There is a similar provision for denying access to a National Defense Area. It is to have defined
boundaries and is to be marked with a physical barrier and warning signs. The basis, again, is military
necessity. Persons can be removed if they "threaten the orderly administration of the emergency site."
(Paragraph 6f.)
The installation commander "will cause any person who enters a restricted area without authority to
be brought immediately before proper authority for questioning." (AR 190-13, paragraph 6-6a.) This
person may be searched, and will be advised of his rights prior to questioning. The questioning will be
done as soon as is possible. The person will be detained for only the minimum time necessary. (AR
380-20, paragraph 7a.) If the violation was "knowing," persons who are not subject to the UCMJ "will
be taken without delay to civilian law enforcement officials." (AR 380-20, paragraph 7b.) Under the
Internal Security Act of 1921 (50 USC Section 797), it is a federal criminal offense for anyone to violate
any order or regulation "declared by a military commander to protect or secure military installations or
facilities with respect to...safeguarding military installations or facilities against destruction, loss, or
subversive activity."
f. Gate searches. An installation commander has the inherent power to conduct inspections of
personnel and property within his control. The purpose is to determine and ensure the security, military
fitness, and good order and discipline of the unit, organization, installation, etc. (AR 210-10, paragraph
2-23a). This is also a lawful inspection within the meaning of MRE 313. The power of the installation
commander includes the "authority to direct authorized guard personnel to inspect their persons, their
property, and vehicles at entry and exit points of the installation." (AR 210-10, paragraph 2-23(c) 1.)
Commanders will state in the authorization establishing the gate search the purpose(s) of the
program, the scope of the inspections, and the means by which the program is to be executed
(paragraph 2-23(c) 2).
The commander "will issue specific and complete instructions," which will include the time and
location of the inspection, and "the method of selecting personnel and vehicles to be stopped and
inspected."
Before looking at some specific court decisions in this area, it is important to understand why you
need to know this specific area of the law. During a gate inspection, evidence is frequently discovered.
If it is a properly conducted inspection, the evidence will be admissible at a subsequent trial. If the gate
inspection was not properly set up, however, the evidence will NOT be admissible. As is so often true
in this area, whether or not a later criminal prosecution will be possible is determined by the
reasonableness of your actions. Also, a gate inspection frequently leads to another type of search,
which results in the discovery of evidence. As an example, a consent search may be performed at the
gate. Other types of lawful searches, even though performed at or near an entry or exit point, "have
legal basis independent of the commander's authorization to inspect." (AR 210-10, paragraph 2-
23(c)(3) a.) Consent is only one example where this may happen. Another would be an actual probable
cause search.
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