Capítulo II. Estado del conocimiento 29
2.2. Teorías
2.2.2. Capacidad de respuesta del Ejército del Perú
CO’s Search Limitations
A commanding officer’s ability to authorize a search is limited by several factors. The commanding officer
• Is limited by the probable cause requirement as to what can be searched.
He may search only where he reasonably believes evidence will be found.
• Can authorize a search of personnel only within his command,
jurisdiction, whether they are on or off base, and in any area or property under his control. This area or property must be on base.
• Can also authorize a search of his command which includes all
government property or property owned by personnel under his authority.
For example, a commanding officer could order a search of a Marine’s room on base if he had probable cause, but not of an apartment in a civilian housing area. The commanding officer could also authorize a search of a Marine’s private vehicle if it were on base.
• Must be neutral and detached and must perform his duties with a judicial, rather than a police attitude. For example, a commanding officer is not permitted to personally conduct a search he has authorized. He cannot authorize a search when he has been personally involved in gathering information, which would lead to probable causes to authorize such a search. The order must be sure to state precisely what person or place is to be searched and the object of the search.
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MCI Course 8102 1-32 Study Unit 1, Lesson 2
Types of Searches,
ContinuedNecessity Search
In some cases, there may not be time to obtain authorization from the CO to conduct a search. In cases where immediate action is necessary to prevent the removal or destruction of evidence, a necessity search may be conducted. In such a case, you must not only establish probable cause, but also show that the commanding officer could have properly authorized the search if there had been time. You must demonstrate that the circumstances preclude obtaining permission in the normal way.
Searching Outside of Jurisdiction
Occasionally, a commanding officer may find that there is probable cause to search an area outside his jurisdiction. If the area is subject to military control, the appropriate commanding officer, who has been contacted and given the evidence for probable cause, can authorize the search. In the case of off-base civilian property, the case is brought to the attention of the civilian authorities having judicial powers over the suspected area. Upon being convinced that probable cause does exist, the civilian judiciary issues the warrant, which is then served by appropriate civilian law enforcement agency.
Military personnel may act as observers, but do not take an active part in the search.
Consent Search In this case, the owner of the property or the person to search freely gives their consent to search. No probable cause is needed in this kind of search.
Promises of better treatment or threats should never be used to gain consent.
If there is no legal right to search, consent to search should not be induced by any means.
Article 31 Warning and Consent Search
When asking suspects for their consent to search, it is not required to give Article 31 rights and warnings; however, it helps to establish that the consent was voluntary if you have given the warnings. If the suspect does not want to make a statement or answer questions without a lawyer, you may still ask him whether he consents to a search. It is best to advise the suspect that he has a right to withhold the consent before asking him to consent. It is always proper to have a third party present during a search to protect yourself from being accused of illegal actions during or after the search.
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MCI Course 8102 1-33 Study Unit 1, Lesson 2
Types of Searches,
ContinuedSearch Incident to Lawful Apprehension
When a lawful apprehension is made, the apprehending personnel are authorized to conduct a search of the person being apprehended and the immediate area in which the person was apprehended. This search, which is designed to prevent the destruction or disposal of evidence and to protect the person performing the apprehension by revealing any weapons, must be conducted as soon as possible after the apprehension.
Who May Apprehend
Any officer, warrant officer, staff noncommissioned officer or
noncommissioned officer can apprehend anyone who falls under the UCMJ.
Who May be Apprehended
The law states that you can apprehend a person only when you have probable cause to apprehend or to quell any disturbance of verbal or physical nature.
This can include civilians within military jurisdiction.
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MCI Course 8102 1-34 Study Unit 1, Lesson 2
Types of Searches,
ContinuedWhat May be Searched
The law allows for the search of an apprehended person, his body and
clothing and the immediate area where the person has been apprehended. The law allows you to search in a manner to protect yourself. If in the course of a search you find incriminating evidence, it may be seized.
Search Where No Expectation of Privacy Exists
The right to be free from unreasonable searches applies only to an
individual’s body and property. It does not apply to government property used by the accused in the execution of his duties. Areas such as office desks, government vehicles, etc., may be legally searched without consent or
probable cause since no expectation or right of privacy exists. On the other hand, areas such as wall lockers, used mainly for personal gear, do fall under the provisions of the Fourth Amendment. For example, a wall locker used to store personal gear cannot be searched without probable cause; the wall locker and its contents would be considered personal property and therefore protected by the Fourth Amendment.
MCI Course 8102 1-35 Study Unit 1, Lesson 2 Exercise
Lesson 2 Exercise
Estimated Study Time
10 minutes
Directions Complete items 1 through 3 by performing the action required. Check your answers against those listed at the end of this lesson. If you have any questions, refer to the reference page listed for each item.
Item 1 Which of the following is considered a reasonable belief that a crime has been committed and that the item being searched for is in the place being searched?
a. Not a good enough reason to search b. Probable cause
c. A fact admissible in court d. Evidence of the crime
Item 2 Which of the following is a legal object of a search?
a. Marine in possession of pistol on private property b. Marine in possession of marijuana on private property c. Marijuana found in Marine’s a car off base
d. Marijuana found in Marine’s car on base
Item 3 Identify which of the following is a lawful search?
a. Search authorized by the commanding officer.
b. Search authorized and conducted by the commanding officer.
c. PFC Warrior consents to a search after being told, “Things could go easier for you.”
d. PFC Warrior consents to a search after being told, “We are going to search anyway, you could make it easier.”
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MCI Course 8102 1-36 Study Unit 1, Lesson 2 Exercise
Lesson 2 Exercise,
Continued
Answers The table below provides the correct answers to the exercise items. If you have any questions, refer to the reference page listed for each item.
Item Number Answer Reference
1 b 1-28
2 d 1-29
3 a 1-30
Summary This lesson provided you with information on obtaining proper authorization for searches and on how to conduct a lawful search. The next lesson will discuss the laws of land warfare.
MCI Course 8102 1-37 Study Unit 1, Lesson 3