Search and Seizure in the Military
Were you searched or inspected? The answer will have a serious impact on what the government can do with the evidence it has seized or collected.
The rules governing military inspections are governed by the Military Rules of Evidence (MRE) 211-217. They lay out the requirements for the Military to conduct a lawful inspection to maintain the effectiveness, good order, and discipline within a unit without violating the 4th Amendment rights of any member of the unit.
Basically, the 4th Amendment is the broad rule, and says 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.”
This means that if anyone (including the military) wants to toss your gear and look for contraband, then they have to have probable cause to justify their actions. This is the rule that governs, but it has some exceptions.
The President recognized that the military is a unique environment, and military Commanders have a heightened need to maintain good order and discipline within their respective commands. So, under the authority granted to him by Congress in Art. 36, UCMJ, he promulgated MREs 211-217 that set limits and requirements that, if followed by the command, will not violate the 4th Amendment rights of those inspected.
You have a right to be protected from unreasonable searches, and the government frequently gets the requirements wrong, and the rules say that IF they get it wrong, they CANNOT use it against you at trial. The odds that they got something wrong go up with the complexity of the search or the personal nature of the item or evidence seized. This is especially true at smaller units with no formal urinalysis program or who may not have experienced legal counsel. The government also gets it wrong in cases where misconduct is suspected, but the suspicion is not enough to get to probable cause for a warrant, so they do a search. So, has the government taken some form of evidence from or about you?
- Cell phone
- Property such as weapons or cash
- Drug paraphernalia
Then you need experienced legal counsel to challenge the government’s evidence to ensure that they followed the rules and did not violate your rights. REMEMBER: You also have a right not to talk to them about what they found. REMAIN SILENT in response to their questions. REQUEST COUNSEL if asked to waive your rights.