In US. v. McCarthy, 38 MJ 398 (CMA 1993), a warrant was not required to apprehend the accused
in his military dormitory room. Under the Fourth Amendment and RCM 302(e)(2), an apprehension
warrant or authorization is only required if the apprehension occurs in the "home." A barracks room is
not equivalent to a home. The precedential value of this case is not entirely clear. Commanders and
law enforcement personnel should consider the effect the "single soldier" initiative will have upon a
soldier's reasonable expectation of privacy in his or her barracks room. The administration of this
program, unfortunately, is not uniform and varies from installation to installation. There are no cases on
this issue at present.
In U.S. v. McCormick, 13 MJ 900 (NMCMR, 1982), NIS agents apprehended the accused in his
own room in the Bachelor Enlisted Quarters (BEQ). The court ruled that military authorities may enter
barracks and berthing areas, without arrest authorizations specifically related to such areas, for the
purpose of effecting the lawful apprehension of persons subject to military authority and for the purpose
of apprehending those persons who, while not subject to military jurisdiction under the Code, are
properly the subject of the commander's concern for the safety of his command." A barracks, then, is
not a private dwelling. If the authorities have probable cause, a soldier may be apprehended in the
barracks without a prior authorization. This was held to be true regardless of the way the building was
designed, and whether or not it had individual rooms. The rule, then, is that "absent exigent
circumstances, appropriate authorization by a responsible commander based upon probable cause
must be obtained before a private dwelling may be entered to make an arrest, even though the person
entering possesses authority to arrest and has probable cause to do so." U.S. v. Jamison, 2 MJ 906
(ACMR, 1976). In U.S. v. Mitchell, 12 MJ 265 (CMA, 1982), the rule was applied to an apprehension of
a soldier in an off-post apartment overseas. The same is true for a CONUS apartment, both being
treated as "private dwellings." U.S. v. Baker, 14 MJ 602 (AFCMR, 1982).
In U.S. v. Ayala, 22 MJ 777 (ACMR, 1986), the court held that this rule applies to on-post family
quarters, explaining that it is "limited in its military application to circumstances where the service
member's apprehension occurs within a private dwelling or residence." In this case, the accused was
apprehended at the Ivy Inn, which was an on-post government facility operated as a guest house. It
was handled similar to a hotel/motel. The fact that maids could enter to clean the room (as could
maintenance personnel) did not mean that the POLICE could do so. The court explained that only on-
post "motel/hotel-type accommodations" would be equated with a private dwelling.
Some older cases stated that a soldier does have a reasonable expectation of privacy in a
private BOQ room (Bachelor Officers' Quarters). An example is U.S. v. Hines, 5 MJ 916 (ACMR,
1978). It is not, therefore, a clearly decided issue. U.S. v. Mitchell, 12 MJ 265 (CMA, 1982). While the
authorization requirement applies to a private residence, the matter of private rooms in the barracks
has not been clearly decided. U.S. v. Davis, 8 MJ 79 (CMA, 1979). In the McCormick case, the Navy
Court of Military Review ruled that the BEQ was not the equivalent of a private dwelling. It is not clear
just what the Army Court of Military Review would do in such a situation. Until the matter is clarified by
the appellate courts, consult with JAG before acting in this area. If you have time, get a prior
authorization. Remember, this is always the safest way to go.
1-35
MP1021
Previous Page
