Q. My roommate found my stash of pot in our room and told our commander about it. Does that count as an unlawful search?

A. Under Military Rule of Evidence 311, evidence obtained from unlawful searches and seizures made by a person "acting in a governmental capacity" cannot be used against a service member. When someone, such as a roommate, finds evidence of illegal conduct, the key question is whether he or she was acting in a government or private capacity. "The Fourth Amendment and Mil.R.Evid. 311 are not violated when a military member acts in a purely private capacity," the Court of Appeals for the Armed Forces said in U.S. v. Garland T. Sullivan III (1995).

So ... if someone acting in a private capacity discovers illegal drugs, he or she can tip off the government. It doesn't matter whether such a private invasion was "accidental or deliberate" or "reasonable or unreasonable" — it does "not violate the Fourth Amendment because of ... [its] private character," the Court of Military Appeals said in U.S. v. William E. Portt Jr. (1986).

That said, however, without obtaining a warrant or search authorization, the government is limited in what it can do with this information from the private actor. "Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-non-private information," the court also noted in Portt.

In that case, the court found the appellant's Fourth Amendment rights were not violated when law enforcement discovered marijuana in an unlocked locker belonging to him after another service member had opened the locker out of curiosity and reported the contraband. The court found that the curious service member was acting as a private individual when he opened the locker and thus law enforcement's "subsequent opening of the locker was simply a continuation of that entry."

It's important to keep in mind that the court found the appellant in Portt lacked a reasonable expectation of privacy in the locker because it was unlocked and he had not visited it in six months. Had it been locked, such a reasonable expectation of privacy may have existed — and the appellant may have been able to successfully invoke the Fourth Amendment.

In U.S. v. Joshua S. Daniels (2004), the Court of Appeals for the Armed Forces found such a reasonable expectation of privacy existed when the appellant's roommate seized a vial of cocaine from the appellant's nightstand. The court found the roommate "did not have adequate control of the nightstand to exercise independent authority to consent."

The court also found the roommate had acted in a government capacity because a chief electronics technician directed the roommate to seize the vial after being told about it. Consequently, the court set aside the findings and sentence.

Service members who are facing an Article 112a charge for wrongful possession of a controlled substance, and believe they are the victim of an unreasonable search and seizure, should immediately consult with an experienced military law attorney. Depending on the circumstances, an attorney can show the service member had a reasonable expectation of privacy or the search was conducted by someone acting in a government capacity and without authorization.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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