Health and Welfare inspections

[stitchman21]

I have a soldier currently under an adultery investigation due to a female being found in his room when a health and welfare inspection was being conducted. it was conducted at 0400 one morning 2 hours before first formation. no one was notified that is was to take place, the 1SG and CDR just started going through rooms . when he answered his door the 1SG said what they were there for and pushed there way through into his barracks room. my question is simply this, are there any rules governing health and welfare inspections and if so what are they and where can they be found. I searched the manual for courts martial quite extensively and havent found very much at all to go on. Or do Commanders simply have 'free reign' under the banner of health and welfare and can conduct them whenever, wherever, with no notice whatsoever. Any help in this would be great.

Thanks
Tim

[chrisdizz22]

he didnt catch you in the act, and if you both deny it then it cant be adultry

[chrisdizz22]

he didnt catch you in the act, and if you both deny it then it cant be adultry

[badapple40]

MWH inspections are widespread. The only basis to challenge them is that they were targeted at specific individuals. However, since he went "door to door," the search is valid and any contraband/criminal activity observed is likely to be admitted.

You may have a defense to this based on the standards set forth by CAAF in U.S. v. Marcum. Are you married? If not, I take it she is? Who is she married to?

[CeLaw]

Bad Apple, I disagree. An inspection is not allowed to be a cover for a search without a warrant. And commanders do need a warrant to do a search. Commanders do not have a free hand to do an inspection at will, at least not when the real intent is to uncover illegal activity. I would bet that the inspection was not targeted at the two individuals caught in, or close to the act. But the supposed inspection was meant to uncover unknown individuals breaking the rules. The key point is obviously the timing of the inspection. The point to make is how many other 0400 inspections have occurred at this command? I am certain that a 0400 inspection is not normal. This is when people sleep and the only reason to inspect them while they are in bed is to see who they are in bed with. Contrary to popular belief, members of the military are entitled to privacy. The rules for this are extensively covered in the military rules of evidence. Research this manual, not the RCM.
It has been several years since I fought this battle. I filed a motion to dismiss the evidence based on an illegal search on my base housing unit. I feel that it wise to at least threaten to fight this charge based on the illegal search. This may prompt the convening authority to consider a much more favorable means of punishment or a better pretrial agreement. At least this is what I believe got me my pretrial agreement of no bad conduct discharge. The command agreed to the PTA and I agreed to drop the motion. Good luck and fight on! …CeLaw

[badapple40]

Originally Posted by CeLaw

Bad Apple, I disagree. An inspection is not allowed to be a cover for a search without a warrant. And commanders do need a warrant to do a search. Commanders do not have a free hand to do an inspection at will, at least not when the real intent is to uncover illegal activity. I would bet that the inspection was not targeted at the two individuals caught in, or close to the act. But the supposed inspection was meant to uncover unknown individuals breaking the rules. The key point is obviously the timing of the inspection. The point to make is how many other 0400 inspections have occurred at this command? I am certain that a 0400 inspection is not normal. This is when people sleep and the only reason to inspect them while they are in bed is to see who they are in bed with. Contrary to popular belief, members of the military are entitled to privacy. The rules for this are extensively covered in the military rules of evidence. Research this manual, not the RCM.
It has been several years since I fought this battle. I filed a motion to dismiss the evidence based on an illegal search on my base housing unit. I feel that it wise to at least threaten to fight this charge based on the illegal search. This may prompt the convening authority to consider a much more favorable means of punishment or a better pretrial agreement. At least this is what I believe got me my pretrial agreement of no bad conduct discharge. The command agreed to the PTA and I agreed to drop the motion. Good luck and fight on! …CeLaw

Man, you are arguing with the wrong person. Base housing, vis-a-vis a barracks room, is entitled to more protection due to a greater expectation of privacy. Unless the search was merely a pretext for confirming/targeting a specific individual, it will hold up and the evidence does not get suppressed.

Now, just like I always do when challenged by someone who is clearly mistaken and giving poor advice:

In United States v. Middleton, 10 M.J. 123 (1981), the Court of Military Appeals unanimously sustained the authority of commanders to conduct unit inspections. It noted that "such inspections are time-honored and go back to the earliest days of the organized militia." It observed that "the inspection has traditionally been a 'tool' for a commander to use in insuring 'the overall fitness of [his] unit to perform its military mission.'" Id. at 127 (citations and footnote omitted). After noting that the services "have made increasing efforts to provide privacy for servicemembers in their dormitories and barracks," id. at 128 n.8, it emphasized that, "while the living conditions of the modern serviceperson may be more comfortable -- and, indeed, more private -- than those known by their fathers, still the basic purpose for existence of the military has not altered; and neither has the need for the tool of inspection to insure the readiness of the individual serviceperson and of his unit to respond to an emergency." Id. at 128 (footnote omitted).

With respect to the expectations of privacy under the Fourth Amendment, the court concluded that, "during a traditional military inspection, no serviceperson whose area is subject to the inspection may reasonably expect any privacy which will be protected from the inspection." Id. at 128. At the same time, the Court noted that an inspection might not be sustained if its character changed during the process or if the circumstances were unreasonable. Id. at nn. 9 and 10. The President has implemented this concern in Mil.R.Evid. 313(b) by providing that the "primary purpose" of an inspection cannot be to "obtain[] evidence for use in a trial by court-martial." However, the Rule expressly permits use of the fruits of an inspection in a disciplinary proceeding, so long as the primary purpose is "to determine and to ensure the security, military fitness, or good order and discipline of the unit[.]"


In United States v. Jackson, 48 M.J. 292, the Court of Appeals for the Armed Forces noted that:

Mil.R.Evid. 313(b) makes clear that it is reasonable for an inspection to include "an examination to locate and confiscate unlawful weapons and other contraband" and permits such an examination, even if it "was directed immediately following a report of a specific offense in the unit . . . and was not previously scheduled[.]" In order to meet the primary purpose test in such a case, the Government must "prove by clear and convincing evidence" that the examination met the criteria for an inspection with regard to its military purpose.

The Court then went on to hold that:

Mil.R.Evid. 313(b) specifically recognizes that there is no need for an inspection to be preplanned or randomly scheduled. The inquiry under Mil.R.Evid. 313(b) focuses on whether the "primary purpose" of the inspection was "to determine and to ensure the security, military fitness, or good order and discipline of the unit." See also United States v. Taylor, 41 M.J. 168, 172 (CMA 1994) ("principal focus" is on the role of the commander); United States v. Gardner, 41 M.J. 189, 191 (CMA 1994) ("litmus test is whether the examination is made primarily for administrative purposes or instead for obtaining incriminating evidence"); S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 342 (4th ed. 1997).

So long as the primary purpose of the examination is "unit readiness" and not disciplinary proceedings, it is permissible both: (1) for an inspection to take place after the commander receives specific information about the presence of contraband; and (2) for an inspection for weapons or contraband to result in disciplinary proceedings.

In United States v. Jackson, 48 M.J. 292, the facts established that:

On January 26, 1994, appellant's unit commander, Captain (CPT) Lamport, was informed by Criminal Investigation Command (CID) Special Agent (SA) Foster that an anonymous female friend of appellant had reported that she had witnessed appellant selling drugs in his barracks room the previous evening. The woman also had said that appellant hid the drugs in a stereo speaker in his room.

This information raised two separate concerns. First, that a member of CPT Lamport's unit might have committed a crime in the barracks. Second, that as a result of this activity, illegal drugs may have been distributed to others within the barracks, thereby undermining the military readiness of the unit. Although CPT Lamport -- after consulting with the battalion's legal adviser -- concluded that the information was not sufficiently reliable to authorize a probable cause search of appellant's room under Mil.R.Evid. 314, he determined that the information about distribution of drugs in the barracks was sufficient to raise concerns about the readiness of the unit.

As a result of these concerns, CPT Lamport ordered a health and welfare inspection "to find out on a whole what the unit was like for drugs and if anybody else had been using" drugs. CPT Lamport contacted the local canine unit, had a dog handler prove the reliability of the dog's drug-sniffing capability, and posted non-commissioned officers (NCOs) as guards at all entrances and exits to prevent the removal of evidence. All 36 barracks rooms assigned to members of CPT Lamport's unit were inspected, and CPT Lamport told the inspector to "look at every room" and not to focus on any particular room.

The health and welfare inspection took place about "an hour to an hour and a half after" SA Foster told CPT Lamport about the anonymous tip. The inspection was carried out by two canine units (dogs and handlers), SA Foster (accompanying the canine team chief), and "numerous NCOs."

After one of the drug dogs alerted in appellant's room, SA Foster, who was standing by in case any drugs were found, entered the room to help the canine team. The dog handler opened a stereo speaker and discovered a small bag, which he suspected contained marijuana. SA Foster conducted a field test of the substance and confirmed that it was marijuana. The record does not reflect whether SA Foster departed the barracks after he seized the marijuana or remained with the canine team until the examination of all 36 rooms was completed.

Noting that "[t]here is no evidence, however, that the inspection was "a pretext or subterfuge for an otherwise illegal search," the Court of Appeals of the Armed Forces upheld the denial of the motion to supress, ruling the MWH inspection, and items obtained from it, were obtained legally.

All inspections are aimed towards finding illegal activity or contraband. The key is whether there is particularized suspicion of an individual soldier, no probable cause, and the inspection is merely a pretext for nailing that individual. That is clearly not the case here. A generalized suspicion that soldiers may have unauthorized persons in their room doesn't cut it -- it is no different and presents better facts than those present in Jackson.

The lesson for today is over.

[CeLaw]

BadApple, I apologize for not doing my homework and answering (and more importantly challenge you) with out a rules of evidence or any case laws to back it up. I will more clearly state that I have an opinion rather than I statement of fact next time I answer another post. The last thing I want to do is to mislead someone and make a bad situation worse.
As for being on the wrong end of a court martial and think I know it all, well, I don't. I did do a lot of my own research when defending my case. I also did a lot of research in my medical challenges. I try to state that I have experience, not expertise, in military law. I do believe that I would not have accomplished as much as I have if it weren’t for my own research and diligence in defending my case. BTW, nice meeting you and I do appreciate the lesson! CeLaw

PS> Can we be friends? I am sure that if we work together, we may be able to accomplish something…

[badapple40]

OK -- I've editted to be a little nicer. Seriously, when you create legal research work for me to have to prove that I am right, it jerks my chain. Granted, I answer off the cuff, but I do so with 16 years experience on active duty (20 if you count the Academy), most of which as a judge advocate, and because I understand basic legal issues.

If you want to challenge me, all I ask is that you do your homework first.

[CeLaw]

BadApple,
True about the homework! I didn't have a rules of evidence book with me to research the issue. Perhaps I should not have came out and stated that I disagree and should have more clearly stated that I was not an expert, but rather had an opinion. I try to be cautious and state “I think”, rather than “I know” When one states they think they have the answer as opposed to knowing the answer, it allows for a small amount of protection when someone proves them wrong. Politicians do it all the time.
Most of my knowledge with searches and rules if evidence involves military housing. I never had the need to research the MWH inspections exclusively. I did come across the several case laws about MWH inspections including the Jackson case, but I was mainly interested in the search warrant & probable cause issues. One area I found a lot of information about searches & inspections was the Navy’s Master at Arms training manuals.
I thank you for editing your reply . I certainly was never in the position to reply in the same manner because your reputation here commands more respect than I could ever expect. I admit to people that I tend to see the law how I want to see rather than how it really is. My sole mission in life is to expunge my SCM conviction so that I may once again be free. But that topic requires a new thread. Maybe I’ll get a chance to put something together and have you comment on the information I have gathered. I do know that as it stands now, the only way to get relief from a conviction is thru a presidential pardon, but that could soon change! Have a good Easter weekend, CeLaw

[tacsatarmy]

Most unit commanders have a policy letter stating that they can do inspections whenever, wherever, at random. They do not have to be announced. If your barracks have CQ, check the CQ book. If not, the policy letter is probably posted at the Company. I don't know if they can charge you for adultery, but I am willing to bet someone's spouse is going to be pissed regardless!

[GRP_4_CHRIST]

I've been around in the Army a day or two now and I've seen health & welfares to include search of POV's (Personal Owned Vehicles). This includes searches with MWD's (Military Working Dogs). Personally, I don't see the problem walking a dog along the outside of a closed door. I don't see the problem with any drugs being found used for a urine analysis then possible further UCMJ action is a positive is found. Commandes are responsible to ensure Soldiers are maintaining a safe vehicle and safe living enviroment even off post. I don't expect my commander to neccesarily to come over and check my home but I do expect someone in my chain of command to know where I live and how I'm living (i.e. clean enviroment, no off-limits areas, etc). Same thought line applies to my vehicle (i.e. no bald tires, no signs of drinking and driving, etc).

I guess my big question is then, does a commander have the right to search POV's? What about telling Soldiers to park in a common area and then having the dogs sweep the outside of the vehicles?

[SHORTY LONG]

Poster, you have posted to a very old post. Please start a new post/thread, and include
the name of your State; if not, let me know, and I will help you out!