PART D - EXCEPTIONS TO THE AUTHORIZATION/WARRANT REQUIREMENT
1. General. A search authorization/warrant is not ALWAYS required. The general rule is to get
one if it is feasible to do so. The courts have recognized situations in which the police may conduct
searches/seizures without a prior authorization. You must, therefore, understand what these
exceptions are and how they apply. They are set forth in MRE 314 and MRE 315(g). The exceptions
are the result of the courts' recognition of the practical difficulties which confront our police on the
street, and also reflect common sense solutions to some very real problems.
a. General. "Searches may be conducted of any person or property with lawful consent."
(MRE 314(e) 1.) U.S. v. Ward, 12 MJ 846 (ACMR, 1982), involved a search of family quarters that was
done without a prior authorization. As we have seen, this is not lawful (in the absence of some
exigency, or emergency). Here, however, the court decided that the accused had consented to the
search. Consent, then, is a recognized exception to the authorization/warrant requirement.
b. What is consent? Consent "must be given voluntarily. Voluntariness is a question to be
determined from all the circumstances...Mere submission to the color of authority of personnel
performing law enforcement duties or acquiescence in an announced or intended purpose to search is
not a voluntary consent." (MRE 314(e) 4.) Consent "must be shown by clear and convincing evidence."
(MRE 314(e) 5.) In one case, for example, the accused had been in a car accident. He was both
intoxicated and injured. The court concluded that the government had not shown the accused to even
understand what he was doing. Consequently, the government was unable to prove that he had
consented to a search. U.S. v. Cockerm, 15 MJ 879 (ACMR, 1983).
A person may consent even though he is under apprehension. U.S. v. Decker, 37 CMR 17 (CMA,
1966). The issue is whether consent is the product of free will, or the result of coercion, threats, or
other improper influences. U.S. v. Childress, 2 MJ 1292 (NCMR, 1972). Custody does not, by itself,
prevent a finding of consent. The issue, remember, is whether it is an act of free will. In other words,
does the accused have the capacity to exercise a free choice? Was there any coercion? The mere fact
that an officer, even the accused's commander, is the one who asks for consent, does not by itself
constitute coercion. U.S. v. Wallace, 11 MJ 445 (CMA, 1981). The consent must, of course, be "freely
and voluntarily given," which is an issue to be determined from examining all of the surrounding
circumstances. U.S. v. Middleton, 10 MJ 123 (CMA, 1981).
In U.S. v. Jenkins, 24 MJ 846 (AFCMR, 1987), the court upheld a finding of consent. The accused
argued that the police were themselves nonthreatening, but said that the presence of a drug detection
dog was a "menacing threat." The dog handler testified that it was a nonaggressive dog, and the court
found no evidence of coercion, either actual or implied.