La. Admin. Code tit. 41 § II-308

Current through Register Vol. 50, No. 9, September 20, 2024

Section II-308 - Authority to Search

A. A search and seizure is lawful in the following situations:

1. Apprehension. A Service member may be searched at the time and place of a lawful apprehension. The purpose of the search is to discover weapons and to prevent the destruction of evidence. The search is limited to the person of the Service member and the area within his immediate control. For example, the area within his immediate control may include a nearby open locker within his reach, but not the entire room.

2. Searches Authorized by the Commander

a. Areas subject to search. A commander has authority to conduct or direct a search of any person or property located in a place under his control if there is probable cause to justify the search. Searches of areas outside the commander's immediate control should be undertaken only after coordination with the proper command authority.

b. Requirement of Probable Cause. Before a commander may authorize a search of a person or area in a place under his control, he must at least have probable cause to believe:

i. a crime is being committed or has been committed;

ii. the person to be searched committed or is involved in the crimes;

iii. the evidence of the crime is now where the commander plans to search; and

iv. the information is credible and the source of the information is reliable.

c. Probable cause to search exists when there is a reasonable belief that a person, property, or evidence sought is located in the place or on the person to be searched. A search authorization may be based upon "hearsay" evidence in whole or in part. There must be more than mere suspicion in the mind of the commander, but absolute proof beyond a shadow of a doubt is not required. In other words, probable cause lies somewhere between suspicion and actual knowledge. The commander must personally conclude, on the basis of information presented to him, that the contraband or evidence of a crime is at that time likely to be in the possession of the individual or on the premises to be searched. The commander's determination that probable cause exists must be reasonable and must be based on facts. It may not be based only on the conclusions of others. It is of no importance that a CID agent, a first sergeant, or an informant is aware of sufficient facts to provide probable cause, unless those facts are given to the only individual who orders or authorizes the search - the commander. The commander must believe that the person furnishing the information is reliable and that he had a sound basis for his information. In case of doubt, the commander should consult a Judge Advocate. DA Form 3745 should be used by the commander when authorizing a search.

d. Delegation of Authority. A unit commander may delegate his authority to search. The delegation of this authority should be limited to those persons whose experience, responsibilities, and temperament will insure a fair and impartial determination of probable cause. Commanders should consult the DRU SJA in order to delegate his authority to search.

3. Consent Searches

a. Probable cause is not required when a person with possession or control of property freely gives his consent to the search of his property. Because consent to the search is a waiver of the constitutional right to be free from unreasonable searches, the government must be able to produce clear and convincing evidence that the consent was voluntary and not a mere submission to authority. In order to establish voluntary consent, it is recommended that the suspect be told:

i. the specific items the search is expected to uncover;

ii. the specific area the search will cover;

iii. that he has a legal right to withhold his consent;

iv. that he cannot be forced to submit to a search unless it is properly authorized; and

v. that any evidence found in the search can be used against him.

b. It is advisable for a commander to have an unbiased and trustworthy witness present when a service member consents to a search. Should consent become an issue at the trial, the witness can verify the nature of the consent. If a consent search uncovers evidence of criminal conduct, the evidence will be admissible at trial. It does not matter that the consent was obtained without probable cause.

4. Open View. Evidence of criminal conduct which is in open view or located in a public area, such as a day room, may be seized without consideration of the requirements of consent or probable cause.

5. Search Warrant. Evidence may be seized pursuant to a search warrant issued by a proper magistrate. In the event that a search warrant is deemed necessary, the commander should consult a Judge Advocate.

La. Admin. Code tit. 41, § II-308

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2357 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).