A search authorization "may be issued on the basis of a written or oral statement, electronic
message, or other appropriate means of communication. Information provided in support of the request
for authorization may be sworn or unsworn. The fact that sworn information is generally more credible
and often entitled to greater weight than information not given under oath should be considered." (AR
27-10, paragraph 9-8a.) A military "search authorization" is, then, different from a search warrant
issued by a civilian judge. U.S. v. Stuckey, 10 MJ 347 (CMA, 1981). Under Rule 41(c)(2) of the
Federal Rules of Criminal Procedure, for example, a civilian search warrant must be based on sworn
affidavits/testimony.
The military search authorization must particularly describe the place to be searched and the
person or things to be seized. A search, then, "must be limited in two ways: to a particular area and to
a particular object or objects." U.S. v. Lusk, 21 MJ 695 (ACMR, 1985). Exploratory searches "have
long been condemned." The person who executes the authorization and conducts the search should
know where he may look, and what he is to look for; and what he may seize. The authorization must
"contain at least a description by general terms of the class, or classes, of property to be searched for
and seized." U.S. v. Hartsook, 35 CMR 263 (CMA, 1965).
An authorization "should be executed within 10 days after the date of issue." (AR 27-10, paragraph
9-10a.) The information must not be too stale. U.S. v. Johnson, 21 MJ 553 (AFCMR, 1955). "Facts
and circumstances which would suffice to constitute probable cause on the date of the happening
obviously would lessen with the passage of time. What is sufficient to establish probable cause on one
day may not be sufficient to do so on a later date." In other words, the fact that property was in a certain
place three weeks ago does not necessarily indicate that it is, there now. Is there, then, any basis for
the conclusion that the accused continues to possess it now? If not, the information is stale, and
probable cause is lacking. U.S. v. Bright, 2 MJ 663 (AFCMR, 1976).
In terms of staleness, an important issue is the nature of the property. U.S. v. Queen, 26 MJ 136
(CMA 1988). Is it the type of property that would probably have been quickly disposed of, or is it the
type the accused would be expected to keep in his home for a long period of time? U.S. v. Lovell, 8 MJ
613 (AFCMR, 1979). In one case, the accused's possession of a substantial amount of hashish
justified a reasonable conclusion that it was still there 3 days later. U.S. v. Land, 10 MJ 103 (CMA,
1980). This was not true, however, for a delay involving a month. U.S. v. Crow, 41 CMR 384 (CMA,
1970).
4. The Role of the Commander--Authorization v. Participation. A commander who authorizes a
search may observe it. "An otherwise impartial authorizing official does not lose that character merely
because he or she is present at the scene of a search or is otherwise readily available to persons who
may seek the issuance of a search authorization; nor does such an official lose impartial character
merely because the officer previously and impartially authorized investigative activities when such
previous authorization is similar in intent or function to a pretrial authorization made by the United
States District Courts." (MRE 315d.)
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