Posted on Apr 18, 2015
Does an individual have the right to see a search authorization prior to a search?
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For those with a law enforcement background, I have a question specifically for you based on a situation another patrol of mine encountered tonight. The situation is as follows:
A individual buys an illegal substance from an undercover law enforcement officer. After purchasing a large quantity, the arrest is not made and the individuals (who are not servicemembers or federal employees) then proceed to drive to an installation access point. A patrol is requested to stop and search the vehicle when it does. No consent has been given by the individual. No search authorization is acknowledged by the patrol, and there is no plain view to fall back on. A search is conducted where the contraband is found with more illicit substances and one knife, out of reach. An apprehension is made, and they are transported.
After the fact, a search authorization has been stated to existed, but as of now, was not seen nor were the specific details of its extent stated. Upon completion of transport, the individual requests to see a search authorization prior to a strip search ordered by the undercover law enforcement agency which supposedly covers this as well. A search authorization is never provided, and they complete the search finding additional contraband.
My question is, at what point, if at any, is this violating the 4th Amendment rights? Keep in mind that there is no holding cells, and the individual would be released to the unit. I have my own opinion on it, but I'm interested in what others think?
I am not asking whether they are committing a criminal act, nor whether they should still be punished. What is or is not legal strictly. We are sworn to uphold the Constitution, not circumvent it when it makes things easier. They were wrong clearly, but that does not mean they are not entitled to their rights. Thanks for all responses in advance!
A individual buys an illegal substance from an undercover law enforcement officer. After purchasing a large quantity, the arrest is not made and the individuals (who are not servicemembers or federal employees) then proceed to drive to an installation access point. A patrol is requested to stop and search the vehicle when it does. No consent has been given by the individual. No search authorization is acknowledged by the patrol, and there is no plain view to fall back on. A search is conducted where the contraband is found with more illicit substances and one knife, out of reach. An apprehension is made, and they are transported.
After the fact, a search authorization has been stated to existed, but as of now, was not seen nor were the specific details of its extent stated. Upon completion of transport, the individual requests to see a search authorization prior to a strip search ordered by the undercover law enforcement agency which supposedly covers this as well. A search authorization is never provided, and they complete the search finding additional contraband.
My question is, at what point, if at any, is this violating the 4th Amendment rights? Keep in mind that there is no holding cells, and the individual would be released to the unit. I have my own opinion on it, but I'm interested in what others think?
I am not asking whether they are committing a criminal act, nor whether they should still be punished. What is or is not legal strictly. We are sworn to uphold the Constitution, not circumvent it when it makes things easier. They were wrong clearly, but that does not mean they are not entitled to their rights. Thanks for all responses in advance!
4th Amendment
Law
Bill of Rights
Posted >1 y ago
Responses: 12
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If the suspect vehicle was on the installation, such as the approach to a gate, it may be subject to search without warrant.
Need a JAG for more detailed reading.
Need a JAG for more detailed reading.
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SGT (Join to see)
True, but that also could easily be shown to be targeted for search compared to normal random checks sir. Perhaps that's incorrect, but in my experience, there has never been an instance where using the gate to conduct a thorough search on only one specific vehicle has been allowed. Random vehicle checks yes, but that was not the case. Same with plain view visual check into say the backseat and such, but this was not used for the probable cause either.
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In law enforcement, Yes, we must follow the 4th amendment, and all rules regarding searches and seizures. If a search authorization is needed, most times they are obtained via a military magistrate (from SJA) over the phone for expediency.
It has to be completely legal, or it will not stand up in court; "fruits of the poisonous tree"
ACP searches are a whole different issue.
Holding cells are also a different issue too, as only certain people can approve pre-trial confinement, and this authorization (confinement order) is not within the MP world.
Strip searches too, are another issue as well. These are generally not used in everyday law enforcement operations.
If someone purposely circumvented the rules for the purpose of gaining evidence or any other reason, than (A) this will be hard to prosecute, and (B) those who did, need to be held accountable.
It has to be completely legal, or it will not stand up in court; "fruits of the poisonous tree"
ACP searches are a whole different issue.
Holding cells are also a different issue too, as only certain people can approve pre-trial confinement, and this authorization (confinement order) is not within the MP world.
Strip searches too, are another issue as well. These are generally not used in everyday law enforcement operations.
If someone purposely circumvented the rules for the purpose of gaining evidence or any other reason, than (A) this will be hard to prosecute, and (B) those who did, need to be held accountable.
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SGT (Join to see)
My thoughts mirror this, but unfortunately I was not around until after it had already been done.
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You bring up a great point SGT (Join to see), there are signs upon the access gates that inform all personnel entering that their entry is a consent to search......signs are posted and if this was in fact a random search (every fourth car, every silver car etc) established before the search I'd say nothing to worry about. With the facts of the case that you've shared, I am sure there will be an opine, let us know what you find out as this could very well be a problem - especially if there was no probable cause involved.
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SGT (Join to see)
Thanks CSM Michael J. Uhlig , I'm just trying to look out for my guys and teach them the right way. I think, at a minimum, they took unnecessary risks for a slam dunk case.
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Its at the gate, everyone is subject to search and seizure. There is a sign. Maybe they should have read the sign. Far a showing someone a warrant to search, there are many ways around that. One ways is a search to incident or if its under exigent circumstances.
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SGT (Join to see)
At the gate you are subject to search, but once on the installation you can not conduct a traffic stop and search without probable cause. You have to have probable cause to conduct a traffic stop, without that any good lawyer will have the entire case thrown out before you reach trial.
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Having been able to be an Investigatir for CID's Drug suppression team, I can tell you that if we had enough information and knew the said vehicle, person, or house, had a controlled substance on them that were not prescribe, we would call up the Magistrate and give a VERY detailed breakdown of who, what, where, when, why, and add in a "Sorry for waking you up Sir". We had to be very thorough as we had soldiers who overdosed, committed suicide, and even homicide because of bath salts, spice, mix of depression and a cheating spouse. As long as we were given Verbal authorization to continue to proceed, we would follow through and build a case and the next day during office hours meet up and get the warrant signed off on. You won't always see it in paper signed off on depending the circumstances, however- the person pulled over should have still received a copy to look over and understand what was taking place. This isn't always easy as most times we had to apprehend or detainee individuals, even have then escorted to the hospital because of the drugs in their system. We even had those special few who just wanted to fight. I hope this somewhat helps. If it was drug related and DST got involved (which should always happen on a military installation) they have an office you can visit and they can explain this all in person and I'm sure they'd give you the professional version. I'm sure there's more I could say but there's a lot that goes into these things and it's easier going back and forth with someone in person.
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SGT (Join to see)
No I appreciate it. I guess two things were just odd to me: 1. they sold it off post, and 2. asked us to make the apprehension but gave us nothing to CYA prior. I don't doubt all of that occurred, which is why it surprised me like it did, but it would be really nice if they gave us the courtesy to know we aren't going in hot when we shouldn't yet. Still thanks for the info, it was very insightful.
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Access to a controlled area will often have signs "authorizing" search (consent). You don't have to grant consent. By driving to the base, you are already granting it. The same logic applies when "attempting" to enter airport security. It is the attempt to enter, not the actual entering that grants consent, because you become aware of security procedures at that point.
http://cdn.ca9.uscourts.gov/datastore/opinions/2005/06/07/0430243.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2005/06/07/0430243.pdf
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There are to many ifs in your situation that we do not know in order to make a decision if this was a valid search. I am going to hope that some kind of coordination was made with your PMO and that phone calls were made to JAG to ensure everything was on the up and up. If the buy was made from lets say DST agents then they are military members and that makes it easier for the PMO to have a patrol take care of pulling over the vehicle and getting it searched, either way if I was the one doing the traffic stop I would have called K9 to the scene to verify there was a presence of drugs in the vehicle. There are search authorizations forms that can be filled out, in fact we had them at my last duty station and were required to use them when conducting vehicle searches. You can also call Jag and get a verbal search authorization if you have probable cause, then you can get the actual search authorization typed up and signed later. Like I said there is more to this than you can tell us online since it is an active case, so it leaves a lot of room for interpretation.
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SGT (Join to see)
No the PMO was not in the loop, they are absolutely horrible at coordinating things prior. This is a big problem in more situations than this one, which has been brought up time and again, but they are inconsistent at best when interpreting the law. They also think they have much more authority than they actually do, and do not care about their patrols in the slightest. They essentially order it to be done and worry about the red tape later. The problem is, people don't realize that this is one of those things that NEEDS coordination prior. Instead, they just purposely ignore the question when I asked it, and passed the buck to DST.
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SGT (Join to see)
That is the problem with some of the PMO's and the Military Police as a whole, they try to leave everything to interpretation. The law is clearly defined as to what you can and can not do, but most of the time people make mistakes because they do not care to educate themselves. Like I said I do not know the whole story so I can not comment on it, but you can not just pull someone over without probable cause and Military Police can not pull someone over for a crime that was committed off post. I was pulled over without probable cause and then told my vehicle would be searched without warrant then I would let you guys do your job then get a good lawyer to fry everyone involved. I am that NCO that makes soldiers read and learn, I will also teach them because I do not want to be that patrol supervisor that looks like an idiot when my guys screw up. I know it is after the fact, but have your guys read case law and learn what they can and can not do. If someone tells me to do something that is against what I know is right then I will not do it, and we will deal with what consequences you see fit as a leader to bestow upon me. I have stood up to people over the years and held my ground when I know I am right, and it may have caused me some grief but in the long run the right thing was done because it went to someone who actually knew the law.
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SGT (Join to see)
Yep, sadly I wasn't the patrol supervisor and found out about it after the fact, but that's basically what I told them afterwards. It doesn't mean a thing if it isn't done legally.
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From what you are stating this was at a gate. There is the ability to inspect all vehicles that enter the base for the protection of the base. The fact that there is not a holding cell does not mean anything. If this really happened to you or something like this don't talk about it on a public area go get a lawyer.
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The search on the vehicle needs no warrant or plain view because of knowledge of illegal contraband by the law enforcement agency. They "sold" the items, and they know that the said items are in the vehicle, therefore giving them the legal right to search the said vehicle. Once the arrest has taken place, because that's what the individuals were, not detained, they were arrested. The holding facility, or the PMO at this point needs to search warrant to search the individuals persons. They are arrested and the LEA has the duty to ensure all contraband has been located. No rights were violated because PC exist for the search of the vehicle and the persons once the individuals were in custody.
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