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Are military members protected from ‘unreasonable’ searches?

On Behalf of | Aug 22, 2022 | Military Law |

If you are under investigation by military police, you retain certain rights against illegal searches and seizures of property, just as civilians have under the Bill of Rights. However, those protections differ significantly depending on the circumstances and where you live.

In some cases, your privacy rights are severely diminished. Protections for military members over search and seizure are outlined under the Fourth Amendment to the Constitution and Military Rule of Evidence 311. These laws also help determine whether evidence obtained by investigators is admissible.

Do police need a warrant?

Even basic rights against searches are limited for service members, especially if you live or work at a military installation. Here are the most common places where searches can take place:

  • Vehicles: Anyone who enters a military base should assume that their car and person will be searched. If the gate guard suspects you’ve been drinking, they may order an additional search, but they are not required to have probable cause. You can say you do not consent, but it will likely continue, or you could be ordered to leave the base.
  • Living quarters: Those who live in barracks, dorms or other housing for deployed service members do not have the same rights as civilians. Commanders can generally order inspections for any reason at any time. However, inspections cannot be used deceptively to search your living quarters if you are under investigation for a crime.
  • Base work locations: Military members have little protection against searches of their offices, computers and electronic communications, such as emails. This can generally happen without your knowledge or presence or a search warrant.
  • Base rental housing: Greater protections exist for those who live in base rentals as commanders typically cannot order surprise inspections without a warrant. However, you may be subject to scheduled monthly or quarterly inspections since you live in government housing. Commanders also have the right to order “health and welfare” checks, which do not require a warrant.
  • Off-base housing: Service members who live off base have the same Fourth Amendment rights against unreasonable search and seizure as civilians, meaning officers must provide a search warrant without your consent to search the home. However, you may be ordered to report to your commander or military police for questioning without an arrest warrant if you are under investigation.

Exercise your right to counsel and against self-incrimination

Military law provides greater protection in some areas. Article 31 requires military law enforcement to inform military members of the right not to incriminate themselves. This goes beyond the civilian Miranda warning, which must be read only when a person is arrested. Service members need only be questioned.

You also have the right to remain silent and to acquire legal counsel if you are served with a warrant. If you are under investigation, it’s advisable not to answer any questions without an experienced military law attorney present. Law enforcement and commanders are prevented from using your silence against you.