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The Use of Drug-Detector Dogs - 14135_98
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official. The  provisions  of  the  Military  Rules  of Evidence are geared to lessen the effect in this type of case, in that mere presence at the scene is not per se disqualifying;  but  again,  the  line  is  difficult  to  draw. In summary, the use of dogs for the purpose of ferreting out drugs or contraband that threaten military security  and  performance  is  reasonable  means  to provide probable cause when: l  the  dog  alerts  in  a  common  area,  such  as  a barracks  passageway,  or . the dog alerts on the airspace extending from an area where there is an expectation of privacy. INSPECTIONS AND INVENTORIES Although not within either category of searches (prior   authorization/without   prior   authorization), administrative inspections and inventories conducted by government agents may yield evidence admissible in trials  by  court-martial.  Mil.R.Evid.  313  codifies  the  law of military inspections and inventories. Traditional terms  that  were  formerly  used  to  describe  various inspections; for example, shakedown search or gate search, have been abandoned as being confusing. If carried out lawfully, inspections and inventories are not designed to be quests for evidence and are thus not searches in the strictest sense. It follows that items of evidence  found  during  these  inspections  are  admissible in   court-martial   proceedings. If  either  of  these administrative  activities  is  primarily  a  quest  for evidence  directed  at  certain  individuals  or  groups,  the inspection is actually a search and evidence seized will not  be  admissible. Inspections Mil.R.Evid.  313(b)  defines  inspection  as  an “examination...  conducted as an incident of command the primary purpose of which is to determine and to ensure the security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft,  or  vehicle.”   Thus, an inspection is conducted to make sure mission readiness is part of the inherent duties and responsibilities of those in the military chain of  command. Because inspections are intended to discover, correct, and deter conditions detrimental to military efficiency and safety, they are considered as necessary to the existence of any effective armed force and   inherent   in   the   very   concept   of   a   military organization. Mil.R.Evid.   313(b)   makes   it   clear   that   “an examination  made  for  the  primary  purpose  of  obtaining evidence for use in a trial by court-martial or in other disciplinary  proceedings  is  not  an  inspection  within  the meaning of this rule.”   An  otherwise  valid  inspection  is not rendered invalid solely because the inspector has as his or her secondary purpose that of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings. For  example,  assume  Captain  Deck  suspects Seaman Doe of possessing marijuana because of an anonymous tip received by telephone. Captain Deck cannot  proceed  to  Seaman  Doe’s  locker  and  inspect  it because what he is really doing is searching it—looking for  the  marijuana. How about an inspection of all lockers in Seaman Doe’s wing of the barracks? This will afford  Captain  Deck  an  opportunity  to  get  into  Seaman Doe’s locker on a pretext. Because it is a pretext for a search, it would be invalid; in fact, it is a search. And note that this is not a lawful probable cause search because  the  captain  has  no  underlying  facts  and circumstances from which to conclude that the informer is reliable or that his or her information is believable. Suppose, however, that Captain Deck, having no information  concerning  Seaman  Doe,  is  seeking  to remove contraband from his command, prevent removal of  government  property,  and  reduce  drug  trafficking. He establishes inspections at the gate. Those entering and leaving through the gate have their persons and vehicles inspected on a random basis. Captain Deck is not trying to get goods on Seaman Doe or any other particular  individual. Seaman Doe carries marijuana through the gate and is inspected. The inspection is a reasonable one; the trunk of the vehicle, under its seats, and  Seaman  Doe’s  pockets  are  checked.  Marijuana  is discovered in Seaman Doe’s trunk. The marijuana was discovered incident to the inspection. Seaman Doe was not singled out and inspected as a suspect. Here, the purpose was not to get Seaman Doe, but merely to deter the  flow  of  drugs  or  the  contraband.  The  evidence would be admissible. An inspection maybe made of the whole or any part of a unit, organization, installation, vessel, aircraft, or vehicle. Inspections are quantitative examinations because they do not single out specific individuals or very small groups of individuals. There is, however, no legal  requirement  that  the  entirety  of  a  unit  or organization be inspected. An inspection should be totally exhaustive (for example, every individual of the chosen component is inspected) or it should be done on a random basis, by inspecting individuals according to 4-21

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