Persons Who Can Authorize a Search. Mil. R. Evid. 315(d)
Overview of persons who can authorize a search. Mil. R. Evid. 315(d):
- Any commander of the person or place to be searched (“king-of-the-turf” standard).
- The unit commander can authorize searches of: (1) Barracks under his control; (2) Vehicles within the unit area; and (3) Off-post quarters of soldiers in the unit if the unit is overseas.
- The installation commander can authorize searches of: (1) All of the above; (2) Installation areas such as: (a) On-post quarters; (b) Post Exchange (PX); and, (c) On-post recreation centers.
- Delegation prohibited. Power to authorize searches is a function of command and may not be delegated to an executive officer. United States v. Kalscheur, 11 M.J. 378 (C.M.A. 1981)
- Devolution authorized. United States v. Law, 17 M.J. 229 (C.M.A. 1983). An “acting commander” may authorize a search when commander is absent. See also United States v. Hall, 50 M.J. 247 (C.A.A.F. 1999). Commander may resume command at his discretion; no need not have written revocation of appointment of acting commander.
- More than one commander may have control over the area to be searched. United States v. Mix, 35 M.J. 283 (C.M.A. 1992). Three commanders whose battalions used common dining facility each had sufficient control over the parking lot surrounding facility to authorize search there.
- A military magistrate or military judge may authorize searches of all areas where a commander may authorize searches. See chapter 8, AR 27-10, Military Justice (3 Oct 2011), for information on the military magistrate program.
- In the United States a state civilian judge may issue search warrants for off-post areas.
- In the United States a federal civilian magistrate or judge may issue search warrants for:
- Off-post areas for evidence related to federal crimes; and,
- On-post areas.
- Overseas a civilian judge may authorize a search of off-post areas.