Government Action

  1. militarydefenselawyers311The Fourth Amendment does not apply unless there is a governmental invasion of privacy. Rakas v. Illinois, 439 U.S. 128, 140-49 (1978).
  2. Private searches are not covered by the Fourth Amendment.
    1. Searches by persons unrelated to the government are not covered by the Fourth Amendment. (1) United States v. Jacobsen, 466 U.S. 109 (1984). No government search occurred where Federal Express employees opened damaged package. (2) United States v. Hodges, 27 M.J. 754 (A.F.C.M.R. 1988). United Parcel Service employee opened package addressed to accused as part of random inspection. Held: this was not a government search.
    2. Searches by government officials not acting in official capacity are not covered by the Fourth Amendment. (1) United States v. Portt, 21 M.J. 333 (C.M.A. 1986). Search by military policeman acting in non-law enforcement role is not covered by the Fourth Amendment. (2)
      United States v. Daniels, 60 M.J. 69 (C.A.A.F. 2004). Whether a private actor serves as an agent of the gov’t hinges not on the motivation of the individual, but on the degree of the government’s participation/involvement.
    3. Searches by informants are covered by the Fourth Amendment.
      But see United States v. Aponte, 11 M.J. 917 (A.C.M.R. 1981). Soldier “checked” accused’s canvas bag and found drugs after commander asked soldier to keep his “eyes open.” Held: this was not a government search because soldier was not acting as agent of the commander.
    4. Searches by AAFES detectives are covered by Fourth Amendment.
      United States v. Baker, 30 M.J. 262 (C.M.A. 1990). Fourth Amendment extends to searches by AAFES store detectives; Bakeroverruled earlier case law that likened AAFES personnel to private security guards.
  3. Foreign searches are not covered by Fourth Amendment.
    1. Searches by U.S. agents abroad.
      United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). Fourth Amendment does not apply to search by U.S. agents of foreigner’s property located in a foreign country.
    2. Searches by foreign officials. (1) The Fourth Amendment is inapplicable to searches by foreign officials unless U.S. agents “participated in” the search. Mil. R. Evid. 311(c) and 315(h)(3). (a) “Participation” by U.S. agents does not include: (i) Mere presence. (ii) Acting as interpreter. (b) United States v. Morrison, 12 M.J. 272 (C.M.A. 1982). Fourth Amendment did not apply to German search of off-post apartment, even though military police provided German police with information that led to search. (c) United States v. Porter, 36 M.J. 812 (A.C.M.R. 1993). Military police officer participated in Panamanian search by driving accused to Army hospital, requesting blood alcohol test, signing required forms and assisting in administering test. (2) A search by foreign officials is unlawful if the accused was subjected to “gross and brutal maltreatment.” Mil. R. Evid. 311(c)(3).