made in a reasonable fashion by a person with
appropriate medical qualifications.
For purposes of searchTo 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 fluidsThe 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
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 purposesThe
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 dogs 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
cars 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
dogs 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 dogs alert and
surrounding circumstances and the dogs 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
dogs alert in a controlled situation. The second method
is for the CO to review the record of the particular dogs
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