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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
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