere allegations, however, may not be relied upon.
Thus, an individual may not reasonably conclude that
an informant is reliable simply because the informant is
described as such by a law enforcement agent. The
individual making the probable cause determination
should be supplied with
informants past actions to
specific details of the
allow that individual to