The court said yes, explaining that the standard requires "only the probability" of criminal activity,
which "is much less rigorous" than the standard governing the admissibility of evidence at a court-
martial. Also, the issue is "not to be confined...by restrictions on the use of their common sense."
Overall, the issue is "whether such (a police officer) in the particular circumstances, conditioned by his
observations and information, and guided by the whole of his police experience, reasonably could have
believed that a crime had been committed by the person to be apprehended." Here, the information led
to an apprehension, as opposed to a search. The probable cause determination/standard for
authorizing a search "has been adopted by the military to apply equally in evaluating probable cause to
apprehend." Under the facts of this case, "the reliability of the informer's information...when tested and
interpreted in a common sense and realistic fashion, without applying the technical requirements of
elaborate specificity once exacted...is...established by sufficient corroboration." U.S. v. Fisher, 5 MJ
873 (ACMR, 1978).
6. The Search of a Private Residence--the Authorization/Warrant Requirement. An apprehension
requires probable cause, which (as we have seen) is the same standard as that applicable to the
authorization of a search. An accused may be apprehended in a public place without a prior
search/arrest authorization (RCM 302(e) 1). The same is true for an apprehension of the accused
outside of a private residence. U.S. v. Davis, 13 MJ 671 (AFCMR, 1982). Entry into a private dwelling,
however, generally requires a prior authorization. There are some exceptions to this general rule that
we will examine later. For now, simply understand the basic rule. The military rule (RCM 302(e) 2) is
taken from the U.S. Supreme Court's decision in Payton v. New York, 63 L. Ed.2d 639 (1980). There,
the Court held that "the Fourth Amendment...prohibits the police from making a warrantless and
nonconsensual entry into a suspect's home in order to make a routine felony arrest."
This is a reflection of the concept that "the home is one's castle." The physical entry into a person's
home "is the chief evil against which the wording of the Fourth Amendment is directed." Without some
sort of exigent circumstances (emergency), entry into a private residence is prohibited without a prior
authorization. Welsh v. Wisconsin, 80 L. Ed.2d 732 (1984). The next question, then, is: What
constitutes a "private residence?"
RCM 302(e)(2) defines a "private dwelling" to include single family houses, duplexes, and
apartments. The quarters may be owned, leased, or rented by the residents, or assigned, and may be
occupied on a temporary or permanent basis." The term "does not include the following, whether or not
subdivided into individual units: living areas in military barracks, vessels, aircraft, vehicles, tents,
bunkers, field encampments, and similar places."
MP1021
1-34
Previous Page
