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some rule of chance.
Such procedures will be an
effective means to avoid challenges based on grounds
that the inspection was a subterfuge for a search. Unless
authority to so do has been withheld by competent
superior authority, any individual placed in a command
or appropriate supervisory position may inspect the
personnel and property within his or her control.
An inspection also includes an examination to
locate and confiscate unlawful weaponss and other
contraband.
Contraband is defined as material the
possession of which is by its very nature unlawful.
Material may be declared to be unlawful by appropriate
statute, regulation, or order.
For example, liquor is
prohibited aboard ship and would be contraband if found
in Seaman Doe’s seabag aboard ship, although it might
not be contraband if found in Seaman Jones’ BEQ room.
Mil.R.Evid. 313(b) indicates that certain classes of
contraband inspections are especially likely to be
subterfuge searches and thus not inspections at all. If
the contraband inspection (1) occurs immediately after
a report of some specific offense in the unit and was not
previously scheduled; (2) singles out specific
individuals for inspection; or (3) inspects some people
substantially more thoroughly than others, then the
government must prove that the inspection was not
actually a subterfuge search.
As a practical matter, the rule expresses a clear
preference for previously scheduled contraband
inspections.
Such scheduling helps make sure the
inspection is a routine command function and not an
excuse to search specific persons or places for evidence
of a crime.
The inspection should be scheduled
sufficiently far enough in advance to eliminate any
reasonable chance that the inspection is being used as a
subterfuge. Such scheduling may be made as a matter
of date or event. In other words, inspections may be
scheduled to take place on any specific date, or on the
occurrence of a specific event beyond the usual control
of the commander.
The previously scheduled
inspection, however, need not be preannounced need.
Mil.R.Evid. 313(b) permits a person acting as an
inspector to use any reasonable natural or technological
aid in conducting an inspection.
The marijuana
detection dog, for instance, is a natural aid that may be
used to assist an inspector in more accurately
discovering marijuana during an inspection of a unit for
marijuana. If the dog should alert on an area that is not
within the scope of the inspection, however, that area
may not be searched without a prior authorization. Also,
where the CO is conducting the inspection when the dog
alerts, he or she should not authorize the search himself
or herself, but should seek authorization from some
other competent authority.
This is because the
commander’s participation in the inspection may render
him or her disqualified to authorized searches.
Inventories
Mil.R.Evid. 313(c) codifies case law by recognizing
that evidence seized during a bona fide inventory is
admissible. The rationale behind this exception to the
usual probable cause requirement is that such an
inventory is not prosecutorial in nature and is a
reasonable intrusion.
Commands may inventory the
personal effects of members who are on an unauthorized
absence, placed in pretrial confinement, or hospitalized.
Contraband or evidence incidentally found during such
a legitimate inventory will be admissible in a later
criminal proceeding. However, an inventory may not
be used as a subterfuge for a search.
DRUG ABUSE DETECTION
Not in My Navy and Zero Tolerance are the Navy’s
call to arms in the war on drugs. These statements
reflect our commitment to the elimination of illicit drugs
and drug abusers from the Naval Establishment and the
continued emphasis placed on deterrence, leadership,
and expeditious action. While the options available to
commanders in combating drug abuse are many and
varied, this section deals only with the urinalysis
program and its limitations.
GENERAL GUIDANCE
The urinalysis program of the Navy was established
to provide a means for the detection of drug abuse and
to serve as a deterrent against drug abuse. OPNAVINST
5350.4B contains guidelines on alcohol and drug abuse
prevention and control. Additional guidance is found in
the Military Rules of Evidence. These rules and
directives contain detailed guidelines for the collection,
analysis, and use of urine samples.
The positive results of a urinalysis test may be used
for a number of distinct purposes, depending on how the
original sample was obtained. Therefore, it is important
to be able to recognize when, and under what
circumstances, a command may conduct a proper
urinalysis.
TYPES OF TESTS
OPNAVINST 5350.4B directs that commanders,
COs, and OICs should conduct an aggressive urinalysis
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