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Seizures

Evidence in open view or in a public area such as a dayroom or an open field may be lawfully seized without probable cause and without consent. (See MCM, Mil. R. Evid. 314(j).)

The Fourth Amendment prohibits unreasonable seizure of the person. An unreasonable seizure may result in the evidence being inadmissible in a courtmartial.

CONTACTS AND STOPS

Every contact between an official and soldier is not a detention and therefore subject to the Fourth Amendment. Many contacts do not result from suspicion of criminal activity. Examples of lawful contacts include questioning witnesses to crimes and warning pedestrians that they are entering a dangerous neighborhood. These types of contacts are entirely reasonable, permissible, and within the normal activities of law enforcement personnel and commanders--they are not detentions in any sense.

Officers, NCOs, and MPs may initiate contact with persons in any place they are lawfully situated. It is difficult to define when a person is lawfully situated. Generally, this includes inspecting the barracks, making a walk-through of the barracks or unit area, and presence in any place for a legitimate military purpose.

An officer, NCO, or MP who reasonably suspects that a person has committed, is committing, or is about to commit a crime has the obligation to stop that person. He may stop both pedestrians and vehicle occupants. If the person stopped is a suspect to be questioned, the official should read him or her Article 31 and the counsel warnings. The stop must be based on more than a hunch. The official making the stop should be able to state specific facts to support the decision to stop an individual.

APPREHENSIONS

Any officer, warrant officer, noncommissioned officer, or military policeman may apprehend individuals with probable cause. Probable cause to apprehend requires the following:

A reasonable belief that a crime is being committed or has been committed.

A reasonable belief that the person being apprehended is guilty of a crime.

An example of probable cause to apprehend is when you or another reliable person have seen someone violate UCMJ, such as using marijuana, assaulting someone,

breaking another's property, or being drunk and disorderly. Probable cause requires a common sense appraisal of all available facts and circumstances.

You may apprehend a soldier anywhere and any time; the only limitation is that you must have probable cause. To do so, you should identify yourself as an officer and show your ID card if you're not in uniform. Tell the soldier you are apprehending him and explain the reason, such as disorderly conduct, assault, or possession of marijuana. You may use help. Read the soldier his Article 31 rights, preferably from a rights warning card, as soon as practicable. If the soldier resists apprehension by running away or assaulting you, enlist others to help catch him; he may be prosecuted for resisting apprehension or disobeying an order. You may detain civilians until military or civilian police arrive.

Generally, with probable cause, no arrest warrant is required in the military. There is one important exception, however: a warrant is required for any apprehension in a private dwelling, such as on-post family quarters, the BOQ or BEQ, or off-post quarters. The barracks and field encampments are not considered private dwellings; therefore, no special authorization is needed to apprehend someone there.

If the person to be apprehended is in a private dwelling, the apprehending officer must get authorization from a military magistrate or the commander with authority over the private dwelling (usually the installation commander). Also, to apprehend a person at off-post quarters requires coordination with civilian authorities.

INSPECTIONS

Search and seizure requirements do not limit your authority to conduct inspections. The primary purpose of inspections is to ensure the unit's security, military fitness, and order and discipline. Orders for urinalyses are a permissible part of a valid inspection. An inspection can include an examination to locate and confiscate unlawful weapons or contraband as long as the inspection is not a pretext for a search; that is, the primary purpose of an inspection cannot be to obtain evidence for use in a trial or other disciplinary proceeding.

An inspection for weapons or contraband may not be proper if any of the following occurs--

The inspection immediately follows a report of a specific offense in the unit and was not scheduled before the report.

Specific individuals are selected for inspection.

Persons inspected are subjected to substantially different intrusions.

Such an inspection is proper only if the government presents clear and convincing evidence that the primary purpose was to ensure security, military fitness, or order and discipline and not to secure evidence for a trial or disciplinary proceeding. Evidence disclosed during a legitimate inspection may be seized and admitted at a court-martial. (See MCM, Mil. R. Evid. 313.)

INVENTORIES

When a soldier is absent without leave, is about to be confined, or is being detained by civilian authorities, an inventory of that soldier's personal belongings is required. As with an inspection, an inventory may not be a pretext for search. Evidence obtained as a result of a lawful inventory is admissible in a court-martial. (See MCM, Mil. R. Evid. 313.)

COOPERATION WITH POLICE INVESTIGATORS

You should coordinate with military police and CID investigators for several important reasons. The offense may be more serious than you realize. If it is complicated, sophisticated investigative techniques may be necessary. They may include lineups, fingerprinting, expert interrogation, or laboratory analyses. Also, the offense may be one of a series of crimes currently under investigation.

ARs 190-30 and 195-2 require you to report criminal activity, known or suspected, to the military police for appropriate investigation. This requirement applies to persons subject to the UCMJ, Department of Defense civilian employees in connection with their assigned duties, government property under Army jurisdiction, or incidents occurring in areas under Army jurisdiction.

PRESERVATION OF PHYSICAL EVIDENCE

You must preserve and safeguard in your custody any physical evidence of an offense. As few people as possible should handle it; everyone who touches it may have to appear at the trial. Physical evidence must be carefully marked, to ensure later identification, and recorded on a chain-of-custody document. (See AR 195-5.) The chain-of-custody document, such as DA Form 4137, is a record of everyone who has handled an item from when it was originally identified as evidence until the trial. Physical evidence should then be turned over to professional investigators as soon as possible.

Perishable and unstable evidence requires special attention for preservation. Sometimes professional assistance is necessary, for example, to preserve a fingerprint or a tire track. The military police can usually assist.

The first person to assume custody of the physical evidence marks it immediately. This person may mark the item itself, usually with his initials, the date, and the

time. If the evidence cannot be marked, he should place it in a sealed, marked container. The container must be tamper-proof or sealed to show an absence of tampering. When physical evidence is introduced at trial, counsel must show that it is the same item found at the scene of the crime or otherwise connected with the offense and is unaltered.

PRETRIAL CONFINEMENT

While charges are being processed, you may need to confine or restrict the suspect. Pretrial confinement is limited to persons reasonably suspected of a serious offense and in which it is necessary to ensure their presence at trial or to prevent them from committing other offenses. In determining whether confinement is appropriate, you should remember that it deprives the accused of liberty while he is presumed innocent and makes his defense preparations difficult. Your convenience is not enough to justify curtailing a soldier's freedom, and you may not use it as punishment. Also, an accused will receive day-for-day credit for his confinement against the adjudged sentence.

Grounds for pretrial confinement are the accused's foreseeable, serious criminal misconduct or risk of his absence before trial. Serious criminal misconduct includes-

Intimidation of witnesses.

Obstruction of justice.

Serious injury to others.

Serious threats to the safety of the community.

When a soldier is placed in pretrial confinement, he must be informed of-

The nature of the offenses for which he is confined.

His right to remain silent and that anything he says may be used against him.

His right to request counsel and to retain civilian counsel at no expense to the government.

The procedures for review of pretrial confinement.

Developments in military decisional law and requirements for magisterial review have made pretrial confinement considerations increasingly complex. If you consider confinement necessary, consult with the staff judge advocate, the chief of military justice, or the trial counsel.( See MCM, AR 27-10, and AR 600-31.)

Types of confinement include--