CeLaw said:
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.
