Probable cause searches

(a) General rule. Evidence obtained from reasonable searches conducted pursuant to a search warrant or search exigent or circumstances described in this rule, is admissible at trial when relevant and not otherwise inadmissible under these rules or the Constitution of the United States as applied to members of the Armed Forces. (b) Definitions. As used in these rules: under the (1) “Search authorization” means express permission, written or oral, issued by competent military authority to search a person or an area for specified property or evidence or for a specific person and to seize such property, evidence, or person. It may contain an order directing subordinate personnel to conduct a search in a specified manner. (2) “Search warrant” means express permission to search and seize issued by competent civilian authority or under R.C.M. 703A. (3) “Warrant for wire or electronic communications” means a warrant issued by a military judge pursuant to 18 U.S.C. §§ 2703(a), (b)(1)(A), or (c)(1)(A) in accordance with 10 U.S.C. § 846(d)(3) and R.C.M. 309(b)(2) and R.C.M. 703A. A search (c) Scope of Search Authorization. authorization may be valid under this rule for a search of: (1) the physical person of anyone subject to military law or the law of war wherever found; (2) military property of the United States or of nonappropriated fund activities of an Armed force of the United States wherever located; (3) persons or property situated on or in a military installation, encampment, vessel, aircraft, vehicle, or any other location under military control, wherever located; or (4) nonmilitary property within a foreign country. (d) Who May Authorize. A search authorization under this rule is valid only if issued by an impartial individual in one of the categories set forth in paragraphs (d)(1), (d)(2), and (d)(3) of this rule. Only a military judge may issue a warrant for wire or electronic communications under this rule. An otherwise impartial authorizing official does not lose impartiality merely because the official is present at the III-13 scene of a search or is otherwise readily available to persons who may seek the issuance of a search authorization; nor does such an official lose impartial character merely because the official previously and impartially authorized investigative activities when such previous authorization is similar in intent or function to a pretrial authorization made by the United States district courts. (1) Commander. A commander or other person serving in a position designated by the Secretary concerned as either a position analogous to an officer in charge or a position of command, who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to military law or the law of war; (2) Military Judge or Magistrate. A military judge or magistrate regulations if authorized under prescribed by the Secretary of Defense or the Secretary concerned; or (3) Other competent search authority. A competent, impartial official as designated under regulations by the Secretary of Defense or the Secretary concerned as an individual authorized to issue search authorizations under this rule. (e) Who May Search. petty warrant (1) Search Authorization. Any commissioned officer, officer, officer, noncommissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security forces, military police, or shore patrol, or person designated by proper authority to perform guard or police duties, or any agent of any such person, may conduct or authorize a search when a search authorization has been granted under this rule or a search would otherwise be proper under subdivision (g). (2) Search Warrants. Any civilian or military criminal investigator authorized to request search warrants pursuant to applicable law or regulation is authorized to serve and execute search warrants. The execution of a search warrant affects admissibility only insofar as exclusion of evidence is required by the Constitution of the United States or an applicable federal statute. (f) Basis for Search Authorizations. (1) Probable Cause Requirement. A search authorization issued under this rule must be based upon probable cause. III-14 (2) Probable Cause Determination. Probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched. A search authorization may be based upon hearsay evidence in whole or in part. A determination of probable cause under this rule will be based upon any or all of the following: (A) written statements communicated to the authorizing official; (B) oral statements communicated the authorizing official in person, via telephone, or by other appropriate means of communication; or to (C) such information as may be known by the authorizing official that would not preclude the officer from acting in an impartial fashion. The Secretary of Defense or the Secretary concerned may prescribe additional requirements through regulation. (g) Exigencies. Evidence obtained from a probable cause search is admissible without a search warrant or search authorization when there is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction, or concealment of the property or evidence sought. Military operational necessity may create an exigency by prohibiting or preventing communication with a person empowered to grant a search authorization.