DEPARTMENT OF THE ARMY PAMPHLET 27-1 00-61 ~ MILITARY LAW REVIEW VOL. 61 Articles THE SPECIFICITY REQUIRED IN MILITARY SEARCH WARRANTS THE ADMINISTRATION OF JUSTICE IN THE PAKISTAN AIR FORCE SEARCH OF PREMISES, VEHICLES, AND THE INDIVIDUAL INCIDENT TO APPREHENSION Comments THE IDENTIFICATION OF ORIGINAL, REAL EVIDENCE Book Reviews HEADQUARTERS, DEPARTMENT OF THE ARMY SUMMER 1973 MILITARY LAW REVIEW The Military Law Review provides a forum for those interested in military law to share the product of their experience and re- search, Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense directory. 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REPRINT PERMISSION : Contact Editor, Militar?/ Law Re- view, The Judge Advocate General’s School, Charlottesville, Vir- ginia 22901. This Review may be cited as 61 MIL. L. REV. (number of page (1973) .) i Pam 27-100-61 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-61 WASHINGTON, D.C., Summer 1973 MILITARY LAW REVIEW - VOL. 61 Page Articles : The Specificity Required in Military Search Warrants Captain Howard C. Eggers 1 The Administration of Justice in the Pakistan Air Force Squadron Leader Sheikh Mohammad Anwar 41 Search of Premises, Vehicles, and the Individual Incident to Apprehension Major Francis A. Gilligan 89 Comments : The Identification of Original, Real Evidence Captain Edward J. Imwinkelried 145 Book Reviews : 183 Books Received : 187 iii THE SPECIFICITY REQUIRED IN MILITARY SEARCH WARRANTS* By Captain Howard C. Eggers ** Thfs ai*ticle discmses a need for a definite description of the place to be searched and the thiizgs to be seized in military search warrants. The specificity staiidards foi. search zoawaiits are identified, defined and analyzed. These standards, revealed in federal case law and present military practices, establish certain guidelines to be followed and that the standards of specificitg .ilaztst be applied to the place, the penon, aiid the thing. I. INTRODUCTION Historically, the Fourth Amendment to the United States Con- stitution is a product of the abuses which British officials visited on the American colonists by means of general warrants and writs of assistance.’ To combat these abuses, the drafters of the Con- stitution adopted the fourth amendment which prohibits unrea- sonable searches and seizures and provides that warrants to search are valid only if there is probable cause for their issuance and they specifically describe the place to be searched and the things to be seized.‘ Recognizing the historical bases for the amendment, the Su- preme Court, as early as 1886, noted that it was intended to pro- tect against indiscriminate, governmental invasions “of the sanc- tity of a man’s home and the privacies of life.” But the Court at * This article is adapted from the author’s thesis prepared as a member of the 21st Advanced Class, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia. The opinions and conclusions presented here- in are those of the author and do not necessarily represent the views of The Judge Advocate General’s Schocl or any other governmental agency. **JAGC, U.S.Army; Instructor, The Artillery School, Fort Sill, Oklahoma. B.S. 1964, J.D. 1967, University of San Francisco; LL.M. 1970, Georgetown University. Member of the Bars of California, U.S. Supreme Court, U.S. Court of Military Appeals and U.S. Court of Appeals for the 9th Circuit. 1 Boyd v. United States, 116U.S.616, 624-630 (1886) ; Warden v. Hayden, 387 U.S. 294, 301 (1967). 2 U.S. CONST.amend. IV 3 Boyd v. United States, 116 U.S. 616, 650 (1886). 1 61 MILITARY LAW REVIEW’ first emphasized the protection of the “home” concept rather than ‘(privacy.” It tied protection to property law concepts, analy- zing the validity of searches in terms of constitutionally protected geographic areas and granting more protection to certain places than to ~thers.~ In the modern, electronic age, when individuals have become more susceptible to governmental surveillance, the Supreme Court has steadily moved to liberate the fourth amendment from artifi- cial property law concepts.: In recent years the Court has eni- phasized the concLpt of a right of personal privacy. In C;/iswold v. Co?znecticut,‘ Mr. Justice Douglas, speaking for five members of the Court, described the various guarantees of the Bill of Rights as creating “zones of privacy.” He specifically recognized that the role of the fourth amendment is to insure the “right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures.” Mr. Justice Stewart in Katz v. United States reiterated this approach when he pointed out that “the Fourth Amendment protects people, not places.” ’ A. THE ROLE OF THE SEARCH TYARRA-YT Since the first clause of the fourth amendment proscribes un- reasonable searches, reasonableness is the general standard which both civilian and military courts use when examining a search.’” Such a standard, of course, must ordinarily be applied on an ad hoc basis.I1 However, the courts are in agreement that any gen- eral or exploratory search so endangers the right of privacy that it could never be reasonable.I? 4 Warden v. Hayden, 387 U.S. 294, 304 (1967). 5 Id. 381 U.S. 479 (1965). Id. at 484 (emphasis added j. 389 U.S. 347 (1967). Id. at 351. 1’’ Go-Bart Importing Co. v. United States, 282 U.S. 314 (19.31): Cnited States v. Doyle, 1 U.S.C.M.A. 545, 4 C.M.R. 137 (1952) : United State:: v. Ball, 8 U.S.C.M.A. 25, 23 C.hI.R. 249 (1957). 11 United States v. Rabinowitz, 339 U.S. 56 (1950) ; United State: Y. Doyle, 1 U.S.C.M.A. 545, 4 C.M.R. 137 (1952) ; Vnited States v. Su.anson, 3 U.S.C.M.A. 671, 14 C.M.R. 89 (1954); United States v. Rhodes, 24 C.M.R. 776 (ABR 1957). 12 Boyd v. United States, 116 U.S. 616 (1886); United States v. Wroblewski, 105 F.2d 444 (7th Cir,, 1939) ; United States v. BroIvn. 10 U.S.C.M.A. 482, 28 C.M.R. 48 (1959) ; United States v. Hartsook, 15 U.S.C.M.A. 291, 35 C.M.R. 263 (1965); United States v. Hillan, 26 C.M.R. 771 (NBR 1958j . 2 SPECIFICITY It is the role of the search warrant to prevent the general or exploratory search ; and while some warrantless searches have been found to be reasonable under the first clause of the fourth amendment,I3 searches under the authority of warrants must con- form to the requirements of the amendment's second clause. Such warrants must be issued only upon probable cause and must specifically describe the place to be searched and the things to be seized.14 The Supreme Court of the United States has always considered the use of a search warrant to be the best means of limiting an intrusion into an individual's privacy.15 More recently the United States Court of Military Appeals has also expressed its opinion that written authorizations to search are very desirable,l6 even though written warrants are not required under the Uniform Code of Military Justice.17 The court has clearly stated that it would like to see written search authorization, and there is a possibility that it might make such authorizations mandatory at some time in the future.lX In partial response to the Court of Military Appeals' expressed preference for written authorizations to search, the Department of Army recently promulgated Chapter 14 to Army Regulation 27-10. This chapter authorizes the issuance of written search warrants by military judges.I9 l3 Pee Chime1 v. California, 395 U.S. 752 (1969) ; Chambers v. Maroney, 399 U.S. 42 (1970) ; Warden v. Hayden, 387 U.S. 294 (1967). I4 V.S. COXST. amend. IV. Agnello v. United States, 369 U.S. 20 (1925) ; Jones v. United States, 362 U.S. 257 (1960) ; Chime1 v. California, 395 U.S. 752 (1969). This article will not consider whether a warrant is a prerequisite to a search wherever practicable or whether it is only one of a number of factors to be considered in judging the reasonableness of a given search. See, T. Taylor, TWO STUDIES IS COKSTITUTIONALINTERPRETATION , 38-46 (1969). See United States v. Martinez, 16 U.S.C.M.A. 40, 36 C.M.R. 196 (1966) where the court indicated a written authorization would spell out the facts upon which a search authorization was based and would also enumerate the article to be seized.