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 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 weaponss 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.

Mil.R.Evid. 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 need.

Mil.R.Evid. 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. This is because the commander's participation in the inspection may render him or her disqualified to authorized searches.

Inventories

Mil.R.Evid. 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.