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exigencies of the situation require an immediate
determination of probable cause, with no time to use the
form, make a record of all facts used and actions taken
as soon as possible after the events have occurred.
Finally, probable cause must be determined by the
person who is asked to authorize the search without
regard to the prior conclusions of others on the question
to be answered.
No conclusion of the authorizing
official should ever be based on a conclusion of some
other person or persons.
The determination that
probable cause exists can be arrived at only by the
officer charged with that responsibility,
E X E C U T I O N O F
THE
SEARCH
AUTHORIZATION— Mil.R.Evid. 315(h) provides
that a search authorization or warrant should be served
upon the person whose property is to be searched if that
person is present. Further, the persons who actually
perform the search should compile an inventory of items
seized and should give a copy of the inventory to the
person whose property is seized. If searches are carried
out in foreign countries, the rule provides that actions
should conform to any existing international
agreements. Failure to comply with these provisions,
however, will not necessarily render the items involved
inadmissible at a trial by court-martial,
Probable Cause Searches Without Prior
Authorization
As discussed earlier, there are two basic categories
of searches that can be lawful if properly executed. Our
discussion to this point has centered on those types of
searches that require prior authorization. We will now
discuss those categories of searches that have been
recognized as exceptions to the general rule requiring
authorization before the search. Recall that within this
category of searches there are searches requiring
probable cause and searches not requiring probable
cause.
Exigency Searches
This type of search is permitted by Mil.R.Evid.
315(g) under circumstances demanding some
immediate action to prevent removal or disposal of
property believed, on reasonable grounds, to be
evidence of a crime.
Although the exigencies may
permit a search to be made without the requirement of
a search authorization, the same amount of probable
cause required for search authorizations must be found
to justify an intrusion based on exigency. Prior
authorization is not required under Mil.R.Evid. 315(g)
for a search based upon probable cause under the
following circumstances:
Insufficient time—No authorization need be
obtained where there is probable cause to search and
there is a reasonable belief that the time required to
obtain an authorization would result in the removal,
destruction, or concealment of the property or
evidence sought. Although both military and civilian
case law, in the past, have applied this doctrine almost
exclusively to automobiles, it now seems possible that
this exception may be a basis for entry into barracks
and apartments in situations where drugs are being
used. The Court of Military Appeals found that an
OOD, when confronted with the unmistakable odor of
burning marijuana outside the accused’s barracks
room, acted correctly when he demanded entry to the
room and placed all occupants under apprehension
without first obtaining the CO’s authorization for his
entry. The fact that he heard shuffling inside the
room, and was on an authorized tour of living spaces,
was considered crucial, as well as the fact that the unit
was overseas. The court felt that this was a present
danger to the military mission, and thus military
necessity warranted immediate action.
Lack of communication—Action is permitted in
cases where probable cause exists and destruction,
concealment, or removal is a genuine concern, but
communication with an appropriate authorizing official
is prevented by reasons of military operational
necessity. For instance, where a nuclear submarine, or
a Marine Corps unit in the field maintaining radio
silence lacks a proper authorizing official (perhaps due
to some disqualification on neutrality grounds), no
search would otherwise be possible without breaking
the silence and perhaps endangering the unit and its
mission.
Search of operable vehicles—This type of search
is based upon the United States Supreme Court’s
creation of an exception to the general warrant
requirement where a vehicle is involved. Two factors
are controlling.
First, a vehicle may easily be
removed from the jurisdiction if a warrant or
authorization were necessary; and second, the court
recognizes a lesser expectation of privacy in
automobiles. In the military, the term vehicle includes
vessels, aircraft, and tanks, as well as automobiles,
trucks, and so on. If probable cause exists to stop and
search a vehicle, then authorities may search the entire
vehicle and any containers found therein in which the
suspected item might reasonably be found. All this
can be done without an authorization.
It is not
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