FIRST PRINCIPLESConstitutional Matters: Search and Seizure

2014 (September Term) 

United States v. Olson, 74 M.J. 132 (the Fourth Amendment protects persons from unreasonable searches of, and seizures from, their homes; a warrantless search is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search that is conducted pursuant to consent). 

United States v. Buford, 74 M.J. 98 (the protections provided by the Fourth Amendment do not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official). 

(in determining whether a private individual was acting as an agent of the government during a search and seizure for purposes of invoking Fourth Amendment protections, the fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case; rather, it is necessary to examine all the facts and circumstances in a case when determining an individual’s authority as an agent of the government). 

(in this case, although the individual involved in the search and seizure of appellee’s fake Facebook page and email account served as a member of the security forces, he was not acting as an agent of the government to invoke the protections of the Fourth Amendment where (1) he was off duty, (2) he was not a criminal investigator, (3) the government had no prior knowledge of his activities, (4) his actions could be characterized as little more than the type of steps that a curious, tech-savvy individual might take at the behest of a distraught friend, (5) he told his friend that it was up to her to decide what to do with the information that was discovered and that it was up to her to report the matter to appropriate authorities, (6) once investigators learned of the matter, they took steps to exclude him from further involvement in the case, (7) the record did not reveal any other clear indices of government encouragement, endorsement, or participation in the challenged search, and (8) the military judge erred when she applied a subjective test and relied on the individual’s expectations and motivations when making her determination, rather than applying an objective test and weighing the totality of the circumstances in determining whether he was acting as a government agent). 

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (the Fourth Amendment of the US Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable). 

(the Fourth Amendment provides that 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; a search that is conducted pursuant to a warrant is presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions; where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies).   

(the Fourth Amendment and its antecedent case law-derived search and seizure rules do not apply to searches conducted by private parties; as such, once a private party has conducted a search, any objectively reasonable expectation of privacy a person may have had in the material searched is frustrated with respect to a subsequent government search of the same material; however, there are two essential limits to the private search doctrine; first, the government cannot conduct or participate in the predicate private search; specifically, to implicate the Fourth Amendment in this respect, there must be clear indices of the government’s encouragement, endorsement, and participation in the challenged search; there is no bright line test as to when the government involvement goes too far; rather, courts have relied on the particular facts of particular searches to make this determination; the second limitation on the private search doctrine pertains to the scope of any subsequent government search; the government may not exceed the scope of the search by the private party, including expansion of the search into a general search; this rule is based on the theory behind the private search doctrine; once the frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information unless the government uses information for which the expectation of privacy has not already been frustrated; thus, the additional invasions of a person’s privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search; the scope of the private search can be measured by what the private actor actually viewed as opposed to what the private actor had access to view).   

(the exclusionary rule is a judicially created remedy for violations of the Fourth Amendment; the rule applies to evidence directly obtained through violation of the Fourth Amendment as well as evidence that is the indirect product or fruit of unlawful police activity; suppression is not an automatic consequence of a Fourth Amendment violation, but turns on the applicability of specific exceptions as well as the gravity of government overreach and the deterrent effect of applying the rule; evidence that would otherwise be suppressed is admissible if it meets a limited number of exceptions to the exclusionary rule, such as (1) evidence can be derived from an independent source; (2) it has an attenuated link to the illegally secured evidence; or (3) it inevitably would have been discovered during police investigation without the aid of the illegally obtained evidence). 

(the exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs). 

2012 (September Term)

United States v. Hutchins, 72 M.J. 294 (a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes). 

United States v. Kelly, 72 M.J. 237 (the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures).

(official intrusions into areas where there is a reasonable expectation of privacy require search authorization supported by probable cause, unless they are otherwise lawful under the Military Rules of Evidence or the Constitution of the United States as applied to members of the armed forces). 

(the Fourth Amendment provides in relevant part that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; however, the Fourth Amendment does not protect against all searches; rather, it proscribes only unreasonable searches; the ultimate standard set forth in the Fourth Amendment is reasonableness). 

United States v. Irizarry, 72 M.J. 100 (a Fourth Amendment “search” only occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable). 

(the Fourth Amendment does not prohibit all warrantless searches, only those that are unreasonable; whether a search is unreasonable is evaluated on a case-by-case basis, depending on the facts and circumstances of each situation; with few exceptions, the warrantless search of a home is unreasonable). 

2009 (September Term)

United States v. Cowgill, 68 M.J. 388 (the Fourth Amendment requires that no warrants shall issue, but upon probable cause).

2008 (September Term)

United States v. Weston, 67 M.J. 390 (the Fourth Amendment provides that 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).

2008 (Transition)

United States v. Michael, 66 M.J. 78 (the Fourth Amendment does not protect against all searches; rather, it proscribes only unreasonable searches; the ultimate standard set forth in the Fourth Amendment is reasonableness; for the purposes of military law, a Fourth Amendment search is a government intrusion into an individual’s reasonable expectation of privacy).


United States v. Stevenson, 66 M.J. 15 (while military service necessitates a reduced expectation of privacy in bodily fluids with respect to drug testing, servicemembers otherwise generally retain their Fourth Amendment right against unreasonable search and seizure).


(while the degree of an intrusion may inform whether an objectively reasonable expectation of privacy exists, the Supreme Court has not adopted a de minimis exception to the Fourth Amendment’s warrant requirement; to the contrary, the Supreme Court has held that the need for a warrant is not relieved by the use of advanced search methods that are imperceptible to the subject of the search; thus, to the extent that US v. Fitten , 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF 2000), stand for the proposition that there is a de minimis exception to the Fourth Amendment or to MRE 312, they are overruled).   


(in this case, the Fourth Amendment problem was that the second vial of blood taken from appellant and provided to law enforcement authorities represented a distinct search and seizure from that undertaken incident to appellant’s treatment for diabetes with respect to the first vial of blood; whatever might be said of appellant’s expectation of privacy with regard to the blood draw itself, a search for DNA from the second vial of blood was not incident to his treatment for diabetes under MRE 312(f) and was not otherwise authorized by warrant or warrant exception).


United States v. Gallagher, 66 M.J. 250 (ordinarily the search of a home, to include a search of items, such as a briefcase within the home, is prohibited in the absence of a warrant; the prohibition does not apply, however, to situations in which voluntary consent has been obtained). 


(under the apparent authority doctrine, a search may be reasonable under the Fourth Amendment even though the person purporting to give consent lacks actual authority to consent, if, viewed objectively, the facts available to the law enforcement officer at the moment would warrant a man of reasonable caution to believe that the consenting party had authority over the premises or effects). 

(while the scope of consent to search a premises may be delimited by the consenter, if the consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization). 

United States v. Larson, 66 M.J. 212 (the Fourth Amendment of the Constitution generally requires probable cause for searches of places and things in which people have a reasonable expectation of privacy; in addressing Fourth Amendment privacy claims, the threshold issue is whether the person has a legitimate expectation of privacy in the invaded place; this inquiry invites a court to address whether the individual had a subjective expectation of privacy, and if so whether the subjective expectation of privacy is one that society is prepared to accept as reasonable).


United States v. Wallace, 66 M.J. 5 (Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted).



United States v. Rader, 65 M.J. 30 (a law enforcement officer does not violate the Fourth Amendment’s proscription against unreasonable searches and seizures where a third party who possesses common authority over the premises or effects consents to the search).



United States v. Long, 64 M.J. 57 (the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures). 




United States v. Daniels, 60 MJ 69 (the Fourth Amendment by its express terms protects individuals against unreasonable searches and seizures; under the Military Rules of Evidence, which implement the Fourth Amendment, evidence illegally seized by government agents from a protected place is inadmissible). 


(where appellant was not aware of police presence, his claim that police formed a moving roadblock while surveilling him on highway did not rise to a Fourth Amendment seizure).


(after accused’s brief detention for traffic stop concluded, encounter between accused and state trooper was consensual in nature and not a seizure subject to Fourth Amendment scrutiny, notwithstanding accused’s contention that trooper’s request for consent to search his vehicle initiated a subsequent detention; accused did not show that after issuing a citation, trooper prevented him from leaving, by physically blocking his vehicle, engaging in questioning, or otherwise signaling to accused that he was not free to leave).


(accused’s initial consensual encounter with state trooper during traffic stop evolved into a Fourth Amendment seizure, where shortly after accused gave his consent to trooper for a routine search of his vehicle, and trooper began his search, between 10 to 12 ATF agents arrived on the scene to conduct an intensive search of vehicle, and began questioning him; under the circumstances a reasonable person would not have felt free to decline the agents’ requests and terminate the encounter).


(Fourth Amendment seizure was an investigatory detention rather than an arrest, where there was no evidence that the ATF agents brandished their weapons or handcuffed accused, or that accused was prevented from speaking to his passengers).


(investigatory detention was supported by reasonable suspicion that accused was transporting one or more handguns for unlawful resale where surveillance indicated a pattern of apparent straw purchases of handguns by accused and co-actor during days preceding the stop, and ATF had received a tip from a confidential informant that accused would be traveling to New York, suggesting to agents the possibility of interstate transport and sale of the guns).



United States v. McMahon, 58 MJ 362 (the Fourth Amendment protects the security of one’s privacy against arbitrary intrusion by the police; a search of a residence conducted without a warrant based on probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search conducted with the resident’s consent).


United States v. Hall, 50 MJ 247 (direction to maintain the status quo and not let anyone leave a given room did not violate the Fourth Amendment where there was probable cause to believe that evidence of criminal activity was on the premises; temporary securing of a dwelling to prevent the removal or destruction of evidence is reasonable).

(there is a key difference between probable cause to search and probable cause to apprehend that concerns the timeliness of the given information:  probable cause to search must be based on timely information with a nexus to the place searched; whereas probable cause to apprehend does not grow stale with time, absent the subsequent discovery of exculpatory information that would undermine the prior existing probable cause).

(officer did not loose neutrality by re-entering room to corroborate information supporting probable cause; such conduct is not reflective of a foul motivation or vindictiveness).

(in the absence of regulations to the contrary, commander may resume command during a temporary term of absence at his discretion).

United States v. Owens, 51 MJ 204 (it is not a search for law enforcement officials to look into an automobile through a window or open door).

(officer had probable cause to search automobile based on knowledge of recent car burglaries and presence of large quantity of stereo equipment in automobile with wires cut short rather than disconnected).

(where there was reason to believe that appellant stole numerous items from several vehicles in the dormitory parking lot, commander had probable cause to authorize search of appellant’s dormitory room where he correctly concluded that the most logical places for appellant to store items were his automobile and dormitory room, and some items were not found in search of appellant’s automobile; MRE 315(f)(2)).

(when reviewing a commander’s decision to authorize a search, an appellate court determines whether the commander had a substantial basis for concluding that probable cause existed).

(there are two constitutional bases for the automobile exception to the warrant requirement:  (1) mobility, and (2) reduced expectation of privacy; without deciding whether an automobile must be operable at time of a search under the automobile exception, Court holds search lawful where officer did not know vehicle was inoperable and had no duty to ascertain functional capability of vehicle; MRE 315(g)(3)).

(prosecution bears burden of showing consent by clear and convincing evidence as determined by the totality of the circumstances; MRE 314(e)(5)).

(in reviewing consent to search, appellate court must be satisfied by clear and convincing evidence that subtle and implicit pressures did not overwhelm appellant’s will; review of a military judge’s determination of consent will be deferential, and the determination will not be overturned unless it is unsupported by the evidence or clearly erroneous).

(when the routine procedures of a law enforcement agency would inevitably find the same evidence, the rule of inevitable discovery applies even in the absence of a prior or parallel investigation; MRE 311(b)(2)).

(where item of stolen property was voluntarily surrendered by appellant’s roommate, appellant’s Fourth Amendment rights were not violated because appellant had no reasonable expectation of privacy in his roommate’s portion of the room or his roommate’s property; MRE 311(a)(2)).

United States v. Richter, 51 MJ 213 (observation of several items in truck during lawful investigative stop provided probable cause to believe that appellant had stolen government property in his truck, which provided legal basis for search of truck under automobile exception and MRE 315(g)(3)).

(consent is a question of fact to be determined from all the circumstances; the prosecution has the burden of proving consent by clear and convincing evidence; on appeal, the evidence will be reviewed in the light most favorable to the government and a military judge’s finding of voluntary consent will not be overturned unless it is unsupported by the evidence or clearly erroneous).

(law enforcement officials may properly use sting operations and informants in order to gain valid consent; however, where a third party is used by law enforcement to tell a person that law enforcement authorities have a warrant, the prosecution cannot establish voluntary consent merely by showing the absence of direct communication between law enforcement authorities and the person giving consent).

(search cannot be justified as based on consent where that consent was given only after the official conducting the search has asserted that he has a warrant; such purported consent is mere acquiescence to authority).

(where appellant was informed during pretext phone conversation that law enforcement officials had a warrant to search his home, the mere mention of a warrant or command authorization did not vitiate a subsequent consent where that consent was shown, under the totality of the circumstances, to be truly voluntary).

(reasonable suspicion justifying an investigative stop under MRE 314(f)(1) existed where:  (1) agents received information that appellant had taken a government-owned bicycle for personal use; (2) appellant had been observed loading tents into a privately owned vehicle; (3) a medical cabinet surrendered to law enforcement reportedly came from appellant; and (4) after a pretext phone call appellant was observed loading a large box into his truck and driving toward the gate).

(once officers make a valid investigative stop, it is not a violation of the Forth Amendment for them to observe items in plain view).

United States v. Vassar, 52 MJ 9 (military judge’s ruling on a motion to suppress is reviewed for an abuse of discretion, and the judge will be reversed if the military judge’s findings of fact are clearly erroneous or if the decision was influenced by an erroneous view of the law; consent to search is a factual determination that will not be disturbed on appeal unless that determination is unsupported by the evidence or clearly erroneous).

(military judge erred in evaluating issue of consent to search if that judge applied the appellate standard of evaluating conflicts in the evidence in the light most favorable to the government).

(any incorrect view of the law on consent to search held by the military judge was harmless where the Court found there was no evidence suggesting a lack of consent).

(assuming that any error in the military judge’s evaluation of evidence on issue of consent to search implicates the Fourth Amendment, the error was harmless beyond a reasonable doubt where:  (1) appellant’s consent was given immediately; (2) appellant was aware of his surroundings; (3) the atmosphere was non-coercive and even light-hearted; (4) first consent form advised appellant of right to refuse; (5) second consent form was signed with knowledge that urine sample would not be sent to lab without consent; (6) appellant’s statements reflect an awareness of the right to refuse consent; (7) appellant did not go so far in his testimony as to claim his consent was not voluntary; and (8) there was no conflicting evidence to resolve).

United States v. Wright, 52 MJ 136 (responding to a suspect that one would seek a warrant or authorization to search if consent is not given does not foreclose a finding of voluntary consent; this is significantly different than telling a suspect falsely that one has a warrant).

(appellant’s consent was not rendered involuntary by statement that, if appellant did not consent, law enforcement agent would get a search warrant where appellant was fully advised that he had the right to refuse to give consent and he waived that right).

United States v. Marine, 51 MJ 425 (a “stop and frisk” is a limited exception to the Fourth Amendment requirement for probable cause for government searches and seizures requiring, first, that the police officer’s stop must be justified at its inception by a reasonable suspicion that criminal activity is afoot and, second, that the stop be reasonably related in scope to the circumstances giving rise to the stop).

(race alone does not amount to reasonable suspicion to justify an investigative detention).

(the length of an investigative detention may be so long as to render the stop, even temporarily, of a person unreasonable under the Fourth Amendment where law enforcement did not diligently pursue a means of investigation that was likely to confirm or dispel the suspicions quickly).

(in determining whether evidence has been derived from illegal police activity and, therefore, is the fruit of the poisonous tree, the pertinent inquiry is whether the seizure of the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint considering factors such as temporal proximity between the illegality and the seizure of the evidence, the presence of intervening circumstances, and the flagrancy of the official misconduct).

(a lawful arrest of a person who was initially illegally detained or seized is an intervening circumstance sufficient to dissipate any taint caused by an earlier illegal stop).

(any taint derived from an initial improper investigative stop of appellant did not bar admission of evidence seized during a subsequent search incident to apprehension where:  (1) there was an intervening lawful apprehension of appellant for disrespect which was sufficient to dissipate any taint caused by an earlier illegal stop; and (2) any misconduct by guards was not so flagrant as to warrant application of the exclusionary rule).

United States v. Fogg, 52 MJ 144 (reviewing a motion to suppress videotape seized under a warrant which authorized seizure of “crack cocaine, packaging and repackaging equipment, papers proving occupancy, records, weapons, papers, RF detectors, photos, cellular phone[s], police scanners, scales/paraphernalia”, court holds that there was a valid warranted seizure of the videotape which was covered by the scope of the search warrant because:  (1) officers executing warrants are often required to exercise realistic, common-sense judgment, and they are not obliged to interpret a warrant narrowly; and, (2) videotape fell within the scope of the warrant which authorized the seizure of “photographs”).

Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site