INTRODUCTION
"The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures shall not be violated, and no warrant shall be issued, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be searched
and the person or things to be seized." Underlying the above, the Fourth Amendment to the United
States Constitution, are two basic principles. First, the Fourth Amendment is a prohibition against
searches and seizures. This subcourse will examine in detail the types of searches/seizures which the
appellate courts have found to be reasonable, and those which have been branded as unlawful and
unreasonable. Second, the Fourth Amendment states a preference for the use of a search warrant. In
the military, we use the term "search authorization" to refer to "an express permission, written or oral,
issued by competent military authority to search a person or an area for specified property or evidence
or for a specific person and to seize such property, evidence, or person." (Military Rules of Evidence
315(b) 1). A "search warrant" fulfills a similar purpose, but is "issued by competent civilian authority"
(MRE 315(b) 2). We will examine the search authorization/warrant in much detail later. For now, just
realize that there is a general preference for the use of a search authorization/warrant. The appellate
courts feel that this ensures that the police officer's evaluation of the facts will be reviewed by a neutral
and detached third party.
A prior authorization/warrant is not needed in every case, as the courts recognize various
exceptions to this general preference. We will examine each of these exceptions later. The general
preference, however, remains. If you have time and it is practical to do so, obtain a search
authorization. This is always the safest way to proceed.
We will shortly be examining the Fourth Amendment, and the rules which govern lawful searches
and seizures. Before doing that, however, we need to obtain a basic understanding of when the Fourth
Amendment applies.
PART A - THE APPLICABILITY OF THE FOURTH AMENDMENT
1. General. What triggers the Fourth Amendment? When does it apply? Does it ALWAYS apply,
regardless of who does the search, and regardless of where one is searching? As an example, does it
apply to a search done by one's spouse or children? Does it matter where they are searching? Does
the Fourth Amendment apply if the area being searched is a city dump? These are the questions that
we will now examine.
In order for the Fourth Amendment to apply, we must have two things. First, the search/seizure
must have been done "by a person acting in a governmental capacity" (RCM 311a.) Second, the
accused or suspect must have "a reasonable expectation of privacy in the person, place or property
searched." (RCM 311(a) 2.) We will examine both of these concepts in detail shortly. First, however,
you must understand that BOTH must be present in order for the Fourth Amendment to apply. If only
one is present, that is not sufficient, so the Fourth Amendment will not be triggered. Remember, we
need BOTH.
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