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Body Views and Intrusions
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Inspection and Inventories
made  in  a  reasonable  fashion  by  a  person  with appropriate  medical  qualifications. For purposes of search—To search for weapons, contraband, or evidence of a crime if authorized by a search warrant or search authorization and conducted by a  person  with  appropriate  medical  qualifications. Notwithstanding   this   rule,   a   search   under Mil.R.Evid.  314(h)  may  be  made  without  a  search warrant or authorization if such search is based on a reasonable  suspicion  that  the  individual  is  concealing weapons, contraband, or evidence of a crime. Extraction  of  bodily  fluids—The  nonconsensual extraction   of   body   fluids;   for   example,   blood,   is permissible under the two following circumstances: l Pursuant to a lawful search authorization . Where the circumstances show a clear indication that evidence of a crime will be found, and that there is reason to believe that the delay required to seek a search authorization could result in the destruction of the evidence Involuntary  extraction  of  body  fluids,  whether conducted  pursuant  to  either  situations  mentioned previously, must be done in a reasonable fashion by a person  with  the  appropriate  medical  qualifications.  (It is likely that physical extraction of a urine sample would be considered a violation of constitutional due process, even  if  based  on  an  otherwise  lawful  search authorization.) Note that an order to provide a urine sample  through  normal  elimination,  as  in  the  typical urinalysis inspection, is not an extraction and need not be conducted by medical personnel. Intrusions   for   valid   medical   purposes—The military may take whatever actions are necessary to preserve the health of a service member. Thus, evidence or   contraband   obtained   from   an   examination   or intrusion conducted for a valid medical purpose maybe seized and will be admissible at a court-martial. THE USE OF DRUG-DETECTOR DOGS Military  working  dogs  can  be  used  as  drug-detector dogs. As such, they can be used to assist in the obtaining of evidence for use in courts-martial. Some of the ways they can be used include their use in gate searches or other inspections under Mil.R.Evid. 313 and to establish the probable cause necessary for a later search. One  situation  where  the  use  of  the  dog  was considered  permissible  was  during  a  gate  search conducted  on  an  overseas  installation.  The  dog’s  alert could  be  used  to  establish  probable  cause  to  apprehend the  accused.  All  evidence  obtained  was  held  to  be admissible. Recently, the Court of Military Appeals held that the use of detector dogs at gate searches in the United States was also reasonable. In  another  case,  the  Court  of  Military  Appeals permitted a detector dog to be brought to an automobile believed to contain marijuana. The dog alerted on the car’s  rear  wheels  and  exterior  and  that  prompted  the police to detain the accused. The proper commander was   then   notified   of   this   alert   and   the   other circumstances surrounding the case. The search of the vehicle   was   then   conducted   pursuant   to   the authorization  of  the  commander. The court held that the use of the marijuana dog in an area surrounding the car was lawful. The mere act of monitoring airspace surrounding the vehicle did not involve an intrusion into an area of privacy. Thus, the dog’s alert was not a search, but a fact that could be relayed to the proper commander for a determination of probable cause. The Supreme Court has also held that using a dog in a common area to sniff a closed suitcase is not a search at all. Close  attention  must  be  given  to  establishing  the reliability of the informers in this situation; for example, the dog and doghandler. The drug-detector dog is simply an informant, albeit with a longer nose and a somewhat more scruffy appearance. As in the usual informant situation, there must be a showing of  both factual  basis;  for  example,  the  dog’s  alert  and surrounding circumstances and the dog’s reliability. This reliability may be determined by the CO through either of two commonly used methods. The first method is for the CO to observe the accuracy of a particular dog’s alert in a controlled situation. The second method is for the CO to review the record of the particular dog’s previous performance in actual cases. Although either of  these  methods  may  be  sufficient  by  itself  for  a determination that a dog is reliable, both should be used whenever  practical.  For  more  information  on  the  use  of military working dogs as drug detectors and establishing their reliability as such, see  Military  Working  Dog Manual, OPNAVINST  5585.2A. A few words of caution about the use of drug dogs. One court has stated that a military commander who participates  in  an  inspection  involving  the  use  of detector  dogs  in  the  command  area  cannot  later authorize a search based upon later alerts by the same dogs during that use. This illustrates the point that any person swept into the evidence-gathering process may find  it  impossible  later  to  be  considered  an  impartial 4-20

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