| |
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
|
