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Page Title: The Requirement of Probable Cause
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If a commander is faced with a situation in which action on a search authorization request is impossible because of a lack of neutrality or detachment, a superior commander  in  the  chain  of  command  or  another commander who has jurisdiction over the person or place should be asked to authorize the search. THE   REQUIREMENT   OF   PROBABLE CAUSE.— As discussed earlier, the probable cause determination is based upon a reasonable belief that a crime was committed and certain persons, property, or evidence related to that crime will be found in the place or on the persons to be searched. Before a person may conclude that probable cause to search exists, he or she should have a reasonable belief that the information giving rise to the intent to search is believable and has a factual basis. The   portion   of   Mil.R.Evid.   315   dealing   with probable cause recognizes the proper use of hearsay information  in  the  determination  of  probable  cause  and allows such determinations to be based either wholly or in part on such information. Probable  cause  must  be  based  on  information provided to or already known by the authorizing official. Such information can come to the commander through written documents, oral statements, messages relayed through normal communications procedures such as the telephone or by radio, or may be based on information already known by the authorizing official. In all cases, both the factual basis and believability basis should he satisfied. The factual basis requirement is met when an individual reasonably concludes that the information, if reliable, adequately apprises him or her that the property in question is what it is alleged to be and is located where it is alleged to be. Information is believable when an individual reasonably concludes that it is sufficiently reliable to be believed. The method of application of the tests will differ, however,   depending   upon   circumstances.   The following examples are illustrative: l  An  individual  making  a  probable  cause determination  who  observes  an  incident  firsthand  must determine only that the observation is reliable and that the property is likely to be what it appears to be. For example, an officer who believes that he or she sees an individual  in  possession  of  heroin  must  first  conclude that  the  observation  was  reliable;  for  example,  whether his  or  her  eyesight  was  adequate  and  the  observation  was long enough, and that he or she has sufficient knowledge and experience to be able reasonably to believe that the substance in question is in fact heroin. .  An  individual  making  a  probable  cause determination  who  relies  upon  the  in-person  report  of an informant must determine both that the informant is believable and that the property observed is likely to be what the observer believes it to be. The determining individual  may  consider  the  demeanor  of  the  informant to help determine whether the informant is believable. An individual known to have a clean record and no bias against the suspect is likely to be credible. .  An  individual  making  a  probable  cause determination who relies upon the report of an informant not   present   before   the   authorizing   official   must determine both that the informant is believable and that the  information  supplied  has  a  factual  basis.  The individual making the determination may use one or more of the following factors to decide whether the informant  is  believable. Prior  record  as  a  reliable  informant—Has  the informant given information in the past that proved to be accurate? Corroborating detail—Has enough detail of the informant’s  information  been  verified  to  imply  that the  remainder  can  reasonably  be  presumed  to  be accurate? Statement  against  interest—Is  the  information given by the informant sufficiently adverse to the pecuniary or penal interest of the informant to imply that the information may reasonably be presumed to be  accurate? Good citizen—Is the character of the informant, as a  person  known  by  the  individual  making  the probable  cause  determination,  such  as  to  make  it reasonable  to  presume  that  the  information  is accurate? The factors listed previously are not the only ways to   determine   an   informant’s   believability.   The commander may consider any factor tending to show believability, such as the informant’s military record, his or her duty assignments, and whether the informant has given  the  information  under  oath. Mere allegations, however, may not be relied upon. Thus, an individual may not reasonably conclude that an informant is reliable simply because the informant is described as such by a law enforcement agent. The individual making the probable cause determination should  be  supplied  with informant’s past actions to specific  details  of  the allow that individual to 4-13

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