3. Search Incident to Apprehension.
a. What is an apprehension? Before examining the specific rule (that a lawful apprehension
carries with it the right to search the person apprehended), we need to pause for a moment and
examine what constitutes an "apprehension." It is the "equivalent of arrest," and "is the taking of a
person into custody." (RCM 302(a) 1.) It "involves substance rather than form. No specific words or
any words at all need be used." U.S. v. Repp, 23 MJ 589 (AFCMR, 1986). Telling a suspect to freeze
and get up against a wall is sufficient. U.S. v. Walker, 13 MJ 982 (ACMR, 1982). It is normally done
"by clearly notifying the person to be apprehended that the person is in custody. This notice should be
given orally or in writing, but it may be implied by the circumstances" (MRE 302(d) 1.)
b. Who may apprehend? Any person subject to the UCMJ may be apprehended by a military
"law enforcement officer." This is defined to include "security police, military police, master-at-arms
personnel, members of the shore patrol, and persons designated by proper authorities to perform
military criminal investigative, guard, or police duties, whether subject to the code or not, when, in each
of the foregoing instances, the official making the apprehension is in the execution of law enforcement
duties." If an enlisted person apprehends a commissioned or warrant officer, he "should make an
immediate report to the commissioned officer to whom the apprehending person is responsible." (RCM
302(b) l.) Also, commissioned, warrant, petty, and noncommissioned officers may apprehend persons
subject to the UCMJ. (RCM 302(b) 2.) Noncommissioned and petty officers not otherwise performing
law enforcement duties should not apprehend a commissioned officer unless directed to do so by a
commissioned officer or in order to prevent disgrace to the service or the escape of one who has
committed a serious offense. Remember, an apprehension must be based on probable cause. It does
not require a prior authorization, however, unless it is made in a "private dwelling."
Persons subject to the UCMJ, then, may be apprehended by "law enforcement officials." This term
includes civilian personnel who are acting in such a capacity (DAJA-AL 1979/3255). What about
civilians who commit crimes on post? Is there any authority to apprehend them? AR 600-40,
paragraph 3, refers to a "citizen's arrest power." It is far better, however, not to rely on this. States
differ in terms of their "citizen's arrest power." Also, a police officer acting under such a power is doing
so in a private capacity. Consequently, he may be subject to a lawsuit. A better basis for
apprehending civilians on post is under the "agency" concept.
The installation commander is responsible "for maintenance of law and order at the installation."
(AR 210-10, paragraph 2-9.) "When a military policeman, acting as the agent of the installation
commander, restrains or apprehends a civilian for an on-post offense, the military policeman is acting in
an official capacity." (DAJA-AL 1979/2975.) Further, "DA civilian law enforcement personnel and
guards, when authorized by the local commander, can apprehend and detain DOD civilian employees
and non-DOD civilians when on post and for offenses committed on post under the general authority of
the installation commander to maintain law and order on the installation."