Was it an illegal search? Did I do right?

[Floyd_jones]

alright, so of course everything happens at shift change! We get called to our search gate for a possible DUI, the gate guard who called it, is a gung ho guard, who enjoys finding seeds and stems. I go over, pull him out give him his FST's (which he fails) then read him his rights, and detain him. The gate guard observed a container in his back seat, that smells of alcohol, we confiscate it. After making him blow (to which he passes) we bring him back to our station, to find out that after we left the gate guard did a "safety inspection" or something similar, and finds a joint and lets everyone know. I ask the subject then to be honest with me and tell me if he has anything in his vehicle, in to which he admits. Now, I get up to the desk and everyone is angry that the gate guard made the search (including investigations) and is illegal cause they had no PC for it (therefore his statement is null and void also right?). Anyways, I was just gonna have him destroy the blunt in front of me before releasing him, but now after notifying the higher command, wants to run with him possessing the blunt, since legal told us "since he admitted to it, just get consent find it and cite him." This of course me or the flight sergeant disagreed to do. We then notify the commander who tells us "cite for the open container originally, and then get consent and get the MJ." essentially the same thing legal told us.

My question I'm still learning the inns and outs of search and seizures, but was what the gate guard did legal? (the blunt was in the ashtray and was pulled out fyi)

Should we of just went with what JAG told us and just get a search consent after the fact that they already searched the vehicle and just say we had it?

I think for now on anyways, i'm just gonna go with the search consent upon initial contact. makes things much easier!

sorry if this doesnt make sense it was a 16 hour day :/ I'm merely just trying to learn and better myself for the next time this comes down.

wish I could put this in the general LE board probably would get more answers there!

[orlandofed5-0]

The gate guard had PC (and legally has the authority of the CO) and contacted you. You made an apprehension in violation of Art. 111. The search is leagal since the subject was apprehended and the guard made a search of the vehicle since it was coming through the gate. The member should read the big signs on the gate that state "All are subject to search" and when you sign for your stickers stating you are consenting to the search of the vehicle.

Your SFI probably dont want to handle the UCMJ violation paperwork.

[SBean06]

Our post is marked the same way,and that would make the search legal but, one thing to keep in mind you cannot use a bias to search i.e. it must be in accordance with your policies like (every vehicle, or a radom inspection like every other vehicle, or if they are a visitor), I have had to correct gate guards who randomly during the normal hours when our post searches a number of the day like 1 out of every 10 to not go, "Ohh he looks like a good car to search and then search that one" because that can get thrown out and our prosecution if they find that out will throw the case out.


I would next time this happends though tell the guard to go back to do his job, pull the guy out and either do as you did with the vehicle secured or right there ask for consent to search from him, or have a dog come by. Then you are the one that will do that case and not have to bring the guard into the search and have him contaminate your evidence.

[LandGuppy]

Orlando has the right of it. There is a bubble around the gate where the 4th amendment ceases to exist. The gate guards can search any part of the vehicle upon entrance or exit of the installation. The argument could be made that once he was apprehended the ability to search the vehicle no longer existed, but the fourth, fifth, and ninth circuit courts of appeals have all ruled that you imply consent to search by entering a military installation.

The problem usually occurs when the charges have to be referred to a civilian organization, and they don't want to deal with fighting over the search.

[Ro-Bear]

From what I'm reading, I had a similar situation happen.
When I first make contact with anyone I ask them if I can take a look in their vehicle. That gets me the verbal consent and we can do the 1364 when we get back to the Station since you have to do it to get his breath anyways. I've done it this way for YEARS and asked Legal about it and they stated it's GTG. When doing your SFMIS, you need to articulate that you were granted verbal consent.
Either way, you can look in anyone's vehicle anytime they are on base. I tend to like to do my own searches if it's just me and a guard. Most guards are fully capable, but I would prefer to do it myself.
The one thing I don't understand though...you were going to let him destroy the blunt in front of you and release him? I would at least have him destroy in in front of his shirt or something. This is after the notifications and searching his room (if he lives in the dorms).

[Floyd_jones]

guy was a civvie, just coming on to do work. should of clarified that. After a little more looking into it today, the reason why everyone was up in arms was because the flight chief directed the gate guard to hold off on the search and not to touch the vehicle, until we can get a 1364 done. What ended up happening was that after he was held for 8 hours, he refused to give consent when the next flight tried and got away with a mere 1805 for a open container. Next time this happens right after the rights will come the 1364! (our squadron isn't big on verbals, and they don't believe in it. verbal rights advisement, verbal consents, the works.) thanks for the comments!

[orlandofed5-0]

Since he was a civilian, have the base legal office (am assuming contractor) draft a barment letter.

[Ro-Bear]

guy was a civvie, just coming on to do work.

Gotcha. We had the same thing happen a couple of times. When the SO was called to deal with him, he got a ticket and sent on their way as the Deputy was crushing the joints.
Anything happen to the Guard?

[westside popo]

Where in the vehicle was the "joint" found?
What does a routine "safety inspection" consist of at your gates?
The issue, as I see it, is the chain of events, the scope of the "safety inspection" and your ability to articulate it. I also see a possible issue in the use of the term safety as in "safety inspection".

The way, I see it, your reason for stopping him and giving the driver a field sobriety test are good. You have an aparent experienced and observant gaurd who recognized the signs of impairement in the driver. The gaurd smells the odor of an alcoholic beverage and observes what he reasonbaly believes was an open container of an alcoholic beverage. You conducted a FST which the driver fails. He is "detained" for same and read his rights. What is not clear is if you administered a road side field breath test or a certified breath test at your HQ. Which ever one you performed indicated no presence of alcohol on the subject's breath (or BAC .000). Based on your post, at about this time you learned that the gaurd conducted a "safty inspection" and found the marijuana.
You have already read the subject his rights, he voluntarily waived those rights and is willing to talk to you. If it was me I would reasonbly believe, based on the FST and the BAC results that he was under the influence of an intoxicating substance and his ability to safely operate a motor vehicle was impaired. Therefore I would ask him about his recent drug use and the source of his impairement. I would also ask for consent to search his vehicle. However you asked the subject about the marijuana, which he admitted to possessing, after learning it was found in the car, by the gaurd.

So where was the suspected marijuana found in the vehicle? Does a "safety inspection" normaly include searching for illegal contraband or explosives, weapons and firearms etc. If the "safety inspection" only covered explosives and weapons etc. was the marijuana located in an area of the vehicle where a reasonable officer or gaurd would expect to find explosives, firearms etc?

The following statement is totaly and completely false, "There is a bubble around the gate where the 4th amendment ceases to exist." At no time and under no circumstances, in the CONUS, does the US Constitution "ceases" to exist. However the rights under the constitution can be reasonably restricted in some places such as in prisons, jails, court rooms and yes military installations etc. Yes inmates still have rights but the security of the prison is superior to those rights. The same applies at the "gate" where the security of the military installation is very important. However if a person does not want their vehicle searched they have the right (absent any other PC to the contrary) to turn around and leave.
BTW I am a former Army MP.

[DACP]

There are a few holes in the case, as there normally are. I do not understand the guard searching the vehicle after you left the gate, the issue of safety inspection could be argued, I would call it an inventory inspection, but then again we tow for such offense so that is mandatory, a cursory look at the ash tray is not unreasonable as people place change in there. I think the guard should have stopped once finding the stuff, left it alone and called the desk. But I think we might do things differently over here at Ft. Mayberry USA , not that we are right, it is just our policies are different.

[Lonestarcop]

Also, is this an army installation? if so ar 190-1 gives implied consent if your on post

[DACP]

Also, is this an army installation? if so ar 190-1 gives implied consent if your on post

His profile states patric AFB, so it should be AFI 31-218(I) the same as our 190-5.

[orlandofed5-0]

Like I said.. Just send him a barment letter and be done with it. Also was this the main gate or the housing area?

[Floyd_jones]

Where in the vehicle was the "joint" found?
What does a routine "safety inspection" consist of at your gates?
The issue, as I see it, is the chain of events, the scope of the "safety inspection" and your ability to articulate it. I also see a possible use of the term safety as in "safety inspection".

The issue came to hand was when the gate guard was specifically instructed DO NOT search the vehicle wait until we have written consent. Also at the time I was instructed that we did not have PC to look for the MJ just the Alcohol. (not sure how much that holds up, but then again that is why I am bringing it here). From what I understand of the events that took place, the gate guard apparently went to secure the vehicle and pulled the ash tray out wouldn't that be considered search incident to apprehension still? Another question I brought up was if we could get the open container in the back seat of the vehicle, why couldn't we look in the ash tray? (it was within reaching distance.) I personally blame lack of experience and assuming on everyone involved (including me and the desk) as to why we never charged for the MJ.

The way, I see it, your reason for stopping him and giving the driver a field sobriety test are good. You have an aparent experienced and observant gaurd who recognized the signs of impairement in the driver. The gaurd smells the odor of an alcoholic beverage and observes what he reasonbaly believes was an open container of an alcoholic beverage. You conducted a FST which the driver fails. He is "detained" for same and read his rights. What is not clear is if you administered a road side field breath test or a certified breath test at your HQ. Which ever one you performed indicated no presence of alcohol on the subject's breath (or BAC .000). Based on your post, at about this time you learned that the gaurd conducted a "safty inspection" and found the marijuana.

He failed his FST's gave him the implied consent and transported him to a local department. Where he passed exceptionally well (.011,.012). Not enough for DWI or DUI. Now what is unclear to me is to why we still held him for ten hours (from 4 to 2 in the morning). even though he wasn't impaired (the was driving fine, he was caught by the odor) and command (the CC) stated that were not to push the drugs at this time, we were still to hold him (and then after the release get consent and get the MJ). so did we illegally hold him?

You have already read the subject his rights, he voluntarily waived those rights and is willing to talk to you. If it was me I would reasonbly believe, based on the FST and the BAC results that he was under the influence of an intoxicating substance and his ability to safely operate a motor vehicle was impaired. Therefore I would ask him about his recent drug use and the source of his impairement. I would also ask for consent to search his vehicle. However you asked the subject about the marijuana, which he admitted to possessing, after learning it was found in the car, by the gaurd.

So where was the suspected marijuana found in the vehicle? Does a "safety inspection" normaly include searching for illegal contraband or explosives, weapons and firearms etc. If the "safety inspection" only covered explosives and weapons etc. was the marijuana located in an area of the vehicle where a reasonable officer or gaurd would expect to find explosives, firearms etc?

The following statement is totaly and completely false, "There is a bubble around the gate where the 4th amendment ceases to exist." At no time and under no circumstances, in the CONUS, does the US Constitution "ceases" to exist. However the rights under the constitution can be reasonably restricted in some places such as in prisons, jails, court rooms and yes military installations etc. Yes inmates still have rights but the security of the prison is superior to those rights. The same applies at the "gate" where the security of the military installation is very important. However if a person does not want their vehicle searched they have the right (absent any other PC to the contrary) to turn around and leave.
BTW I am a fomer Army MP.

Like I said.. Just send him a barment letter and be done with it. Also was this the main gate or the housing area?
This was at the Commercial Truck inspection gate

There are a few holes in the case, as there normally are. I do not understand the guard searching the vehicle after you left the gate, the issue of safety inspection could be argued, I would call it an inventory inspection, but then again we tow for such offense so that is mandatory, a cursory look at the ash tray is not unreasonable as people place change in there. I think the guard should have stopped once finding the stuff, left it alone and called the desk. But I think we might do things differently over here at Ft. Mayberry USA , not that we are right, it is just our policies are different.
The gate guard was instructed not to touch it at all and wait until we could get consent

I'm just trying to figure this out, I appreciate all the guidance I'm getting on this and have a better understanding on how I'll handle the situation next time!

[smk99]

If the "inspection" was from outside of the vehicle, conducted by an authorized agent and observed contraband that was in plain view, then it would be legal. If the agent opened the vehicle and poked about the inside then observed the contraband then the search would be illegal.

Your premises for this stop was suspected DUI. You conducted FST, suspect presented positive clues. You placed the suspect under arrest before completing a search of the vehicle. Here is where Grant vs Arizona will come to play. You can no longer claim search incident to arrest on the contents of the vehicle once you place him in custody. You can only claim an inventory of the contents subject to impoundment.

A claim that you can conduct "safety inspections" on any vehicle that enters the post will not hold up using the NSA of 1947 (this is what is posted on the signs at the gates.) The NSA does not allow a quest for evidence once a crime has been established. NSA inspections must not violate the 4th amendment, that is why they have to be pre-established with all regulations followed. Unless you conduct this safety inspection on all vehicles that enter and exit the post, it would be a violation of the suspects rights to do so after you have established him as having violated the law. Your training and legal systems should make that very clear!

Additionally, you should have looked in to prosecuting the suspect for operation under a controlled substance. A blood draw should have been completed, and if positive charges proffered.