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If the private property is owned or controlled by a
civilian, the commander’s authority does not extend
beyond the limits of the pertinent command area.
Property that is government-owned and not
intended for private use may be searched at any time,
with or without probable cause, for any reason, or for no
reason at all. Examples of this type of property include
government vehicles, aircraft, ships, and so on.
Property that is government-owned and that has a
private use by military persons (for example,
expectation of privacy) maybe searched by the order of
the CO having control over the area, but probable cause
is required. An example of this type of property is a
BOQ/BEQ room.
Mil.R.Evid. 314 attempts to remove the confusion
about which kinds of government property involve
expectations of privacy. The intent of the rule in this
area is to affirm that there is a presumed right to privacy
in wall lockers, footlockers, and in items issued for
private use. With other government equipment, there is
a presumption that no personal right to privacy exists.
Property that is privately owned and controlled or
possessed by a military member within a military
command area (including ships, aircraft, and vehicles)
within the United States, its territories, or possessions,
may be ordered searched by the appropriate military
authority with jurisdiction, if the probable cause
requirement is fulfilled.
Examples of this type of
property include automobiles, motorcycles, and
luggage.
Private property that is controlled or possessed by a
civilian (any person not subject to the UCMJ,) may be
ordered searched by the appropriate military authority
only if such property is within the command area
(including vehicles, vessels, or aircraft). If the property
ordered searched is, for example, a civilian banking
institution located on base, attention must be given to
any additional laws or regulations that govern those
places.
Searches outside the United States, its territories or
possessions, constitute special situations.
Here the
military authority or his or her designee may authorize
searches of persons subject to the UCMJ, their personal
property, vehicles, and residences, on or off a military
installation. Any relevant treaty or agreement with the
host country should be complied with. The probable
cause requirement still exists.
Except where
specifically authorized by international agreement,
foreign agents do not have the right to search areas
considered extensions of the sovereignty of the United
States.
DELEGATION OF THE POWER TO
AUTHORIZE
SEARCHES.— Traditionally,
commanders have delegated their power to authorize
searches to their chief of staff, command duty officer
(CDO), or even the officer of the day (OOD). This
practice was held to be illegal, as the Court of Military
Appeals has held that a CO may not delegate the power
to authorize searches and seizures to anyone except a
military judge or military magistrate. The court decided
that most searches authorized by delegees such as CDOs
would result in unreasonable searches or seizures in
violation of the Fourth Amendment. If full command
responsibility devolves upon a subordinate, that person
may authorize searches and seizures since the
subordinate in such cases is acting as the CO. General
command responsibility does not automatically devolve
to the CDO, OOD, or even the executive officer (XO)
simply because the CO is absent. Only if full command
responsibilities devolve to a subordinate member of the
command may that person lawfully authorize a search.
If, for example, the CDO or OOD must contact a
superior officer or the CO before acting on any matter
affecting the command, full command responsibilities
will not have devolved to that person and, therefore, he
or she could not lawfully authority a search or seizure.
Guidance on this matter has been issued by the
Commander in Chief Atlantic Fleet (CINCLANTFLT),
Commander in Chief Pacific Fleet (CINCPACFLT), and
Commander in Chief U.S. Naval Forces, Europe
(CINCUSNAVEUR). Until the courts provide further
guidance on this issue, you should follow the guidance
set forth by your respective CINCs.
THE REQUIREMENT OF NEUTRALITY
AND DETACHMENT.— A commander must be
neutral and detached when acting on a request for search
authorization. The courts have issued certain rules that,
if violated, will void any search authorized by a CO on
the basis of lack of neutrality and detachment. These
rules are designed to prevent an individual who has
entered the evidence gathering process from thereafter
acting to authorize a search. The intent of both the
courts’ decisions and the rules of evidence is to maintain
impartiality in each case.
When a commander has
become involved in any capacity concerning an
individual case, the commander should carefully
consider whether his or her perspective can truly be
objective when reviewing later requests for search
authorization.
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