Your rights to privacy
when can Military Law enforcement search your private Property?
Military law enforcement frequently seeks to search the private property of military members on military bases. While many of the general concepts pertaining to civilian searches apply equally (or similarly) to these situations, there are several nuances unique to the military.
Probable cause is usually required before a military member’s private property can be searched. In this respect, military searches are similar to civilian searches, and military members maintain an expectation of privacy in their property. But there are some exceptions to the general rule requiring probable cause. Many of the exceptions to this general rule are similar to exceptions found in the civilian world, such as consent, exigent circumstances, inspections, and searches in jails. Searches of government-owned property, even if privately issued to a military member (e.g., a work laptop), generally do not require probable cause.
Search Warrant v. Search Authorization
In the military, a “search authorization” is analogous to a search warrant. Essentially, it is the document law enforcement relies on in proving they have probable cause to search property. Law enforcement must apply for and receive approval for a search authorization, which can be issued only upon a showing of probable cause. A search authorization can be issued either by a military judge/magistrate or a commander. A commander being able to authorize a search is obviously different from anything that exists in the civilian world.
Another unique aspect of a military search authorization is its scope. A search authorization can be used to search a military member’s person wherever that member is located. But property is different. Generally, a search authorization can only authorize the search of private property located on a military installation. For example, if a military member lives off base in the civilian community, a military search authorization cannot authorize the search of the military member’s home. In those situations, military law enforcement usually teams up with civilian law enforcement to obtain a search warrant issued by a local civilian judge. Another common tactic is to wait until the military member brings their property onto a military base, which frequently happens with cars and cell phones, thereby bringing the property within the scope of a search authorization. For more information on searches of phones, see our web page on electronic media.
As a former active duty JAG officer and two-time defense counsel in the Air Force, Ross Brennan at Cronauer Law is a seasoned advocate in defending servicemembers in cases involving illegal searches and seizures. Contact Cronauer Law today for a free consultation with an experienced military criminal defense attorney.
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