| |
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
|
