THE USE OF DRUG-DETECTOR DOGS

LEARNING OBJECTIVES: Describe some of the considerations and requirements when using drug-detector dogs.

Military working dogs can be used as drugdetector 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 MRE 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 dog's alert was 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 car's rear wheels and exterior, and that prompted the police to detain the accused. The proper commander was then notified of this alert and of 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 dog's alert was not a search, but a fact that could be relayed to the proper commander for a determinaion 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 dog-handler. The drug-detector dog is simply an informant. As in the usual informant situation, there must be a showing of the dog's alert and the dog's 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 dog's alert in a controlled situation. The second method is for the CO to review the record of the particular dog's 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 the Military Working Dog Manual, OPNAVINST 5585.2.

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 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 threatens military security and performance is reasonable means to provide probable cause when . the dog alerts in a common area such as a barracks or passageway, or the dog alerts on the airspace extending from an area where there is an expectation of privacy.

INSPECTIONS AND INVENTORIES

LEARNING OBJECTIVES: Explain the general considerations regarding inspections, and list some of the requirements for inventories.

Although not within either category of searches (prior authorization or without prior authorization), administrative inspections and inventories conducted by Government agents may yield evidence admissible in trials by court-martial. MRE 313 codifies the law of military inspections and inventories. Some traditional terms that were formerly used to describe various inspections; for example, shakedown search, have been abandoned as being confusing. If carried out lawfully, inspections and inventories are not designed to be quests for evidence and thus are not searches in the strictest sense. It follows, then, that items of evidence found during these inspections are admissible in court-martial proceedings. If inspections or inventories are 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

MRE 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 necessary to the existence of any effective armed force and inherent in the very concept of a military organization.

MRE 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 Jones suspects Seaman Doe of possessing marijuana because of an anonymous tip received by telephone. Captain Jones cannot proceed to Seaman Doe's locker and inspect it because what he would really be doing is searching it-looking for the marijuana. How about an inspection of all lockers in Seaman Doe's wing of the barracks? That would afford Captain Jones an opportunity to get into Seaman Doe's locker on a pretext. And note that this is not a lawful probablecause 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 Jones, 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 Jones 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 may be 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 some rule of chance. Such procedures will be an effective means to avoid challenges based on grounds that the inspection was a subterfuge for a search. Unless authority to so do has been withheld by competent superior authority, any individual placed in a command or appropriate supervisory position may inspect the personnel and property within his or her control.

An inspection also includes an examination to locate and confiscate unlawful weapons and other contraband. Contraband is defined as "material the possession of which is by its very nature unlawful." Material may be declared to be unlawful by appropriate statute, regulation, or order. For example, liquor is prohibited aboard ship and would be contraband if found in Seaman Doe's seabag aboard ship, although it might not be contraband if found in Seaman Jones' BEQ room.

MRE 313(b) indicates that certain classes of contraband inspections are especially likely to be subterfuge searches and thus not inspections at all. If the contraband inspection (1) occurs immediately after a report of some specific offense in the unit and was not previously scheduled; (2) singles out specific individuals for inspection; or (3) inspects some people substantially more thoroughly than others, then the Government must prove that the inspection was not actually a subterfuge search.

As a practical matter, the rule expresses a clear preference for previously scheduled contraband inspections. Such scheduling helps make sure the inspection is a routine command function and not an excuse to search specific persons or places for evidence of a crime. The inspection should be scheduled sufficiently far enough in advance to eliminate any reasonable chance that the inspection is being used as a subterfuge. Such scheduling may be made as a matter of date or event. In other words, inspections may be scheduled to take place on any specific date, or on the occurrence of a specific event beyond the usual control of the commander. The previously scheduled inspection, however, need not be preannounced.

MRE 313(b) permits a person acting as an inspector to use any reasonable natural or technological aid in conducting an inspection. The marijuana detection dog, for instance, is a natural aid that may be used to assist an inspector in more accurately discovering marijuana during an inspection of a unit for marijuana. If the dog should alert on an area that is not within the scope of the inspection, however, that area may not be searched without a prior authorization. Also, where the CO is conducting the inspection when the dog alerts, he or she should not authorize the search himself or herself, but should seek authorization from some other competent authority.

INVENTORIES

MRE 313(c) codifies case law by recognizing that evidence seized during a bona fide inventory is admissible. The rationale behind this exception to the usual probable-cause requirement is that such an inventory is not prosecutorial in nature and is a reasonable intrusion. Commands may inventory the personal effects of members who are on an unauthorized absence, placed in pretrial confinement, or hospitalized. Contraband or evidence incidentally found during such a legitimate inventory will be admissible in a later criminal proceeding. However, an inventory may not be used as a subterfuge for a search.