Can a Commander Authorize Searches & Seizures in Privatized Housing Areas?

• Author: Major Jeff A. Bovarnick
• Pages: 02

MILITARY LAW REVIEW

Volume 181 Fall 2004

CAN A COMMANDER AUTHORIZE SEARCHES & SEIZURES IN PRIVATIZED HOUSING AREAS?

MAJOR JEFF A. BOVARNICK1

It is then said that, apart from the Code, under immemorial custom a military commander has virtually unlimited authority to authorize searches on a military station . . . and that he must possess that power for the safety and discipline of his command and his subordinates.2

1. The Case of the Smoking Gun

   1. The Crime Scene

      Screams are silenced by gunshots in the installation housing area. Sergeant First Class (SFC) Jones hears the shots coming from the vicinity of Staff Sergeant (SSG) Smith's house next door and he immediately calls 911. When SFC Jones looks out his window, he sees someone running across the street into SSG Brown's quarters. Law enforcement officials arrive, enter the Smith quarters after no one answers the door, and find Mrs. Smith lying dead on the floor with a gunshot wound to her head. Sergeant First Class Jones informs the lead agent on the scene that he believes

      1. Judge Advocate, U.S. Army. Presently assigned as Chief, Military Justice, 82d Airborne Division, Fort Bragg, North Carolina. LL.M., 2002, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia; J.D., 1992, New England School of Law; B.B.A., 1988, University of Massachusetts at Amherst. Previous assignments include: 101st Airborne Division (Air Assault), 1993-1996 (Trial Counsel, 1994-1995; Chief, Operational Law, 1995-1996); Fort Bragg Field Office, U.S. Army Trial Defense Service, 1996-1997 (Defense Counsel); Joint Readiness Training Center, Fort Polk, Louisiana, 1998 (Observer/Controller); Fort Sam Houston, Texas, 1999-2001 (Chief, Criminal Law Division, 1999-2000; Chief, Client Services Division, 2001). Member of the bars of Massachusetts, the Court of Appeals for the Armed Forces, and the Supreme Court of the United States. Previous publications: Perpich v. U.S. Dep't of Defense, Who's in Charge of the National Guard?, 26 NEW ENG L. REV. 453 (1991); Trying to Remain Sane Trying an Insanity Case: United States v. Captain Thomas S. Payne, ARMY LAW., June 2002, at 13 (co-author, Captain Jackie Thompson).

      2. Saylor v. United States, 374 F.2d 894, 899 (Ct. Cl. 1967).

      1

      SSG Smith is in the field with his unit, and also about the person he saw running into SSG Brown's quarters after he called 911. About five minutes after SFC Jones called 911, SSG Brown, the occupant of the quarters across the street, also called the Military Police (MP) station and reported hearing gunshots. After numerous police vehicles arrived on the scene, SSG Brown comes out of his quarters, approaches SFC Jones and the agent interviewing him, and makes the unsolicited statement that he was outside, and after he heard the shots, he ran into his house to call the police. Within the hour, after confirming that SSG Smith was in the field with his unit, SSG Brown has become a suspect in Mrs. Smith's murder. The lead agent asks SSG Brown if he owns a gun and SSG Brown says that he does, but that it is in storage. The agent asks SSG Brown if he can go into his quarters to have a look around, but SSG Brown denies the request, tells the agent his wife is out of town, and then refuses to answer any more questions and asks for an attorney. The agent apprehends SSG Brown and orders his quarters sealed. After ensuring the crime scene is secure, the agent briefs the Garrison Commander on the situation and requests authorization to search SSG Brown's quarters. One additional fact: the quarters are in privatized housing.

   2. The Smoking Gun

      The lead agent prepares a written affidavit and personally briefs the garrison commander on all of the facts known to him. Finding probable cause, the garrison commander authorizes a search of SSG Brown's quarters for a gun. During the course of his search, the agent finds what turns out to be a recently fired, unregistered handgun stashed in the attic crawl space of SSG Brown's quarters. Other than SSG Brown's admission that he was in the area at the time the shots were fired and SFC Jones' corroborating identification, there is no other evidence linking SSG Brown to the crime scene at the Smith quarters. The only evidence linking SSG Brown to the murder of Mrs. Smith is the smoking gun found in his attic.

   3. The Motion to Suppress

      In a pretrial motion, the defense moves to suppress the handgun, claiming its discovery was the result of an illegal search. The defense bases it claim primarily on the commander's lack of authority over the land. The defense claims the "installation housing" area is not actually installation housing, but rather a private enclave on the federal installation.

      The defense has attached the privatized housing contract to its motion demonstrating that the land was in fact conveyed to private developers by the government. A second defense exhibit is a copy of the rental agreement between SSG Brown and the private landlord. The lease requires SSG Brown to pay rent to the private landlord, but it also contains a clause authorizing the commander the right to enter the premises to inspect the property. It is the latter clause that the defense argues the government required the private landlord to put that clause in the leases and the government cannot, via a contract clause, bargain away a third party's constitutional right against an unlawful search. Swamped with more important motions in the capital murder case against SSG Brown, the lead trial counsel gives this suppression motion a cursory glance and assigns it to an assistant trial counsel. In a one paragraph response, the government acknowledges the facts as laid out by the defense and simply cites Military Rule of Evidence (MRE) 315(d)(1)3 and the authority of commanders to authorize searches over property situated on a military installation.4

2. Introduction

   This article examines the well-established concept of a commander's authority5 to authorize searches over property he controls6 in conjunction with the relatively new concept of privatized housing on military installations.7 Specifically, does a military commander control privatized housing? The issue of control is essential to a commander's authority to issue search authorizations. In the privatized housing arena, installation land can be leased or conveyed outright to a private entity. When housing is privatized, does the commander still control the land? While the general concept of privatized housing is for the government to relinquish control of its housing operations, is the intent for commanders to relinquish control over the privatized housing areas? If so, then a commander who does not control privatized housing on the installation cannot authorize a search therein. If the commander does not have control over privatized housing, yet authorizes a search therein, then the result would be an illegal search

   3. MANUAL FOR COURTS-MARTIAL, UNITED STATES, MIL. R. EVID. 315(d)(1) (2002)

      [hereinafter MCM]. A commander "who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to military law or the law of war" has the power to authorize a search pursuant to this rule. Id. (emphasis added).

      and potentially a violation of the service member's Fourth Amendment guarantee against unreasonable searches.8

      This article's primary focus is to explore the issues associated with a

   4. This hypothetical attempts to portray a realistic fact pattern where a commander is called upon to authorize a search authorization in a privatized housing area. This fact pattern focuses solely on the commander's control over the privatized housing which is located within the borders of the installation. While search and seizure cases can present numerous issues, the narrow issue presented here is a probable cause search under MRE 315(d).

      This article does not address MRE 314 searches that do not require probable cause. "Government property may be searched under [MRE 314] unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein at the time of the search." Id. MIL. R. EVID. 314(d). Although privatized housing is not government property (see infra sec. III), under MRE 314(d) even government housing quarters assigned to military members cannot be searched without probable because all such housing occupants clearly have a reasonable expectation of privacy in such living quarters. Such quarters are easily distinguished from barracks. See infra sec. VI.B. Additionally, the hypothetical fact pattern eliminates any issue of consent. If SSG Brown voluntarily consented to the search of his quarters, or his spouse was present to consent to a search, then a non-probable cause search is authorized under MRE 314(e). Since SSG Brown was apprehended outside his quarters and no one was home in his quarters, there are absolutely no MRE 314(g) circumstances authorizing a search incident to lawful apprehension of any area inside his quarters. See MCM, supra note 3, MIL. R. EVID. 314(g)(2) ("A search may be conducted for weapons and destructible evidence, in the area within the immediate control of a person who has been apprehended."); MCM, supra note 3, MIL. R. EVID. 314(g)(3) ("When an apprehension takes place at a location in which other persons might be present who might endanger those conducting the apprehension . . . a reasonable examination may be made of the general area in which such other persons might be located.").

      Within MRE 315(d) probable cause searches, there also could be numerous issues that are not addressed in this article. The hypothetical fact pattern assumes the garrison commander is the proper authority who, if he controlled the property, could authorize the search (MRE 315(d)(1)). Next, the law enforcement officials have supplied the commander with the proper basis to make a probable cause...