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Inspection and Inventories
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Search and Seizure
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 4-22

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