SEARCH AND SEIZURE
1. The military rules of search and seizure are found in the Military Rules of Evidence,
printed in the Manual for Courts-Martial. Searches may only be made under certain
circumstances. These circumstances include:
a. Search Authorized by a Commander (Rule 315). A commander may order
the search of Soldiers or property within his/her command, however certain requirements
must be met in order to do so. The commander must have probable cause that the search
will turn up evidence of a crime or contraband, and that probable cause must exist before
the search is ordered by lawful authority. The commander should seek the advice of the
OSJA prior to ordering a search.
b. Search at the Time of Apprehension (Rule 314g). A Soldier may be
searched when lawfully apprehended. Further intrusive searches such as strip searches
should only be performed under reasonable circumstances. This should only occur if no
other type of searches is sufficient. If a commander feels that a strip search is necessary,
the OSJA should be contacted and consulted prior to such a search being conducted.
c. Search Incident to a Lawful Stop (Rule 314f). When a Soldier is temporarily
stopped (detained) by proper authority, a limited search for weapons may be conducted if
the official detaining the Soldier has a reasonable suspicion to believe the Soldier may be
carrying or concealing a weapon and he/she feels that he/she is in threat of bodily harm
from the suspect.
d. Consent to Search (Rule 314e). A search is lawful if it is made with the non-
coerced, voluntary consent of the Soldier. In securing consent it is important that the
person desiring to conduct the search not use difference in rank or position to coerce
consent or the consent will be invalid.
e. Search to Prevent the Removal or Destruction of Criminal Goods (Rule
315g). If there is probable cause to believe that criminal goods or other evidence are about
to be removed or destroyed and there is no time to obtain a search authorization, then a
lawful search may be conducted. The reason for the imminent destruction or removal of
goods or evidence for this type of search must be explainable.
f. Inspections (Rule 313). Evidence of a crime discovered during an
inspection conducted to ensure proper health, welfare, and morale of the troops
may be seized and used in later administrative and criminal proceedings. However,
commanders are cautioned that an "inspection" for the primary purpose of
obtaining evidence may later be determined to be a "search" instead of an
"inspection," and evidence improperly obtained under the guise of an inspection
may be precluded from being considered as evidence in a criminal proceeding.
Since this type of inspection is pre-planned, consultation with OSJA is advised.
g. Coordination With Civilian Authorities. In some instances involving alleged
misconduct by Soldiers, the commander may have to determine whether to take action or
to allow the civilian authorities to handle the alleged crime. The commander should
contact the OSJA.
Looking for more documents like this one? AskTOP.net Leader Development for Army Professionals
APPENDIX B
