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LESSON 4

LEGALITY OF SEARCHES WITHOUT PRIOR AUTHORIZATION

OVERVIEW

LESSON DESCRIPTION:

In this lesson you will learn you can properly conduct a search, or seize evidence, without need for a prior authorization, or search warrant.

INTRODUCTION

The United States Constitution guarantees to each citizen the freedom from unreasonable searches and seizures. The terms of this protection may seem vague but the Federal Courts, in particular the Supreme Court, have spent many years interpreting the Constitution and clarifying the meanings of its various guarantees. As a military police NCO, it is necessary to be sufficiently familiar with these interpretations so that you can properly perform your enforcement duties. For the purposes of this lesson, you must understand when you can properly conduct a search or seize evidence, without need for a prior authorization or search warrant.

PART A - PROBABLE CAUSE

"Probable cause" is a term in the Constitution which has sometimes caused some problems of interpretation. The term is defined, for purposes of the military, by the Manual for Courts-Martial, United States, 1984, as follows:

• "Probable cause to apprehend exists when there are reasonable grounds to believe that an offense has been or is being committed and the person to be apprehended committed or is committing it." RULE FOR COURT-MARTIAL (RCM) 302(c).

• "Probable cause to search exists when there is reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched." MILITARY RULE OF EVIDENCE (MRE) 315(f)(2).

These definitions agree with the definitions of the Supreme Court and are generally applicable to questions involving the Fourth Amendment. The term is extremely important because usually searches are legal only when based upon probable cause.

Military commanders are empowered to authorize a search of any person or place under their command. This includes anywhere on a military installation by the installation commander. Additionally, any military judge, or military magistrate, can authorize a search anywhere on the installation. These authorizations equal a civilian search warrant issued by a judge or magistrate. As with the warrant, a search authorization must be based upon probable cause, as defined in MRE 315. Although you may frequently engage in searches authorized by an appropriate authority, this lesson primarily covers those situations where a search is legal without authorization. This is more difficult, because if there is an authorization, you need only comply with its terms and your search is likely to be proper.

The concept of probable cause is essential to understanding the lawfulness of a search. It is not a technical, abstract concept, to be understood only by members of the legal profession. It deals instead with probabilities and common sense; i.e., the factual and practical considerations of everyday life on which reasonable and prudent people act. A law enforcement officer must make common sense judgements about human behavior. Probable cause involves such conclusions that are based upon the facts known to the officer; i.e., his understanding to the totality of the circumstances.

In general, a law enforcement officer can obtain probable cause in one of two ways. The first is simply by personal observation; i.e., he sees the crime occur. The second is when he receives information secondhand, from another person, such as an informant or eyewitness. In assessing such information, the officer must consider the reliability of the informant (why is he to be believed?) as well as the informant's basis of knowledge (how does he know these things?). Stated differently, he should ask the informant two basic questions: (1) Why should I believe you; and (2) how do you know? What is involved here is not a rigid or mechanical analysis, but a weighing of probabilities. A deficiency in one of the two areas may be overcome by a particularly strong showing in the other. Even if BOTH are weak, the details provided may be corroborated, or substantiated, by the personal observations of the officers. This is true even if the facts corroborated are not themselves criminal in nature. The overall question is whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in the place to be searched. If so, there is probable cause. A few examples will illustrate these principles.

One morning you receive an anonymous phone call. The caller tells you that PVT Schmedlap has 40 bags of marijuana in his room. He is planning to take them to the field next week. Based on this information, would a reasonable person believe that a search of PVT Schmedlap's room would reveal the presence of marijuana? The answer is no. First, we know nothing about the reliability of the informant. Is he an honest citizen reporting a crime? Or is this Schmedlap's worst enemy, simply trying to get him in trouble by falsely reporting a crime? Does he have a motive to lie? There is no basis for finding him reliable. Second, we know nothing about his basis of knowledge, i.e., how does he know these things? Did he see for himself? Did someone tell him? If so, who? Is he simply passing on a rumor? Did he verify it? We simply don't know. Finally, there is no corroboration. Actually, in the example given, there are really no independent facts for the officer to corroborate or verify. A few questions to the informant could have made the difference, but they were not asked. As it stands, the information provided is insufficient to constitute probable cause.

You receive a phone call, and this time the caller identifies himself. It is PVT Smith, an informant who has given you information about drug offenses in the past. He has done this on five prior occasions, and the information has always been accurate. He is a good troop and you find him reliable and trustworthy. Is this enough? Here, you can sufficiently establish the reliability of the informant. At the same time, however, you do not know his basis of knowledge; i.e., how does he know these facts he has just given you? Did he see for himself or did someone else tell him? Under the totality of the circumstances test used by the courts, this information would be marginally adequate to establish probable cause. It is still weak, however, and there is a chance that a court might find it insufficient. The problem could easily have been avoided simply by asking PVT Smith where he got his information. This is a close case, made so by your failure to ask a few additional questions. The point is, why take the chance? By asking the informant the necessary questions, you can eliminate the unnecessary element of risk. Why gamble?

You receive a phone call from an unidentified informant, who says that PVT Schmedlap has 40 bags of marijuana in his room. He tells you he knows this, since he was in the room last night. Is this enough? Here, we have a variation on the prior example. We do not know about the reliability of the informant, and don't even know who he is. We do, however, know his basis of knowledge; i.e., he saw for himself. In a case like this, get as much information as you can about the informant (which is always important in these situations). Even if he won't reveal his identity, find out why he is reporting Schmedlap. Does he have a grudge? Is he an honest citizen? Why won't he identify himself? Is he afraid? Also, can the informant identify anything about Schmedlap's room? This would serve to substantiate his claim that he was there. Can he describe it? If so, it would strengthen his claim to having been there (as opposed to his simply passing on rumors). By asking these additional questions, you could establish a much stronger case. Without them, the case is very weak, and a court might suppress the evidence. Once again, why take the risk? Get the facts. Without them, it is very difficult (and sometimes impossible) to establish probable cause.

You receive an anonymous call. The voice states the following: "PVT Schmedlap is taking leave this week, and is going to Florida. He is going to buy a bunch of marijuana to sell in the unit, and will bring it back in his blue VW van, which has the license number XYY 112. He sells the stuff regularly out of the parking lot of his unit, A/1/60 Infantry. He is transferring to Germany next month, so he is going to bring back a really large quantity so he can set himself up with enough money to get into business over there." Is this enough? Here, you don't know the identity of the informant, and cannot really tell if he is reliable. Also you don't really know his basis of his knowledge; i.e., how does he know all this? Did Schmedlap tell him? Is it a rumor? There is little here from which you can assess either reliability or basis of knowledge. Standing alone, this information would probably not be sufficient to constitute probable cause. There is only a small chance that a court would rule otherwise. Why take the risk when you could easily eliminate it?

In the example just given, you do some checking. A/1/60 Infantry does have a Schmedlap assigned to it, and he is scheduled to take leave this week...to Florida. The unit vehicle registration roster shows that he owns a VW van, license number XYY 112, which is blue in color. He will return from leave on Sunday. The unit has a copy of his PCS orders, showing he is to be assigned to the Federal Republic of Germany shortly after he returns from leave. Now is this enough? Here, you have taken a weak case and have turned it into a much, much stronger one. You have taken the details provided by the anonymous informant, and have corroborated them by your own independent observations. This is true even though details are themselves not criminal and standing alone, would seem innocent. After all, simply owning a blue VW is no crime, nor is going to Florida or PCSing to Germany. If the informant gives you six details however, and you can substantiate five of them, it is sufficiently likely that the sixth detail is also true. The totality of circumstances, therefore, would cause a reasonable person to believe that it is likely that Schmedlap is going to commit a crime of possession of marijuana, and that evidence of the crime will be found in the place to be searched. There is, then, probable cause to search his vehicle and to apprehend Schmedlap. Although both the reliability and basis of knowledge aspects were initially very weak, your corroboration sufficiently strengthened both.

PART B - CONSENT SEARCHES

The right to be free from unreasonable searches is a personal right and can be freely waived. That is, the individual can permit you to search his person, or property, with no probable cause, or even suspicion. This is a "consent search." The only requirement is that the consent must be voluntarily given, without coercion or implied or actual threats or promises. You need not particularly suspect an individual of any criminal conduct in order to ask his consent to search, and you certainly need not have probable cause to believe you will find any evidence from the search. As is true with determining the existence of probable cause, the question of consent voluntarily given will depend upon all of the circumstances present. Consider the following situations:

• You stop an individual for a traffic violation. The individual's demeanor makes you suspicious and, after writing out the citation, you return his driver's license with the citation, and ask him "Would you mind if I searched your car?" The driver shrugs his shoulders, says, "Sure, OK with me" gets out, and hands you the keys. You then conduct a complete search of the vehicle, and find a quantity of marijuana in the glove box.

This is a proper consent search, and the marijuana is properly seized and admissible as court evidence. It is not necessary to tell the individual that he has the right to refuse to consent, or his rights against self-incrimination under the Fifth Amendment, or what it is you think you might find from a search. Nor do you need to have any basis for your suspicions. (You need not even have any suspicions, just the desire to search the car.) Note that the consent need not be in writing, or even verbal. The driver's actions, in this case, evidenced his consent to the search.

• Assume that, after you have prepared the citation, you return to the vehicle and tell the driver to get out. You then, retaining his driver's license, tell him, I want to search your car. Let me have the keys, please." He shrugs his shoulders and hands you the keys, saying, Go for it." You search the vehicle and, again, find the marijuana. This is not a proper consent search. The driver in this case did not consent, he merely submitted to your apparent authority, "accepting the inevitable," so to speak. Although the driver needn't be advised of his rights prior to a consent search, the consent must be given freely. Remember, the mere acquiescence to a show of authority is not consent.

Consent can sometimes be granted by someone other than the person against whom the evidence will be used. A spouse can consent to the search of the family home, even if it is evidence against the other spouse that is sought, and found. When a married couple share a home, each of them has an equal right to access to and control over the property. Each has an equal right to consent to a search of the property. This can be true with other shared living arrangements. Two roommates, that share equally in the control over the quarters, can consent validly to a quarters search. An area which one of the individuals retains as his private, personal area, to which the other individual has no legitimate access, however, is safe from a search consented by the other individual.

PART C: STOP AND FRISK

Probable cause is required before you can apprehend an individual for a crime. In some cases, however, it is necessary to stop an individual long enough to investigate a suspicious situation, without having probable cause. This can happen, if you have a "reasonable suspicion," based upon clearly articulable facts, that the individual is committing or about to commit a crime. The requirement for a basis of "articulable facts" is to protect the public from unnecessary interference with freedom of movement based on nothing more than an investigator's hunch. The officer must be able to express facts which will convince a reasonable person that the officer, based upon his experience and training, could legitimately suspect that criminal activity was afoot and the individual stopped is involved. As part of this "investigative stop" you can sometimes conduct a type of search, for your own safety. If there is a legitimate basis for an investigative stop, and you also have an equally reasonable suspicion that the individual whom you have stopped is presently armed and dangerous, then you can pat down his outer clothing, looking for a weapon. If you feel a weapon, you can seize it, while you complete your investigative stop, in order to protect yourself. Consider this example:

While on patrol last night, you observe an individual jogging through an area which you know to be frequented by drug dealers. You stop the individual and ask for identification. He tells you to "bug off," and resumes jogging. You forcibly detain him, and pat him down. You feel what, based upon your extensive experience, you believe to be a plastic bag of drugs. You reach into his pocket and pull it out, and it is, of course, a baggie of marijuana.

This is not a lawful seizure. The marijuana will not be admissible in court. You have no legitimate basis for detaining the individual, because there was nothing happening to lead a reasonable individual to believe that the jogger was committing or about to commit a crime. Just being in an area which is the scene of frequent criminal activity is not enough. (Despite a common belief to the contrary, a citizen, even a military citizen, does not have to identify himself, or otherwise cooperate with the police, unless the police have grounds for detention of the citizen. Therefore, the jogger's response of "bug off" was perfectly proper, because you have no business holding him from his exercising.) Also, having stopped the jogger, you certainly had no basis to suspect him of being armed and dangerous. In fact, you suspected him of possessing drugs, and that is what you looked for. The "frisk" which is authorized in conjunction with a stop is limited only to a frisk for weapons, for the officer's safety.

PART D - SEARCH INCIDENT TO APPREHENSION

If you have probable cause, you can apprehend an individual, and this limits his freedom so that he loses, to a great extent, his right to be free from searches. Once his person has been seized, it is questionable whether a search of his person or property is any more of an intrusion on his freedoms. Therefore, once you have lawfully apprehended an individual, you are authorized to search him, and the area within his immediate reach. The theory for this exception to the warrant requirement of the Constitution was to allow the arresting officer to protect himself from the suspect's seizing a weapon and attacking the officer, and to allow the officer to prevent the suspect's seizing and destroying evidence. The present rule still acknowledges this basis for the exception. The law does not ask the officer if he had any reason to believe that there was a weapon, or any evidence, within reasonable reach of the suspect. Nor is the officer limited to seizing only weapons or evidence of the crime for which the suspect was apprehended. As one example, someone apprehended for shoplifting may be searched and any contraband found (evidence of shoplifting, drugs, weapons, etc.) may be seized.

This exception to the warrant requirement has an especially significant result if you apprehend someone who is the occupant of a motor vehicle, whether it be the owner, the operator, or simply a passenger. In such a case, you may search the entire passenger compartment, boxes, bags, clothing, luggage, and any other open or closed containers found within this area. In view of the basis for this type of search, courts do not allow searches of locked containers. A search is not, however, authorized in either the trunk or under the hood based on this theory. Since the occupants cannot normally be expected to reach into these areas either to grab evidence or weapons, a search incident to apprehension is subject to this limitation. If you want to search these additional areas (beyond the scope of a search incident to apprehension), you need probable cause in order to do so. That situation would be different from the type of search discussed here (incident to the apprehension). When one has been apprehended, the search may follow regardless of whether or not there is any specific reason to believe that any evidence will be found during the search. The search simply follows from the apprehension, although it is subject to the limitations noted above.

As a further protection if you apprehend an individual in a location wherein accomplices might be hidden, you may make a quick check of the entire area to locate them in order to avoid their attacking you or destroying evidence. This could happen if you apprehend him in his home, for example, or at the site of a break-in. This does not authorize a thorough search of the entire building, but only a cursory check. Anything found, however, can be seized under the "plain view" theory.

PART E - PLAIN VIEW

The basic factor in determining whether a search is reasonable is whether the searcher has violated an area in which the suspect has a reasonable expectation of privacy. An individual's home certainly falls within such an area, and is particularly protected. As with consent, however, the individual can relinquish his expectation of privacy by his conduct. If evidence is located in an area where it can be observed and seized without violation of a protected area, then a law enforcement officer need not ignore the evidence, but can seize it and it can be used as evidence.

This "plain view" exception to the warrant requirement is a seizure doctrine, and does not authorize an otherwise unlawful search. Consider:

You are driving through the post housing area in your patrol sedan and you observe, through the living room window of one of the quarters, what is obviously a growing marijuana plant. Incensed at this flagrant violation of the law, you immediately stop your sedan, enter the quarters, and seize the plant. While in the quarters, you also find a large bale of harvested marijuana, setting in plain sight in the living room, and you also seize this.

These seizures are not lawful, because you had to enter a protected area to carry them out. In order to seize under the plain view exception, you must:

• Be in a location where you have a legal right to be (e.g., the public street).

• Observe something which you have probable cause to believe is evidence of a crime, including contraband.

• Be able to seize the evidence without entering a private, protected area.

You have a warrant to apprehend SGT Schmedlap at his government quarters. The offense is distribution of heroin. When you are admitted to the quarters, SGT Schmedlap is seated on a sofa in his living room. You place him under apprehension, and then search his person. Finding nothing on him, you search the sofa and discover a loaded revolver tucked behind one of the cushions. You then look through the books and magazines on the coffee table in front of the sofa, and discover several small packets of a white powder. Feeling as though you're on a roll, you instruct your partner to stand guard over Schmedlap and his wife while you look over the rest of the quarters. As you walk through the kitchen, you note a shotgun standing in the corner, with a barrel which is obviously too short to be legal. As you are picking this up, you open one of the kitchen drawers and find a large plastic bag of brown powder.

The revolver and the packets of white powder are properly seized, as the result of a search incident to apprehension. They were within the immediate reach of SGT Schmedlap at the time of his apprehension. The shotgun was properly seized, because you had the right to make a cursory check of the quarters for accomplices, and the shotgun was in plain view. The brown powder, however, was illegally seized, since you had no authority to open the kitchen drawer.

Because the area immediately surrounding the home is also within the protection of the "reasonable expectation of privacy," even if you see the plants growing in the quarter's backyard, which is surrounded by a fence, you cannot go over or through the fence to seize the plants.

In such a case, or in the example (a) set out above, you should report your observation to an appropriate official to obtain a search authorization.

PART F - EXIGENT CIRCUMSTANCES

In some circumstances under which you would normally be required to obtain a search authorization/warrant, the law allows you to act without such authority, in order to avoid the loss of evidence. In order for you to search under "exigent circumstances" you must reasonably believe that the delay necessary to obtain authorization would be long enough that the evidence would be lost or destroyed. Consider:

You are working as the CQ of your unit, making your routine rounds through the barracks late one evening. As you walk down the hall, you smell what you clearly recognize as the odor of burning marijuana, and you identify it as coming from room 6. You could return to the orderly room and contact the unit commander with your information and, based upon your experience with the odor of marijuana, the commander would have sufficient probable cause to authorize you to search room 6, looking for the drug. If you take the time to carry out this procedure, however, even assuming that you have no trouble getting in contact with the CO, it is likely that the marijuana will have all been consumed by burning before you can get the authorization and return to the room to search it. The law, therefore, allows you to enter the room without any special authorization, to search for and seize the marijuana.

In order to rely upon exigent circumstances, you must, of course, have probable cause that there is evidence in the area which you intend to search.

The Automobile Exception. A motor vehicle is in a special category, related to exigent circumstances. Because of its mobility, and the chance that evidence inside the vehicle could disappear if not immediately seized, the courts have developed a special exception to the requirement for a warrant. This applies only to apparently operable vehicles, located in public places. If you have probable cause to believe that the vehicle contains evidence of a crime, then you may search the entire vehicle for that evidence, without the necessity of obtaining any official authorization. This exception is based on two factors: The mobility of the automobile and the fact one has a lesser expectation of privacy therein." This, like the "search incident to apprehension," is a "bright line" rule, easy to understand and apply. Although this is commonly referred to as the "automobile exception" it is not, of course, limited to ordinary passenger automobiles, but includes any type of motor vehicle, including motor homes, trucks, motorcycles, etc. Consider:

You are on patrol and observe a vehicle weaving back and forth, varying speeds erratically, and making wide turns. Suspecting a road hazard, you stop the vehicle and, when the driver asks what the problem is, you recoil from the overpowering odor of alcohol on his breath. In accordance with normal policy, and in the interest of the safety of the highway, you apprehend the driver for DWI. You take him out of the car, place him in handcuffs and in the back seat of your sedan, and radio the desk with a report. The desk sergeant tells you to wait for a patrol to take the driver to the station. While you are waiting, you decide to kill time by searching through the vehicle. In the glove box you find a loaded revolver, which violates post regulations. On the floor of the back seat, you find what appear to be marijuana seeds. Upon closer examination, it appears that they have spilled through from the trunk. You then go to the driver, who is really too intoxicated to be fully aware of what is happening, and you ask for his keys, so you can search his car. He hands you his wallet, his handkerchief, and finally his keys, and you unlock the trunk of the vehicle. Inside you find two large plastic trash bags, one of which has a small tear, from which marijuana is spilling. Opening the other, you find pieces of a dismembered body.

All of the evidence is admissible in court. Having lawfully apprehended the driver of the vehicle, you were authorized to completely search the passenger compartment of the vehicle, including the glove box and the back seat, incident to the apprehension. Having found the marijuana seeds on the back floor, you had probable cause to believe that marijuana was contained in the trunk, and because this was an operable vehicle you were entitled to search containers within the vehicle, if they could reasonably contain the evidence you were seeking.

As a military police NCO, you have a special responsibility for enforcing the commander's interest in good order and discipline of his installation. It is expected that your work will assist, even be essential, in the prosecution and punishment of criminals who violate the installation's security. If you follow the rules, the evidence which you uncover as part of your duties will play an important part in this process. If you neglect the rules, and ignore the legitimate rights of the citizens (even the criminals have those rights), then the evidence will be of no value to the judicial system.