Vehicle Searches

[GRP_4_CHRIST]

I've been around in the Army a day or two now and I've seen health & welfares to include search of POV's (Personal Owned Vehicles). This includes searches with MWD's (Military Working Dogs). Personally, I don't see the problem walking a dog along the outside of a closed door. I don't see the problem with any drugs being found used for a urine analysis then possible further UCMJ action is a positive is found. Commandes are responsible to ensure Soldiers are maintaining a safe vehicle and safe living enviroment even off post. I don't expect my commander to neccesarily to come over and check my home but I do expect someone in my chain of command to know where I live and how I'm living (i.e. clean enviroment, no off-limits areas, etc). Same thought line applies to my vehicle (i.e. no bald tires, no signs of drinking and driving, etc).

I guess my big question is then, does a commander have the right to search POV's? What about telling Soldiers to park in a common area and then having the dogs sweep the outside of the vehicles?

 

[fozzy2]

There are rarely simple answers to questions concerning 4th Amendment rights.

My first question would be: Have the POV's been driven on base? Commanders have great discretion in searching vehicles that drive on post, and even greater discrection if the post is overseas (and hence the court considers the post boundary the equivalent of an international boundary). This would be very different from a commander ordering someone to drive their POV onto post in order to search it.

I'm not aware that this kind of thing (a "sweep" with dogs) has been litigated in the millitary setting. Indeed, it really hasn't been specifically addressed by the U.S. Supreme Court -- though there have been indications that our rights to privacy will be flushed even further down the drain. In the last 'big' dog sniff case the Supreme Court decided ("Caballes"), the dissent warned that the decision's language would result in law enforcement thinking it could conduct warrantless dog-sniff sweeps of parking lots, etc. That was not the specific issue before the court, however, so the majority just kind of ignored the possibility. It probably won't be too long before such a case gets cert for the Supreme Court.

Back to the military setting, without doing any research I'd guess that under most situations the legal maxim "If you are on base, you are SOL" applies. The details might have to be twisted out, but ultimately I think a command probably *could* come up with a program along those lines. There would be issues like "Is it an 'inspection' or a 'search'? , etc. but if you ever want to drive your POV on base you are probably going to have to give up a lot of privacy. There are rules to "health and welfare" inspections, and they are not supposed to be masquerades for criminal searches, but as long as the rules are followed, if anything is found then naturally it can be used as evidence.

I am rambling....it is finals....need R & R.....

 

[DRTDEVL]

It's even simpler than that, fozzy... It's called "Implied Consent".

Ever look at the signs posted at the gate of every installation around the world? In a nutshell, they are saying that by continuing beyond that point, you and your vehicle may be subjected to a search at any time, with or without reason.

Kinda like how you are consenting to a BAC test every time you get behind the wheel... The rule is there, and you have been notified of the possibility that you consent to being tested at any time just because you are operating a vehicle... It's no longer something you can legally refuse without consequence.

 

[fozzy2]

It's even simpler than that, fozzy... It's called "Implied Consent".

Ever look at the signs posted at the gate of every installation around the world? In a nutshell, they are saying that by continuing beyond that point, you and your vehicle may be subjected to a search at any time, with or without reason.

Kinda like how you are consenting to a BAC test every time you get behind the wheel... The rule is there, and you have been notified of the possibility that you consent to being tested at any time just because you are operating a vehicle... It's no longer something you can legally refuse without consequence.

I would point out that "implied consent" does not necessarily strip a person of all of their rights. Even evidence gathered from a vehicle search on a military base can be suppressed under certain conditions. Even 'implied consent' only goes so far. As for the signs ("Signs, signs, everywhere a sign...") I would point out that anyone can put up a sign that says just about anything, but it doesn't necessarily mean a thing legally. Putting up a sign that says "We are not responsible for accidents" is not a talisman against lawsuits.

I would also point out that you are not consenting to a BAC test "every time you get behind the wheel." For example, the police need 'reasonable suspicion' to simply make the traffic stop (though that can be complicated in an on-base situation). Also, "implied consent" is kind of a mis-wording. You do not really consent to have a BAC test run on you if you are stopped. You can still refuse the BAC test. Thus you haven't consented to it at all. It should be called "Implied Notification" because what it really does is assumes you *know* that if you refuse the test, your license may be administratively revoked. [generally speaking, it is in your best interests to NOT consent to the BAC test if stopped, but that is probably well discussed on the DWI forum....] [and of course nothing here should be construed as 'legal advice', it is just general discussion material]

For most people, in most situations, it may be as simple as reading the sign. But in law it is often the case that - as Clausewitz explained about war: In war, the most important things are the simplest things. But the simplest things are also the hardest. Keeps lawyers employed...

 

[Andy104]

Agree with DirtDevil

I totally agree with DirtDevil on this one, the Commander has the right. Especially if it is stated at the gate, and in post SOP's.

 

[fozzy2]

In general that is correct, but the devil is in the details.

To begin with, there are "closed" and "open" military bases, and there can even be issues over what exactly a "base" is. There can also be "open" and "closed" areas within a base. Joint use and civilian roads through military installations can pose problems. Gate inspections, in particular, are given almost unlimited leeway -- but even there you can find devilish questions (can you refuse an entrance inspection and turn around and leave? What if you are 'on' base but outside the perimeter fence and/or signage?). Legally speaking, there are also differences between "searches" and "inspections". For example, what everyone else might call a "gate search" might actually be considered by a court to be an "administrative inspection." There are also novel situations like someone taken to an emergency room in a military hospital or on-base, who was picked up (perhaps unconcious) offbase.[well, they probably aren't driving, but it is still a 'search'] It is situations like these that keep lawyers employed.

To quote an information letter for commanders "The law on inspecting and searching vehicles and individuals on open bases or on unsecured internal areas of closed bases is complex. Questions about the legality of a particular installation's procedure should be referred to the servicing Judge Advocate or the appropriate legal office...."