Louisiana Administrative Code › Title 41 - MILITARY FORCES OF THE STATE › Part II - Military Justice › Chapter 3 - Investigating and Obtaining Evidence › Section II-307 - Search and Seizure

Current through Register Vol. 50, No. 6, June 20, 2024
A.
				General. A unit commander may lawfully seize the property of a person in his
				unit; however, that an unlawful search which violates a Service member's rights
				will likely result in seized items being excluded from evidence and therefore
				inadmissible during a court-martial. Because the law of probable cause is often
				difficult to apply, Commanders shall consult with a Judge Advocate prior to
				taking action. This not only avoids unlawful searches and protects the Service
				member's rights, but it also insures that physical evidence will be admissible
				in a trial by court-martial.
B.
				Lawful Searches and Seizures. A commander may authorize a search if he is
				reasonably certain that an offense has been committed and that items connected
				with the offense will be found in the location he intends to search.
C. Search of Persons, Vehicles, or Residences
				not located on Military Property. Searches shall not be conducted of Persons,
				Vehicles, or Residences not located on Military Property. If a commander has a
				reasonable basis to search a service member's person, vehicle, or residence not
				located on Military Property, he shall immediately contact his servicing Judge
				Advocate in order to obtain a civilian search warrant and the assistance of
				local law enforcement.
D. Search of
				Government Quarters or Residences located on Military Property. Prior to
				undertaking a search of Government Quarters or Residences located on Military
				Property, commanders and investigators shall immediately contact his servicing
				Judge Advocate in order to obtain a search warrant from a Military
				Judge.
E. Inspections. Search and
				seizure requirements do not limit the commander's authority to conduct
				legitimate inspections including unannounced shakedown inspections. The purpose
				of an inspection is to promote the health, welfare, preparedness, and safety of
				the personnel in the unit. For example, the commander may want to insure that
				his service members have their equipment cleaned, maintained, and properly
				stored and that they have no dangerous articles such as ammunition carried from
				the range. The inspection must apply uniformly to all Service members in the
				area and may extend to an examination of all their belongings kept within their
				government living area. Although an inspection need not be previously
				announced, it must have a legitimate purpose and may not be a mere subterfuge
				or excuse for what is really an unlawful search. The commander who decides to
				conduct his "inspection" upon hearing of a barracks larceny, and then starts
				his inspection near the living area of his prime suspect probably will not
				later convince the military judge that he was "inspecting" rather than
				"searching." Since an inspection is not based on the commander's belief a crime
				has been committed, it is not a search. Evidence of criminal conduct discovered
				during the course of a legitimate inspection may be admitted at a trial by
				court-martial.
F. Inventories. When
				a service member is AWOL, about to be confined, or detained by civilian
				authorities, an inventory of the member's personal belongings is required.
				Evidence obtained as a result of this inventory is admissible in a
				court-martial. Having a disinterested witness participate in this inventory is
				advisable.
G. Consent Searches. A
				person may consent to a search of his person or property, or both, unless
				control over such property has been given to another. A person may grant
				consent to search property when the person exercises control over that
				property. Consent may be limited in any way by the person granting consent,
				including limitations in terms of time, place, or property, and may be
				withdrawn at any time [See also para 3-8(C).] The issue of whether or not
				consent has been granted is a question of fact to be determined after a
				thorough examination of the circumstances relative to the alleged
				consent.
H. Searches of Government
				Property. Government property may be searched unless the person to whom the
				property is issued or assigned has a reasonable expectation of privacy therein
				at the time of the search. Under normal circumstances, a person does not have a
				reasonable expectation of privacy in government property that is not issued for
				personal use. Wall or floor lockers in living quarters issued for the purpose
				of storing personal possessions normally are issued for personal use; however,
				the determination as to whether a person has a reasonable expectation of
				privacy in government property issued for personal use depends on the facts and
				circumstances at the time of the search. [See also para 3-8(c).]
I. Searches of Open Fields or Woodlands. A
				search of open fields or woodlands does not require the issuance of a search
				warrant or search authorization.
J.
				Search of Person or Vehicle Located on Military Post, Reservation or
				Installation. When properly notified, usually by a warning sign posted
				conspicuously at the post, reservation or installation gate, individuals
				entering or leaving such post, reservation or installation give implied consent
				to the search of their persons, possessions, and vehicles and may be so
				searched. This authority includes Louisiana National Guard armories and
				facilities, under the provisions of La.
				R.S.
				29:28.1.
K. Canine Searches. If a commander has a
				reasonable belief that illegal drugs are present in the area under his command,
				that commander may authorize a canine search of either the barracks or POV's
				located in that area and any contraband found upon alert of the canine is legal
				and admissible evidence.
AUTHORITY NOTE:
				  Promulgated in accordance with
				  R.S.
				  29:11(F).