Plain View Searches

When a government official is in a place where he or she has a lawful right to be, whether by invitation or official duty, evidence of a crime observed in plain view may be seized according to Mil.R.Evid. 316. An often repeated example of this type of lawful seizure arises during a wall locker inspection. While looking at the uniforms of a certain service member, a baggie of marijuana falls to the deck. Its seizure as contraband is

justifiable under these circumstances as having been _{observed in plain view.} Another situation could arise while a searcher is carrying out a duly authorized search for stolen property and comes upon a gun in the search area. Since it is contraband, it is both seizable and

admissible in court-martial proceedings.

Body Views and Intrusions

Under certain circumstances defined in Mil.R.Evid. 312, evidence that is the result of a body view or intrusion will be admissible at court-martial. There are also situations where such body views and intrusions may be performed in a nonconsensual manner and still be admissible.

Visual examination of the unclothed body may be made with the consent of the individual subject to the inspection. An involuntary display of the unclothed body, including a visual examination of body cavities, may be required only if conducted in reasonable fashion and authorized under the following provisions of the Military Rules of Evidence: . Inspections and inventories under Mil.R.Evid. 313 . Searched under Mil.R.Evid. 314(b) and 314(c) if there is a reasonable suspicion that weapons, contraband, or evidence of a crime is concealed on the body of the person to be searched . Searched within jails and similar facilities under

Mil.R.Evid. 314(h) if reasonably necessary to maintain the security of the institution or its personnel l Searched incident to lawful apprehension under

Mil.R.Evid. 315

An examination of the unclothed body under this rule should be conducted whenever practical by a person of the same sex as that of the person being examined, provided, however, that failure to comply with this requirement does not make an examination an unlawful search within the meaning of Mil.R.Evid. 311.

A reasonable nonconsensual physical intrusion into the mouth, nose, and ears may be made when a visual examination of the body is permissible. Nonconsensual intrusions into other body cavities may be made under the following categories.

For purposes of seizure-When there is a clear indication that weapons, contraband, or other evidence of a crime is present, to remove weapons, contraband, or evidence of a crime discovered if such intrusion is made in a reasonable fashion by a person with appropriate medical qualifications.

For purposes of search-To 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 fluids-The 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 evidence

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 purposes-The 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 dog's 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 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 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 dog's 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 dog's alert and surrounding circumstances 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 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 _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.