Illinois Administrative Code
Title 95 - VETERANS AND MILITARY AFFAIRS
Part 400 - ILLINOIS MANUAL FOR COURT-MARTIAL AND NONJUDICIAL PUNISHMENT
Subpart F - THE ILLINOIS MILITARY RULES OF EVIDENCE
Section 400.650 - Searches
Universal Citation: 95 IL Admin Code ยง 400.650
Current through Register Vol. 48, No. 12, March 22, 2024
a) Searches Not Requiring Probable Cause
1) General Rule.
Evidence obtained from reasonable searches not requiring probable cause
conducted pursuant to this subsection (a) is admissible at trial when relevant
and not otherwise in admissible under this Section or the U.S. Constitution as
applicable to the armed forces.
2)
Border Searches. Border searches for customs or immigration purposes may be
conducted when authorized by Act of Congress.
3) Searches Upon Entry or Exit from Illinois
National Guard Installations, Aircraft and Vessels Abroad. In addition to the
authority to conduct inspections under Section 400.645, the Adjutant General or
any commander to whom he or she delegates authority, may authorize appropriate
personnel to search persons or the property of those persons upon entry to or
exit from the installation, enclave, aircraft or vessel to ensure the security,
military fitness, or good order and discipline of the command. These searches
may not be conducted at a time or in a manner contrary to an express provision
of a treaty or agreement to which the United States is a party. Failure to
comply with a treaty or agreement, however, does not render a search unlawful
within the meaning of Section 400.645. A search made for the primary purpose of
obtaining evidence for use in a trial by court-martial or other disciplinary
proceedings is not authorized by this Section.
4) Searches of Government Property.
Government property may be searched under this Section unless the person to
whom the property is issued or assigned has a reasonable expectation of privacy
in the government property at the time of the search. Under normal
circumstances, a person does not have a reasonable expectation of privacy in
government property that is not issued for personal use. Wall or floor lockers
in living quarters issued for the purpose of storing personal possessions
normally are issued for personal use, but the determination as to whether a
person has a reasonable expectation of privacy in government property issued
for personal use depends on the facts and circumstances at the time of the
search.
5) Consent Searches
A) General Rule. Searches may be conducted of
any person or property with lawful consent.
B) Who May Consent. A person may consent to a
search of his or her person or property, or both, unless control over that
property has been given to another. A person may grant consent to search
property when the person exercises control over that property.
C) Scope of Consent. Consent may be limited
in any way by the person granting consent, including limitations in terms of
time, place or property and may be withdrawn at any time.
D) Voluntariness. To be valid, consent must
be given voluntarily. Voluntariness is a question to be determined from all the
circumstances. Although a person's knowledge of the right to refuse to give
consent is a factor to be considered in determining voluntariness, the
prosecution is not required to demonstrate that knowledge as a prerequisite to
establishing a voluntary consent. Mere submission to the color of authority of
personnel performing law enforcement duties or acquiescence in an announced or
indicated purpose to search is not a voluntary consent.
E) Burden of Proof. Consent must be shown by
clear and convincing evidence. The fact that a person was in custody while
granting consent is a factor to be considered in determining the voluntariness
of consent, but it does not affect the burden of proof.
6) Searches Incident to a Lawful Stop
A) Stops. A person authorized to apprehend
under Code Section 7 and others performing law enforcement duties may stop
another person temporarily when the person making the stop has information or
observes unusual conduct that leads him or her reasonably to conclude in light
of his or her experience that criminal activity may be afoot. The purpose of
the stop must be investigatory in nature.
B) Frisks. When a lawful stop is performed,
the person stopped may be frisked for weapons when that person is reasonably
believed to be armed and presently dangerous. Contraband or evidence located in
the process of a lawful frisk may be seized.
C) Motor Vehicles. When a person lawfully
stopped is the driver or a passenger in a motor vehicle, the passenger
compartment of the vehicle may be searched for weapons if the official who made
the stop has a reasonable belief that the person stopped is dangerous and that
the person stopped may gain immediate control of a weapon.
7) Searches Incident to a Lawful
Apprehension. A person who has been lawfully apprehended may be searched.
A) Search for Weapons and Destructible
Evidence. A search may be conducted for weapons or destructible evidence, in
the area within the immediate control of a person who has been apprehended. The
area within the person's "immediate control" is the area the individual
searching could reasonably believe that the person apprehended could reach with
a sudden movement to obtain the property; provided, that the passenger
compartment of an automobile, and containers within the passenger compartment,
may be searched as a contemporaneous incident of the apprehension of an
occupant of the automobile, regardless whether the person apprehended has been
removed from the vehicle.
B)
Examination for Other Persons
i) When an
apprehension takes place at a location in which other persons might be present
who might endanger those conducting the apprehension and others in the area of
the apprehension, a reasonable examination may be made of the general area in
which the other persons might be located. A reasonable examination under this
subsection (a)(7)(B) is permitted if the apprehending officials have a
reasonable suspicion based on specific and articulable facts that the area to
be examined harbors an individual posing a danger to those in the area of the
apprehension.
ii) Apprehending
officials may, incident to apprehension, as a precautionary matter and without
probable cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of apprehension from which an attack could be
immediately launched.
8) Searches Within Jails, Confinement
Facilities, or Similar Facilities. Searches within jails, confinement
facilities, or similar facilities may be authorized by persons with authority
over the institution.
9) Emergency
Searches to Save Life or for Related Purposes. In emergency circumstances to
save life or for a related purpose, a search may be conducted of persons or
property in a good faith effort to render immediate medical aid, to obtain
information that will assist in the rendering of medical aid, or to prevent
immediate or ongoing personal injury.
10) Searches of Open Fields or Woodlands. A
search of open fields or woodlands is not an unlawful search within the meaning
of Section 400.635.
11) Other
Searches. A search of a type not otherwise included in this Section and not
requiring probable cause under subsection (b) may be conducted when permissible
under the U.S. Constitution as applied to members of the armed forces. (Il.
Mil. R. Evid. 314)
b) Probable Cause Searches
1) General Rule.
Evidence obtained from searches requiring probable cause conducted in
accordance with this subsection (b) is admissible at trial when relevant and
not otherwise inadmissible under this Section.
2) Definitions. As used in this subsection
(b):
A) "Authorization to Search" means an
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 that property, evidence or person. It may contain an order
directing subordinate personnel to conduct a search in a specified
manner.
B) "Search Warrant" means
an express permission to search and seize issued by competent civilian
authority.
3) Scope of
Authorization. A search authorization may be issued under this subsection (b)
for a search of:
A) Persons. The person of
anyone subject to military law or the law of war wherever found;
B) Military Property. Military property of
the United States or the Illinois National Guard, or nonappropriated fund
activities of U.S. armed forces, wherever located;
C) Persons and Property Within Military
Control. Persons or property situated on or in a military installation,
encampment, vessel, aircraft, vehicle, or any other location under military
control, wherever located.
4) Power to Authorize. Authorization to
search pursuant to this subsection (b) may be granted by an impartial
individual in the following categories:
A)
Commander. A commander or other person serving in a position designated by the
Adjutant General 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; or
B) Military Judge. A
military judge or magistrate if authorized under regulations prescribed by the
Adjutant General. An otherwise impartial authorizing official does not lose the
character merely because he or she is present at the 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 these previous authorization is similar in intent or function
to a pretrial authorization made pursuant to the laws of the jurisdiction where
the search is to be conducted.
5) Power to Search. Any commissioned officer,
warrant officer, petty officer, noncommissioned officer, and, when in the
execution of guard or police duties, any criminal investigator, member of the
Air Force security police, 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 subsection (b) or a search would
otherwise be proper under subsection (b)(7).
6) Basis for Search Authorizations
A) Probable Cause Requirement. A search
authorization issued under this subsection (b) must be based upon probable
cause.
B) 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
subsection (b)(6)(B) shall be based upon any or all of the following:
i) Written statements communicated to the
authorizing officer;
ii) Oral
statements communicated to the authorizing official in person, via telephone or
by other appropriate means of communication; or
iii) Such information as may be known by the
authorizing official that would not preclude the officer from acting in an
impartial fashion.
7) Exigencies. A search warrant or search
authorization is not required under this subsection (b) for a search based on
probable cause when:
A) Insufficient Time.
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;
B) Lack of Communications. There is a
reasonable military operational necessity that is reasonably believed to
prohibit or prevent communication with a person empowered to grant a search
warrant or authorization and 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;
C) Search of Operable
Vehicle. An operable vehicle is to be searched, except in the circumstances in
which a search warrant or authorization is required by the U.S. Constitution,
the Code or this Manual; or
D) Not
Required by the Constitution. A search warrant or authorization is not
otherwise required by the U.S. Constitution as applied to members of the armed
forces. For purpose of this subsection (b)(7), a vehicle is "operable" unless a
reasonable person would have known at the time of search that the vehicle was
not functional for purposes of transportation.
8) Execution
A) Notice. If the person whose property is to
be searched is present during a search conducted pursuant to a search
authorization granted under this subsection (b), the person conducting the
search should, when possible, notify the property holder of the act of
authorization and the general substance of the authorization. The notice may be
made prior to or contemporaneously with the search. Failure to provide notice
does not make a search unlawful within the meaning of Section
400.635.
B) Inventory. Under
regulations prescribed by the appropriate authority, and with such exceptions
as may be authorized by the U.S. Secretary of Defense, an inventory of the
property seized shall be made at the time of a seizure under this subsection
(b) or as soon as practicable thereafter. At an appropriate time, a copy of the
inventory shall be given to a person from whose possession or premises the
property was taken. Failure to make an inventory, furnish a copy of the
inventory, or otherwise comply with this subsection (b)(8)(B) does not render a
search or seizure unlawful within the meaning of Section 400.635.
C) Foreign Searches. Execution of a search
authorization outside the United States and within the jurisdiction of a
foreign nation should be in conformity with existing agreements between the
United States and the foreign nation. Noncompliance with such an agreement does
not make an otherwise lawful search unlawful.
D) 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 U.S. Constitution or an applicable
Act of Congress. (Il. Mil. R. Evid. 315)
Disclaimer: These regulations may not be the most recent version. Illinois may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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