The Specificit, Required in Military Search Warrants

• Author: By Captain Howard C. Eggers
• Pages: 01

Th 9 a, title diseifsses a iieed place to be searched and the th

iilitarlj practices, establish cei tnin that tke standards of specifcity nmst be aiipliad to the place, the ~eisoii.a,id the thing.

1. INTRODUCTION

Historically. the Fourth Amendment to the Unitedstitutian is a product of the abuses which British offion the American colonists by means of general warranof ass1stance.l To combat these abuses, the draftersstitutian adapted the fourth ammdment which prohibita unreasonable searches and seizures and proiides that w.wrant9 to search are valid only if there is probable cause far their irsunnce and they specifically describe the place to be searched and the thlnps to be seized.'rical bases for the amendment, the Su.s 1886, noted that it wyds intendfd to proate, governmental inva~ions "of the sane-

"... " .

1 Bard v United Scater. 116r.5616, 624.630 (188G), R'arden V. Haiden, 387 U.8 294. 301 (1967)

us COUST amend. I\'

3 Boyd Y. United State?. 116 US. 616, 650 I18863

first emphasized the protection of the "hard concept rather than "privacy." It tied protection to propertzing the validity of searches in terms of congeographic areas and granting more protection to certain piace-than to others.'

A THE ROLE OF THE SE.ARCH 1TARRIZT

Sirme the first clause of the fourti: :.meudnent pmsi reasonable searches, reasonableness 13 theboth civilian and military courts use iiheSuch a standard. of coiirse, must ardirarhoc basisera1 or exploratory search so endaneels the right of priiac: that it cau!d never be reamiable -

Hoaeter. the courts are IT. agreement that

105 F 2d 11: , ;!h

SPECIFICITY

It is the role of the search warrant to prerent the general or exploratory search : and while some warrantless searches have been found to be reasonable under the first clause of the fourth amendme~~t,'~searches under the autharlty of warrants must conform to the requirements of the amendment's second clause. Such \\anants must be iswed only upon probable cause and must ~ p e ~ ~ f i ~ a l l r describe the place to be searched and the things to be ieized."

The Supreme Court of the United States has always considered the use of a search warrant to be the best means of limiting an intrusion into an individual's privac3r.1s More recently the United States Court of Military Appeals has also expressed its opinion that written authorizations to search are very desirable,'e even though written warrants are not required under the Uniform Code of 3Iilitars Justice." The court has clearly stated that it would like to see written search authorization, and there is a poasibilitr that it might make such authorizations mandatory at some time in the future.'

In partial response to the Court of Xilitary Appeals' expressed Preference for written authorizations to search, the Department of Armr recently promulgated Chapter 14 to Army Regulation 27-10 This chapter authorizes the issuance of written search warrents h> military judges.'- Calliarnla. 39; C.9. 762 (196Y), Chambers Y. Dlaroner.

TAL IITERPRETATIOV, 38-46 (19

te:tmar? Ian. after the eier.tr ia-e traniplred

-8 Army Reg. So. 21-10, Chap. 14 (ChanCe 60. 9. 18 July 1972). The:egalh?l of such an anthormation il beyond the scope of thw them Language in iaragraph 152. IIAXUAL

FOR COURT~-XARII*L, 1969 (Rei'. ed), however,

Even though the new chapter does not pmhibit search authorizations by commanding office1-8,~~it is very likely that the military will increasingly rely upon warrants to avoid the difficulties caused by the uae of the commanders' oral authorizations. For example, the Supreme Court has required that warrants be issued by an independent magistrate.21 The Court discussed the reason far this rule in Johnsox v. United States: 21

The pant o i the Fourth Amendmcnt, rhieh often IS not graspedby zeslous officei.;, is not that if deniel law enforcement the supnortof the usual initrenerE which reasonable men draw from evidenceIt? protection C Y ~ S I S ~ ~ in requiring rhst thore inferences be drawnby B neutral a',d detached magistrate inifead of being judged b)the officer engaged ~n the often competitive enterprise of ferretinpout crime. Any assumption that evidence sufficient to avpport a mngirtrate'r disinterested determination to ISSW B search warrantwill justify the offieera ~n making B search without a warrant uould reduce the Amendment to B nullzty and leave pcapie's home3 secureonly ~n the direretian of police affieers . . . rhen the right of p r w ~ ~ y mvst reasonably yield to the right a i rearch 13, BI B rnle, to be decided by a judicial officer, not by a policeman or Government enforcement agent -4

In Coolidge v. Ne% the Court enforced this rule by invalidating a search warrant iasued by the State Attorney General who was supervising a murder investigation. Condemning a practice which showed that warrants were rarely Bought from independent mapistrates, Mr. Justice Stewart said :

. . . pr~seeutorr and policemen .mpIy cannot be asked to malntaln the requisite nevfrality with rerard to their OW" inve4tigatmns -the "eompetitire enterpiire" that must rightly engage their dingle-minded attention >:

The State argued that a system which "permitted a law enforcement officer himself to issue a warrant was one of those 'workable rules governing arrests, searches and seizures to meet the practical demands of effective criminal investigation and law enforce- Itstel that searcher conducted under the authority of B lawful search war. rant %re lauful. Thia language indicates that someone must have the authority to issue warrants, and that searches conducted under the suthorlty of a warrant, issued through an appropriate Procedure, would be deemed ''reason-able" searcher under the fourth amendment and the UN~FORM

CODE (IF

MILITARY JIIITICE. 20 Army Reg. No. 27-10, para. 14-1 (Change No. 8, 19 July 1972).21 See Note 15, ~upra.22 333 U.S. 10 (1848).28 Id. at 13.14.24 403 U.S. 443 (1871). Sea a180 Shadwiek V. City of Tampa, 407 U.S.

346 25 Coolidge V. New Hampshire, 403 U.S. 443, 450 (1971)

(1872).

ment,'"2q but Mr, Justice Stewart stated that such a method clearly violated the fourth amendment: 21

The security of one'! prnvacy againit arbitrary Intrusion by the police -which IS at the core of the Fourth Amendment -

1% bane

to B free somet) IT is therefore implicit in "the concept of ordered liberty'' . . The knock at rhe door, vherher by day OT by night,as 2 arehdi to ~1 rearch wthou! authorlh of law but mlelv on the authority of the palice, did not need rhe commentary of recent history to be condemned.'"

The Court of Military Appeals now generally treats a search authorized by a commanding officer a8 the equivalent of a search under the authority of a warrant, to be measured by the standards applied by civilian courts.zD As a result, the commanding officer ha3 been treated as the equivalent of a magistrate; hawever, it may not be long before the neutrality and independence of the commanding officer are challenged. Considering the Cooltdge Court's strong condemnation of a method allowing warrants to be issued by enforcement agents, it is doubtful that a commanding officer, responsible as he is for discipline and the protection of government pro pert^,^' will meet the criterion of neutrality. It is likely, therefore, that mom emphasis will be placed on the issuance of search \%-arrant8 by military judges to moot the troublesome question of the commander's impartiality.32

B THE 1.MPORTASCE OF SPECIFICITYSince an added emphasis on warrants issued by military Judges is likely, it ia important to examine the nature of a warrant, to ascertain rules which will enable judges to draft warrants suffi-ciently limited in scope to be valid under the fourth amendment but sufficiently broad to authorize an effective search. It is this requirement that a warrant be adequately specific which enables courts to protect the right of individual privacy against aver. broad searches, ahile at the same time recognizing the govern-ment's legitimate need to conduct limited searches.38

Id. p"0rlnp Justice Frankfurter ~n Wolf L Calarada. 338 r 3 25, Unired Starer v Davenport, 14United Stater Y Harrsoak, 15 L-.S.C

United States 1. Hartaook, 1631 Army Reg No 190-22, para. 2-1 (12 June 1910).32 Army Reg. ho. 27-10. Chap. 11 (Change No 8, 18 July 1872)

See Johnion 7 United States, 333 C S 10 (184s). concerning the need to balance the right of p ~ w ~ c y against ri.e desire for effective law

enforcement.

The recent promulgation of Chapter 14, Army Regulation 27-10, makes this an especially opportune time to analyze the specificity requirement. This analysis relies heavily on federal civilian cases. There are three reasons for the reliance.

First, since the military has used written warrants infrequently, ihere are only a few military decimons dealing with the subject of specificity.34 Second, Chapter 14's language, requiring that the warrant "command the person to conduct the search to search forth\Tith the person OY place named for the property specified,"ae is exactly the samr: as the language used in Federal Rule of Criminal Procedure 41.58

Since this language i8 identical, it would seem that warrants issued under Chapter 14 should generally comply with the standards applicable to federal civilian warrants." Third, it is difficult to deduce a specificity standard from the military cases involving search authorizations because these cases have usually been decided on the basis af the reasonableness of the search, blurring any distinction between probable cause and spe~ificity.~~

This blurring, of course, is a natural result of the fact that military authorizations to search have ordinarily been requested and given or~lly.~$

The cirilian practice of using a warrant that is separate from the request and supporting affidavit facilitates a discrete analysis of the probable came and spcificity issues.

3. SPECIFZCZTY IN MILITARY SEARCHES

   Probable cause and specificity are two distinct requirements that opelate...