La. Admin. Code tit. 41 § II-307
Current through Register Vol. 50, No. 9, September 20, 2024
Section II-307 - Search and SeizureA. General. A unit commander may lawfully seize the property of a person in his unit; however, that an unlawful search which violates a Service member's rights will likely result in seized items being excluded from evidence and therefore inadmissible during a court-martial. Because the law of probable cause is often difficult to apply, Commanders shall consult with a Judge Advocate prior to taking action. This not only avoids unlawful searches and protects the Service member's rights, but it also insures that physical evidence will be admissible in a trial by court-martial.B. Lawful Searches and Seizures. A commander may authorize a search if he is reasonably certain that an offense has been committed and that items connected with the offense will be found in the location he intends to search.C. Search of Persons, Vehicles, or Residences not located on Military Property. Searches shall not be conducted of Persons, Vehicles, or Residences not located on Military Property. If a commander has a reasonable basis to search a service member's person, vehicle, or residence not located on Military Property, he shall immediately contact his servicing Judge Advocate in order to obtain a civilian search warrant and the assistance of local law enforcement.D. Search of Government Quarters or Residences located on Military Property. Prior to undertaking a search of Government Quarters or Residences located on Military Property, commanders and investigators shall immediately contact his servicing Judge Advocate in order to obtain a search warrant from a Military Judge.E. Inspections. Search and seizure requirements do not limit the commander's authority to conduct legitimate inspections including unannounced shakedown inspections. The purpose of an inspection is to promote the health, welfare, preparedness, and safety of the personnel in the unit. For example, the commander may want to insure that his service members have their equipment cleaned, maintained, and properly stored and that they have no dangerous articles such as ammunition carried from the range. The inspection must apply uniformly to all Service members in the area and may extend to an examination of all their belongings kept within their government living area. Although an inspection need not be previously announced, it must have a legitimate purpose and may not be a mere subterfuge or excuse for what is really an unlawful search. The commander who decides to conduct his "inspection" upon hearing of a barracks larceny, and then starts his inspection near the living area of his prime suspect probably will not later convince the military judge that he was "inspecting" rather than "searching." Since an inspection is not based on the commander's belief a crime has been committed, it is not a search. Evidence of criminal conduct discovered during the course of a legitimate inspection may be admitted at a trial by court-martial.F. Inventories. When a service member is AWOL, about to be confined, or detained by civilian authorities, an inventory of the member's personal belongings is required. Evidence obtained as a result of this inventory is admissible in a court-martial. Having a disinterested witness participate in this inventory is advisable.G. Consent Searches. A person may consent to a search of his person or property, or both, unless control over such property has been given to another. A person may grant consent to search property when the person exercises control over that property. Consent may be limited in any way by the person granting consent, including limitations in terms of time, place, or property, and may be withdrawn at any time [See also para 3-8(C).] The issue of whether or not consent has been granted is a question of fact to be determined after a thorough examination of the circumstances relative to the alleged consent.H. Searches of Government Property. Government property may be searched unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein at the time of the search. Under normal circumstances, a person does not have a reasonable expectation of privacy in government property that is not issued for personal use. Wall or floor lockers in living quarters issued for the purpose of storing personal possessions normally are issued for personal use; however, the determination as to whether a person has a reasonable expectation of privacy in government property issued for personal use depends on the facts and circumstances at the time of the search. [See also para 3-8(c).]I. Searches of Open Fields or Woodlands. A search of open fields or woodlands does not require the issuance of a search warrant or search authorization.J. Search of Person or Vehicle Located on Military Post, Reservation or Installation. When properly notified, usually by a warning sign posted conspicuously at the post, reservation or installation gate, individuals entering or leaving such post, reservation or installation give implied consent to the search of their persons, possessions, and vehicles and may be so searched. This authority includes Louisiana National Guard armories and facilities, under the provisions of La. R.S. 29:28.1.K. Canine Searches. If a commander has a reasonable belief that illegal drugs are present in the area under his command, that commander may authorize a canine search of either the barracks or POV's located in that area and any contraband found upon alert of the canine is legal and admissible evidence.La. Admin. Code tit. 41, § II-307
Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2356 (November 2009).AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).