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destroy evidence may be searched. For example, a
locked suitcase next to the person apprehended may not
be searched incident to the apprehension, but it may be
seized and held pending authorization for a search based
on probable cause.
Until recently, the extent to which an automobile
might be searched incident to the apprehension of the
driver or passengers therein was unsettled. In 1981,
however, the United States Supreme Court firmly
established the lawful scope of such apprehension
searches. The court held that when a law enforcement
officer lawfully apprehends the occupants of an
automobile, the officer may conduct a search of the
entire passenger compartment, including a locked glove
compartment, and any containers found therein,
whether opened or closed.
Decisions of the United States Supreme Court have
further limited the scope of a search incident to
apprehension where the suspect possesses a briefcase,
duffel bag, footlocker, suitcase, and soon. If it is shown
that the object carried or possessed by a suspect was
searched incident to the apprehension; that is, at the
same time as the apprehension, then the search of that
item is likely to be upheld. If, however, the suspect is
taken away to be interrogated in room 1 and the suitcase
is taken to room 2, a search of the item would not be
incident to the apprehension since it is outside the reach
of the suspect.
Here, search authorization would be
required.
EMERGENCY SEARCHES TO SAVE LIFE
OR FOR RELATED PURPOSES.— In emergency
situations, Mil.R.Evid. 314(i) permits searches to be
conducted to save lives or for related purposes. The
search may be performed in an effort to render
immediate medical aid, to obtain information that will
assist in the rendering of such aid, or to prevent
immediate or ongoing personal injury. Such a search
must be conducted in good faith and may not be a
subterfuge to circumvent an individual’s Fourth
Amendment protections.
Plain View Searches
When a government official is in a place where he
or she has a lawful right to be, whether by invitation or
official duty, evidence of a crime observed in plain view
may be seized according to Mil.R.Evid. 316. An often
repeated example of this type of lawful seizure arises
during a wall locker inspection. While looking at the
uniforms of a certain service member, a baggie of
marijuana falls to the deck. Its seizure as contraband is
justifiable under these circumstances as having been
observed in plain view. Another situation could arise
while a searcher is carrying out a duly authorized search
for stolen property and comes upon a gun in the search
area. Since it is contraband, it is both seizable and
admissible in court-martial proceedings.
Body Views and Intrusions
Under certain circumstances defined in Mil.R.Evid.
312, evidence that is the result of a body view or
intrusion will be admissible at court-martial. There are
also situations where such body views and intrusions
may be performed in a nonconsensual manner and still
be admissible.
Visual examination of the unclothed body may be
made with the consent of the individual subject to the
inspection. An involuntary display of the unclothed
body, including a visual examination of body cavities,
may be required only if conducted in reasonable fashion
and authorized under the following provisions of the
Military Rules of Evidence:
. Inspections and inventories under Mil.R.Evid.
313
. Searched under Mil.R.Evid. 314(b) and 314(c) if
there is a reasonable suspicion that weapons,
contraband, or evidence of a crime is concealed on the
body of the person to be searched
. Searched within jails and similar facilities under
Mil.R.Evid. 314(h) if reasonably necessary to maintain
the security of the institution or its personnel
l Searched incident to lawful apprehension under
Mil.R.Evid. 315
An examination of the unclothed body under this
rule should be conducted whenever practical by a person
of the same sex as that of the person being examined,
provided, however, that failure to comply with this
requirement does not make an examination an unlawful
search within the meaning of Mil.R.Evid. 311.
A reasonable nonconsensual physical intrusion into
the mouth, nose, and ears may be made when a visual
examination of the body is permissible. Nonconsensual
intrusions into other body cavities may be made under
the following categories.
For purposes of seizure—When there is a clear
indication that weapons, contraband, or other evidence
of a crime is present, to remove weapons, contraband,
or evidence of a crime discovered if such intrusion is
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