Posted on Nov 15, 2019
Can CQ use Command Authority to search a Soldier's barracks room?
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Currently have to write an essay on "Legal and the NCO Leader" in BLC. I've been reading the MCM and searching the web for an answer to this question and can't find anything clear and direct. Does the CQ NCO have the right under Command Authority or Scope of Authorization form a Soldier's commander to inspect an SM's room under reasonable suspicion? Does the CQ have to notify the MP's?
Duty
Edited 5 y ago
Posted 5 y ago
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No.
From the 2019 Commander's Legal Guide pg 49 onward:
"2. Search Warrants and Authorizations
a. Commander’s Authorization
A commander may authorize searches of his or her Soldiers and equipment, or areas he or she controls, when there is probable cause to believe that items connected with criminal activity are located in the place or on the person to be searched. When time permits, the commander should consult a legal adviser rst. A commander may not delegate the authority to authorize searches to others in the unit. The power to authorize a search, however, may devolve to an act- ing commander if the commander is absent. The authority of an acting commander to authorize searches should be documented in writing by the absent commander."
https://www.jagcnet.army.mil/Sites/jagc.nsf/0/EE26CE7A9678A67A85257E [login to see] /$File/CommandersLegalHandbook.pdf
The commander himself must consult legal counsel if feasible before conducting such a search. Probable cause is also very specific. Certainly not delegated to a CQ.
From the 2019 Commander's Legal Guide pg 49 onward:
"2. Search Warrants and Authorizations
a. Commander’s Authorization
A commander may authorize searches of his or her Soldiers and equipment, or areas he or she controls, when there is probable cause to believe that items connected with criminal activity are located in the place or on the person to be searched. When time permits, the commander should consult a legal adviser rst. A commander may not delegate the authority to authorize searches to others in the unit. The power to authorize a search, however, may devolve to an act- ing commander if the commander is absent. The authority of an acting commander to authorize searches should be documented in writing by the absent commander."
https://www.jagcnet.army.mil/Sites/jagc.nsf/0/EE26CE7A9678A67A85257E [login to see] /$File/CommandersLegalHandbook.pdf
The commander himself must consult legal counsel if feasible before conducting such a search. Probable cause is also very specific. Certainly not delegated to a CQ.
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LTC Jason Mackay
SGT (Join to see) you also use the word inspect. Is it an inspection or a search. It is within the chain of command's authority to direct inspections for cleanliness and health and have NCOs conduct such inspections. An inspection is NOT a search, and you ca not cheat your way into a search by calling it an inspection.
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A more accurate question is does the commander have this authority? The commander can grant all kinds of authority but not the authority they don't possess.
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Simple answer is no, they do not have that authority. Any time we needed a room searched, we had to get a search authorization from the Commander if the SM did not give permission. If he/she was not available, we would go to the Judge Magistrate. They can't search just because they want to they need a reason for it (probable cause, etc.), which is why Commanders often opt on just doing a Company Health and Welfare Inspection. On the drug team, we would get involved in the inspection and run dogs through.
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