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immediate action, and here the reasonable alternative is
a search without prior authorization.
Although this
second category is more closely scrutinized by the
courts, several valid approaches can produce admissible
evidence.
Probable Cause Searches Based Upon Prior
Authorization
Military search authorization—This type of prior
authorization search is akin to that described in the text
of the Fourth Amendment, but is the express product of
Mil.R.Evid. 315. Although the prior military law
contemplated that only officers in command could
authorize a search, Mil.R.Evid. 315 clearly intends that
the power to authorize a search follows the billet
occupied by the person involved rather than being
founded in rank or officer status. Thus, in those
situations where senior noncommissioned or petty
officers occupy positions as officers in charge (OICs) or
positions similar to command, they are generally
competent to authorize searches absent contrary
direction from the Secretary of the Navy.
In the typical case, the commander or other
competent military authority, such as an OIC, decides
whether probable cause exists when issuing a search
authorization. Although there is no per se exclusion of
COs, courts will decide, on a case-by-case basis,
whether a particular commander was in fact neutral and
detached. Mil.R.Evid. 315(d) provides that:
An otherwise impartial authorizing official
does not lose that character merely because he
or she is present at the scene of a search or is
otherwise readily available to persons who may
seek the issuance of a search authorization; nor
does such an official lose impartial character
merely because the official previously and
impartially authorized investigative activities
when such previous authorization is similar in
intent or function to a pretrial authorization
made by the United States district courts.
J U R I S D I C T I O N TO
AUTHORIZE
SEARCHES.— Before any competent military
authority can lawfully order a search and seizure, he or
she must have the authority necessary over both the
person and/or place to be searched, and the persons or
property to be seized. This authority, or jurisdiction, is
most often a dual concept—jurisdiction over the place
and over the person. Any search or seizure authorized
by one not having jurisdiction is a nullity, and even
though otherwise valid, the fruits of any seizure would
not be admissible in a trial by court-martial if objected
to by the defense.
Jurisdiction Over the Person.— It is critical to any
analysis of the authority of the CO over persons to
determine whether the person is a civilian or military
witness.
Civilians— The search of civilians is now permitted
under Mil.R.Evid. 315(c) when they are present aboard
military installations.
This gives the military
commander an additional alternative in such situations
where the only possibility before the Mil.R.Evid. was to
detain that person for a reasonable time while a warrant
was sought from the appropriate federal or state
magistrate. Furthermore, a civilian desiring to enter or
exit a military installation maybe subject to a reasonable
inspection as a condition precedent to entry or exit.
Such inspections have recently been upheld as a valid
exercise by the commander of the administrative need
for security of military bases. Inspections will be
discussed later in this chapter.
Military— MiL.R.Evid. 315 indicates two categories
of military persons who are subject to search by the
a u t h o r i z a t i o n o f
competent
military
authority— members of that CO’s unit and others who
are subject to military law when in places under that
CO’s jurisdiction; for example, aboard a ship or in a
command area. There is military case authority for the
proposition that the commander’s power to authorize
searches of members of his or her command goes
beyond the requirement of presence within the area of
the command, In one case, the court held that a search
authorized by the accused’s CO, although actually
conducted outside the squadron area, was nevertheless
lawful. Although this search occurred within the
confines of the Air Force base, a careful consideration
of the language of Mil.R.Evid. 315(d)(1) indicates that
a person subject to military law could be searched even
while outside the military installation. This would hold
true only for the search of the person, since personal
property, located off base is not under the jurisdiction of
the CO if situated in the United States, its territories, or
possessions.
Jurisdiction Over the Property.— Several topics
must be considered when determining whether a CO can
authorize the search of property. It is necessary to
decide first if the property is government-owned and, if
so, whether it is intended for governmental or private
use. If the property is owned, operated, or subject to the
control of a military person, its location determines
whether a commander may authorize a search or seizure.
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