Recent Trends in Search and Seizure

• Author: By Captain David McNeill, Jr.
• Pages: 02

Feii; topics have so divided the Supreme Court as the interpretation of the fourth amendment commands con-cerning search and seizure. The standards of "~eason-nbleness" have cered militarv authoritzes no less thnn their civilian counterparts. Focusing on the reasonable-ness concept, the nvthor reviews the agnificant recent developments in several search related areas, including vehicle searches, foreign searches, probable came, and stop and fiisk. Of pnrticvlar znterest to judge advocatesis the discussion of the proposed change in A m y Regulatiom to dlow the mzlitarlj judge to act as a civilian magistrate in issuing search warrants upon probable enuse shown.

The right of the people EO be secure m their persona, houses,papers, and effects sgmn?t unreasonable searches and eeizu~es, rhali not be violated. and no Warrants shall issue, bur upon probable cauie, supparfed by Oath or affirmation. and particularly dencribing the place ta be nearehed, and the persons or things to be seized.'

Interpretation of the fourth amendment has presented ever-recurring problems to the courts. In recent years the lax of search and seizure has been in a state of constant flux. This isin part caused by new problems in the field of criminal justice and in part by the increasing number of searches and seizures made by law enforcement officers.

The basic thrust of the fourth amendment IS that actions of government authorities that result in an intrusion upon the privacy of the citizen, must be based upon reasonable grounds and be carried out in a reasonable manner. The Supreme Court has consistently held that search and seizure issues are to be

*This article was adapted from a thesis presented to The Judge Advocate General's Sehoal, US Army. Charlottesville, Virginia, whde the author was a member of the Sinefeenth Advanced Course. The opinions and eon-dudon% presented herein are those of the author and do nct mecenianly represent the >,.iew% af The Judge Advocate General's Sehoal or any ather gavernmenta1 agency.

**JAGC. U.S. Army, Omee of the Staff Judge Advocate, United States Army, Europe and Seventh Arm) Combat Suppart Command, EA, 1864,Creighton Unlvermty: J.D., ISfii, Unirersity of Rew Mexico, member of the barn of the U.S. Supreme Court, U.S Cavrt of 4iililsry Appealn. Supreme Court of Yew \lexica, U.S. Dmtriet Court, Distrxt of New Mexico, and the U.S. Coun of Military Review

' U.S COTST. amend iv

decided as the amendment itself requires: an the basis of the reasanableness.'

In understanding the reasonableness test, it must be realized that the paramount consideration under the fourth amendment is that the privacy and integrity of the citizen be protected to the maximum extent conmtent with what is necee.sar>- to en-farce the la!

Like their civilian counterparts the military courts hare adapted the rule that search and seizure is a question of reanon and not of technicality. Furthermore, the Court of Military Appeals has held that Supreme Court decisions in this area are binding upon the military.

This article ~ 1 1 discuss recent developments in several areas

of search and seizure. It 11-111 examine these developments in light of the reasonableness test as that term is vieired b5- the federal and military courts The article wili be divided into B

number of topical areas of search and seizure for easier analysis. However, these areas frequently overlap and difficulty may be encountered when sttempting to determine which set of standards to apply ta a given situation.

I PROBABLE CAUSE

A GESERAL

Probable cairn to search exists when there is reamn to believe that the objects sought are located in the place or on the person

'See a. ., Frankfurter, J , in his dissent ~n Vnited States 0. Rabmowtz,

C.S.C 11 A. 397 309, 37 C h1.R 17. 10 (1966)ent 'reeurrinp u3eatians' TO the courts. Amendmenr doei not prohibit all searches and seiiuie~, but only such a% are 'unreasonable' The corstitutianality at a particular search depends 'upon the factsatmosphere of the ear.'" Set 0180 Unxe I.A. 416, 43 C.H.R 216 (19711. In (ACMR 3 Nov 1970). srd

- (ACIR 12 Kav. 10701, rile

SI, nontechnical conception ' Beck L.

In our YEW it is the resaanableners of the ~fficer'a conduct not the label placed upon it by the officer OT the court be,,,w which dictates the rerult. [Hoiier, at 5, and Davis, at 6. of dip opmionn.1

'United State. 1. Penn. 18 O.S.C.M.A. 194, Ib C.P.R. 194 (19681, United States Y. Garlich. 11 U.S.C.XA. 361, 31 C.M.B 334 (18611.

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SEARCH AND SEIZURE

to be searched.: The requirement of probabie cause is essentially an attempt to balance the necessity for police investigation of crime and the right of the citizen to have his privacy uninterrupted. The Supreme Court expressed the philosophy of the probable cause requirement in Bwriegar v. Cnited States:

These long prevailing standard. seek to safegusrd citizens from rash and vnreaionabie interferences rith pwaey and from unfounded charges of crime. They aiio reek ta give fair leevay for enforcing the law ~n the eornmunity's protection Because many situaciow which confront officers in the course of ereeuring their duties are mare or iesl ambiguous. room must be ailowed for Some mistakes on them part. But the rnistaker must be those of reason-sbie men, acting on facts leading sensibly to Their mneimioni of probability. The vule of probable cause 1% a practical nonteehnieal conception affording the best earnpromise that haa been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the offieerr' whim or capnee.

Clearly then, the officer does not hare to prove his case beyond a reasonable doubt to establish probable cause. More than mere suspicion or good faith an his part, however, will be requirdr In determining whether probable cause exists in a given case, 811 of the circumstances must be considerdB

While the thrust of this discussion of probable cause is directed at obtaining a warrant, it must be membered that the probable cause requirements apply to warrantless searches as weli. For example, there is no wmant requirement for a search conducted incident to arrest or to prevent destruction of evi-dence. Yet before those searches ma)- be conducted there must be probable came for the arrest or probable came to believe that the suspect has the evidence in question and is about to destroy it. Thus, deciding what is and what is not probable cause extends to many more areas than search warrant practice. This is extremely important because, though exceptions to the requirement of obtaining a warrant are numerous, stop and frisk is the only exception to the requirement that there be probable cause for the search.

para 152. The differing standard of probable cause to arrest is articulated in Henry V. Vnited States. 361 U.S. 08, 102 (1959). This definition i s frequently quoted ~n federal and mditary deeiaian%. See, e . ~ ,

Cnited States 2..Elwuwd, 10 U.S.C.I.A. 376, 41 C.11.R.

376. 377 11870). '338 U.S 160. 176 119491.

"Henry Y. United Starea, 361 C S. 08 (1919)'Brinegar Y. United States, 338 U.S. 160 (1948).

&i

2. SEARCH WARRA.VTS

   While there are situations which prevent the officer from obtaining a warrant before making an arrest or search, the Fourth Amendment requires that warrants be obtained If at 811 practicable. Federal as well as militar) courts recognize and strongly enforce this requirement. The courts have frequently stated that even though practical exceptions to the warrant requirement exist, searches made pursuant to B warrant are preferred. In a close case, a warrant search may be upheld whereas a "on-warrant search under the same circumstances iwuid not be.'? While warrant practice in the militarr and Federal System8 differ the requirements far probable cause and what must be shown are the same.'.

   The basic rules regarding the procurement of the warrant were laid dawn in Aguiler v T e m ~ and Spinellz v. L'nited States.Recently the rules were re-examined in Cnited States v. Harris." In Aqiiilnv -* two city policemen applied far B warrant to search defendant's home based upon "reliable information from a credible person." They stated that this information caused them to believe that Aguilar had numerous narcotics and drugs in the home The warrant was issued and upon its execution defendant was caught in the act of attempting to dispose of the contraband. The Court found that the affidavit in suppart of the warrant failed to set out any of the "underlying circumstances" necessary for an independent determination by the magistrate that the informant's conclu~ion concerning the location of the contraband was valid. Secondly, the Court held, the officers did not attempt to sumort theii claim that the informant was credible or that

   "See, e,#., Spineill 21. United States, 393 US. 410 (1969): United Stater

   %. Ventresea. 380 U.S 102 (19651 ; Aguilar 11. Texas, 378 U S. 108 (1964) : Jones 9. United Srstes, 362 U.S. 257 (19601, United States U. Riga. ~

   C.M.R. - (AFCPR 30 Oct. 1910)

   In the Federal practice the request for a warrant must be in writing and supported by swain affidswtn. The warrant muat also be ~n writing. FED. R CRIM. PROC.. 41 (1968). In the military a commander may receive evidence of prababie cause orally and without plscing the party under oath. His authority to search may also be oral. Such practice ha? been aevereiy

   that of the Federal courts. See 11, tnjro.

   'United States 8. Hartaaak, 15 U S.C.X.A. 281. 35 C M.R. 263 11965) See abo, Vnited Stares %. Rigs.

   ~~

   C.M.R ~ (AFCMR 30 Oct

   1970). and C B ~ I

   cited therein.'38 USLW 4835 128 June, 1971).

   " Aguilar II. Texas 373 U.S. 108 (1964)86

   SEARCH AND SEIZURE

   his information was reliable. The u7arrant thus failed to meet the requirement for an independent reYie35- of all the facts by the magistrate.

   Spinelli" involved an affidavit submitted by the FBI to obtain a warrant for the search of an...