Fourth Amendment Search and Seizure in the Military

Imaging sitting in your vehicle on base in Southern California minding your own business. How would you feel if the military police approached your car, opened the door, arrested you, and then proceeded to search through all of your belongings based on a hunch? What if the military tried charging you with possession of a controlled substance, DUI, or stolen property found in the vehicle? Would it feel like a violation of your constitutionally protected Fourth Amendment right? If so, how would a court look at the law associated with your case?

Does the Fourt Amendment Apply to Military Courts-Martial?

Yes. The Fourth Amendment of the US Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment applies to soldiers. United States v. Stuckey, 10 M.J. 347, 349 (C.M.A. 1981). However, it only applies when there is a governmental invasion of privacy. See Rakas v. Illinois, 439 U.S. 128, 140-49 (1978).

Military Rules of Evidence (Mil. R. Evid.) codify constitutional law; specifically, Mil. R. Evid. 314(f) describes searches not requiring probable cause and searches incident to a lawful stop. Mil. R. Evid. 314(f)(1) states: A stop is lawful when conducted by a person authorized to apprehend under R.C.M. 302(b) or others performing law enforcement duties and when the person making the stop has information or observes unusual conduct that leads him or her reasonably to conclude in light of his or her experience that criminal activity may be afoot. (italics added).

Evidence is admissible at court-martial if seized from a person who was lawfully stopped and who was frisked for weapons because he or she was reasonably suspected to be armed and dangerous. Mil. R. Evid. 314(f)(2). Contraband or evidence that is located in the process of a lawful frisk may be seized. Id.

As a general rule, the accused’s own constitutional rights must have been violated to raise a Fourth Amendment violation, however, when police conduct a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and may challenge the stop’s constitutionality. See Brendlin v. California, 551 U.S. 249 (U.S. 2007).

When Do Reasonable Expectation of Privacy Exceptions Apply to the Military?

The Fourth Amendment only applies if there is a reasonable expectation of privacy. In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court said there is not one “exclusive” test for reasonable expectation of privacy. The Court specifically acknowledged the historical trespass doctrine and the Katz expectation of privacy test. The traditional trespass doctrine relates to how the “Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘person, houses, papers, and effects’) it in enumerates.” Id.

The Court added to the traditional trespass doctrine by creating a two-part test to determine if an expectation of privacy is reasonable: (a) the person must have an actual subjective expectation of privacy; and (b) society must recognize the expectation as objectively reasonable. See Katz v. United States, 389 U.S. 347 (1967). The judiciary has provided examples of areas without a reasonable expectation of privacy. See Hester v. United States, 265 U.S. 57 (1924) (holding open fields are not protected by the Fourth Amendment); see also California v. Greenwood, 486 U.S. 35 (1988) (holding no expectation of privacy in sealed trash bags left for collection at curbside).

How has the Court of Appeals for the Armed Forces Viewed Searches?

The Court of Appeals for the Armed Forces held peering into an open car door or through a window of an automobile is not a search. See United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999). In Owens, a police officer peered through an open door and viewed suspected stolen stereo equipment while the vehicle was being worked on by a mechanic at approximately 1030 hours. See id. at 206. When the police notified the appellant they were investigating stolen stereo equipment and wanted to search his car, he consented. See id. at 206-07.

The Court of Appeals for the Armed Forces also held in United States v. Richter that evidence was properly “seized as a result of a valid investigative stop, observation of items in plain view, and a search that was permissible under the ‘automobile exception’ to the Fourth Amendment requirement for a warrant.” United States v. Richter, 51 M.J. 213, 220 (C.A.A.F. 1999). In Richter, OSI agents received information from a service member that the “appellant had taken a government-owned bicycle for his personal use and had been observed loading tents into a privately-owned vehicle.” The service member also surrendered a government-owned medical cabinet she received from the appellant. See id. Police observed the appellant “loading a large box into his truck and driving toward the gate within minutes after the pretext call was made, the ‘reasonable suspicion’ required for a Terry stop was satisfied. Once the OSI agents made a lawful investigative stop, it was not a violation of the Fourth Amendment for them to observe items in plain view.” (italics added). See id.

An On-Base Pretextual Traffic Stops Require at Least Reasonable Suspicion

A stop of a motorist, supported by probable cause to believe he committed a traffic violation, is reasonable under the Fourth Amendment regardless of the actual motivations of the officers making the stop. See Whren v. United States, 517 U.S. 806 (1996). Officers who lack probable cause to stop a suspect for a serious crime may use the traffic offense as a pretext for making a stop, during which they may pursue their more serious suspicions by utilizing plain view or consent. See id; see also United States v. Rodriquez, 44 M.J. 766 (N.M.Ct.Crim.App. 1996) (holding a traffic stop was lawful when a state trooper had probable cause to believe the accused violated Maryland traffic law by following too closely).

The Fourth Amendment allows a limited government intrusion (“stop and frisk”) based on less than probable cause (“reasonable suspicion”) where important government interests outweigh the limited invasion of a suspect’s privacy. See Terry v. Ohio, 392 U.S. 1 (1968); Mil. R. Evid. 314(f)(2). Reasonable suspicion entails “specific and articulable facts,” together with rational inferences drawn from those facts, which reasonably suggest criminal activity. See Terry v. Ohio, 392 U.S. 1 (1968); United States v. Blair, 32 M.J. 404 (C.M.A. 1991); United States v. Robinson, 58 M.J. 429, 430 (C.A.A.F. 2003). Reasonable suspicion may be based on an anonymous tip. See Alabama v. White, 496 U.S. 325 (1990) (holding a detailed anonymous tip was sufficient reasonable suspicion to stop automobile for investigative purposes).

How do On-Base Emergency Searches Work?

In emergencies occurring on base, a search may be conducted to render medical aid or prevent personal injury. Mil. R. Evid. 314(i); see Brigham City, Utah v. Stuart et al., 547 U.S. 398 (2006) (police officers visually observed four individuals trying to restrain a juvenile who broke free and punched an adult, causing the adult to spit blood into a nearby sink, while the remaining adults pressed the juvenile up against a refrigerator with such force the refrigerator moved across the floor). Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously threatened with such injury. See id.

The Exclusionary Rule Can Apply to Courts-Martial

Evidence obtained directly or indirectly through illegal government conduct is inadmissible. See Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 376 U.S. 643 (1961) (the exclusionary rule is a procedural rule that has no bearing on guilt, only on respect for “dignity” or “fairness”). Evidence obtained as a result of an unlawful search or seizure made by a person acting in a government capacity is inadmissible against the accused. Mil. R. Evid. 311(a).

The military judges presiding over a court-martial have the latitude to consider many facts and circumstances surrounding the case. Every military judge is different, and every case has diverse facts. However, judges in California and in the military will analyze the caselaw to come to a decision in your case.

If you are looking to get advice on trial strategy or looking for serious court-martial representation, contact us for a free consultation or call our office at 760-536-9038. For those service members who were convicted at court-martial and looking to appeal their court martial conviction due to a violation of their Fourth Amendment rights, our office can discuss your options over the phone or in our Carlsbad, California office.