Louisiana Administrative Code › Title 41 - MILITARY FORCES OF THE STATE › Part II - Military Justice › Chapter 3 - Investigating and Obtaining Evidence › Section II-308 - Authority to Search

Current through Register Vol. 50, No. 6, June 20, 2024
A. A
				search and seizure is lawful in the following situations:
1. Apprehension. A Service member may be
				searched at the time and place of a lawful apprehension. The purpose of the
				search is to discover weapons and to prevent the destruction of evidence. The
				search is limited to the person of the Service member and the area within his
				immediate control. For example, the area within his immediate control may
				include a nearby open locker within his reach, but not the entire
				room.
2. Searches Authorized by the
				Commander
a. Areas subject to search. A
				commander has authority to conduct or direct a search of any person or property
				located in a place under his control if there is probable cause to justify the
				search. Searches of areas outside the commander's immediate control should be
				undertaken only after coordination with the proper command authority.
b. Requirement of Probable Cause. Before a
				commander may authorize a search of a person or area in a place under his
				control, he must at least have probable cause to believe:
i. a crime is being committed or has been
				committed;
ii. the person to be
				searched committed or is involved in the crimes;
iii. the evidence of the crime is now where
				the commander plans to search; and
iv. the information is credible and the
				source of the information is reliable.
c. Probable cause to search exists when there
				is a reasonable belief that a person, property, or evidence sought is located
				in the place or on the person to be searched. A search authorization may be
				based upon "hearsay" evidence in whole or in part. There must be more than mere
				suspicion in the mind of the commander, but absolute proof beyond a shadow of a
				doubt is not required. In other words, probable cause lies somewhere between
				suspicion and actual knowledge. The commander must personally conclude, on the
				basis of information presented to him, that the contraband or evidence of a
				crime is at that time likely to be in the possession of the individual or on
				the premises to be searched. The commander's determination that probable cause
				exists must be reasonable and must be based on facts. It may not be based only
				on the conclusions of others. It is of no importance that a CID agent, a first
				sergeant, or an informant is aware of sufficient facts to provide probable
				cause, unless those facts are given to the only individual who orders or
				authorizes the search - the commander. The commander must believe that the
				person furnishing the information is reliable and that he had a sound basis for
				his information. In case of doubt, the commander should consult a Judge
				Advocate. DA Form 3745 should be used by the commander when authorizing a
				search.
d. Delegation of Authority.
				A unit commander may delegate his authority to search. The delegation of this
				authority should be limited to those persons whose experience,
				responsibilities, and temperament will insure a fair and impartial
				determination of probable cause. Commanders should consult the DRU SJA in order
				to delegate his authority to search.
3. Consent Searches
a. Probable cause is not required when a
				person with possession or control of property freely gives his consent to the
				search of his property. Because consent to the search is a waiver of the
				constitutional right to be free from unreasonable searches, the government must
				be able to produce clear and convincing evidence that the consent was voluntary
				and not a mere submission to authority. In order to establish voluntary
				consent, it is recommended that the suspect be told:
i. the specific items the search is expected
				to uncover;
ii. the specific area
				the search will cover;
iii. that he
				has a legal right to withhold his consent;
iv. that he cannot be forced to submit to a
				search unless it is properly authorized; and
v. that any evidence found in the search can
				be used against him.
b.
				It is advisable for a commander to have an unbiased and trustworthy witness
				present when a service member consents to a search. Should consent become an
				issue at the trial, the witness can verify the nature of the consent. If a
				consent search uncovers evidence of criminal conduct, the evidence will be
				admissible at trial. It does not matter that the consent was obtained without
				probable cause.
4. Open
				View. Evidence of criminal conduct which is in open view or located in a public
				area, such as a day room, may be seized without consideration of the
				requirements of consent or probable cause.
5. Search Warrant. Evidence may be seized
				pursuant to a search warrant issued by a proper magistrate. In the event that a
				search warrant is deemed necessary, the commander should consult a Judge
				Advocate.