Search and Seizure Flashcards
Fourth Amendment does what
protects people from unreasonable searches and seizures by the government.
however, is not a guarantee against all searches and seizures.
Rule 311.
• General rule. “Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if
… the accused had a reasonable expectation of privacy in the person, place or property searched”
what is rule number 311
evidence obtained from unlawful search or seizure is inadmissible
Rule 313.
• General rule. “Evidence obtained from lawful inspections and inventories in the Armed Forces……
is admissible at trial when relevant
what is rule 313
Evidence obtained from lawful inspection is admissable
purpose of inspection of unit in whole or in part
an examination to determine
that the command is properly equipped,
functioning properly,
maintaining proper standards of readiness,
sea or airworthiness,
sanitation and cleanliness;
and that personnel are present, fit, and ready for duty.
during inspection can you order body fluids?
yes
An order to produce body fluids, such as urine, is permissible in accordance with this rule”
are Searches for evidence considered a legal inspection
no
since primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings
Examinations to locate and confiscate weapons or contraband. are these inspections. why?
“An inspection may include an examination to locate and confiscate unlawful weapons and other contraband”
define a “search”
a quest for evidence, conducted upon the belief that evidence of a certain crime can be found in a certain location. Generally, searches require probable cause and evidence legally obtained or seized from a lawful search may be used in a trial or other legal proceedings
example of an inspection
health and comfort or welfare check, is performed for military purposes
T/F
An inspection must not be used as subterfuge (deception) for a search.
True
is an Inspections not aimed at the discovery of evidence for use in a criminal trial, but produces contraband as an unintended result . is it admissable?
yes admissible
will usually be deemed valid by the courts.
what is rule 314 Searches Not Requiring Probable Cause
“Evidence obtained from reasonable searches not requiring probable cause is admissible at trial when relevant and not otherwise inadmissible under these rules or the Constitution of the United States as applied to members of the Armed Forces”
examples of Searches Not Requiring Probable Cause
border searches
entering exiting us installations
government searches
Normally, 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, but 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”
explain consent searches
Evidence of a search conducted without probable cause is admissible if conducted
with lawful consent”
Explain Voluntariness in consent searches
“To be valid, consent must be given voluntarily.
Does Mere submission to the color of authority of personnel performing law enforcement duties or acquiescence in an announced or indicated purpose to search ……….
is not a voluntary consent”
During a lawful stop, it is permissible to conduct a “frisk”
yes
to ensure person being stopped does not have a weapon or pose a danger. based upon the “reasonable belief” person is armed and presently dangerous.
Searches incident to a lawful stop. when is it lawful
when conducted by a person authorized to apprehend … or others performing law enforcement duties AND when the person making the stop has information or observes unusual conduct that leads him or her reasonably to conclude in light of his or her experience that criminal activity may be afoot. The stop must be TEMPORARY and investigatory in nature
lawful stop Vehicles. will evidence be admissible
evidence is admissible if seized in the course of a search for weapons in the areas of the passenger compartment of a vehicle in which a weapon may be placed or hidden, so long as the person lawfully stopped is the driver or a passenger and the official who made the stop has a reasonable suspicion that the person stopped is dangerous and may gain immediate control of a weapon
Searches incident to apprehension. when is it admissible?
“Evidence is admissible if seized in a search of a person who has been lawfully
apprehended or if seized as a result of a reasonable protective sweep
Searches incident to apprehension. when is it admissible?
“Evidence is admissible if seized in a search of a person who has been lawfully
apprehended or if seized as a result of a reasonable protective sweep
A lawful search incident to apprehension may
include a search for weapons or destructible evidence in the area within the immediate control of a person who has been apprehended.
define immediate control
area in which the individual searching could reasonably believe that the person apprehended could reach with a sudden movement
difference between apprehend and stopped
A person who has been apprehended loses their liberty and is under the control of the apprehending authority, while a person who has been stopped is not subject to those same conditions.
Explain Rule 315. Probable Cause Searches
“Evidence obtained from reasonable searches conducted pursuant to a search warrant or search authorization, or under the exigent circumstances described in this rule, is admissible at trial
is Probable cause for searches different from probable cause for apprehension?
yes
Search authorization is….
express permission, written or oral, issued by competent military authority to search a person or an area and seize evidence
Search warrant is………
express permission to search and seize issued by competent civilian authority
who may authorize search authorization
CO or military judge
Who can conduct Search authorizations. “,
Any commissioned officer, warrant officer, petty officer,
noncommissioned officer, and, when in the execution of guard or police duties
Probable cause to search exists when there is a reasonable belief
that the person, property, or evidence sought is located in the place or on the person to be
A search authorization may be based upon hearsay evidence in whole or in part. A determination of probable cause will be based on upon any or all of the following……..
written statements communicated to the authorizing official;
oral statements communicated to the authorizing official in person, via telephone, or by other
appropriate means of communication; or
such information as may be known by the authorizing official that would not preclude the
officer from acting in an impartial fashion”
determining probable cause is whose responsibilty
the COs
when does probable cause exist
probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be
A search authorization may be based upon hearsay evidence in whole or in part. A determination of probable cause will be based on upon any or all of the following……..
written statements communicated to the authorizing official;
oral statements communicated to the authorizing official in person, via telephone, or by other
appropriate means of communication; or
such information as may be known by the authorizing official that would not preclude the
officer from acting in an impartial fashion”
Explain when exigencies are admissable
reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction, or concealment of the property or evidence
is military operational necessity and exigency
yes
form to document search authorization/execution
Record of Authorization for Search
form to document probable cause
Affidavit for Search Authorization
do search authorizations have to be in writting
no but recommended
Rule 316. Seizures
“Evidence obtained from reasonable seizures is admissible at trial
Seizure of property or evidence:
Based on probable cause. “Evidence is admissible when seized based on a reasonable belief that
… the property or evidence is an unlawful weapon contraband, evidence of crime, or might be
used to resist apprehension or to escape”
how to seize Abandoned property
“Abandoned property may be seized without probable cause
how to seize Government property.
seized without probable cause and without
a search warrant or search authorization
unless the person to whom the property is issued or assigned has a reasonable expectation of privacy
who may seize
Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police duties
