2008 edition - Fort Sam Houston - U.S. Army

such inspections and inventories need only be permissible under
the Fourth Amendment in order to yield evidence admissible at a
court-martial.
Seizure of property located pursuant to a proper inspection or
inventory must meet the requirements of Rule 316.
(b) Inspections. Rule 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 for the primary function of ensuring mission readiness,
and is a function 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 must be considered as a condition
precedent to the existence of any effective armed force and
inherent in the very concept of a military unit. Inspections as a
general legal concept have their constitutional origins in the very
provisions of the Constitution which authorize the armed forces
of the United States. Explicit authorization for inspections has
thus been viewed in the past as unnecessary, but in light of the
present ambiguous state of the law; see, e.g. United States v.
Thomas, supra; United States v. Roberts, 2 M.J. 31 (C.M.A.
1976), such authorization appears desirable. Rule 313 is thus, in
addition to its status as a rule of evidence authorized by Congress
under Article 36, an express Presidential authorization for inspections
with such authorization being grounded in the President’s
powers as Commander-in-Chief.
The interrelationship of inspections and the Fourth Amendment
is complex. The constitutionality of inspections is apparent and
has been well recognized; see e.g., United States v. Gebhart, 10
C.M.A. 606, 610 n.2, 28 C.M.R. 172, 176 n.2. (1959). There are
three distinct rationales which support the constitutionality of
inspections.
The first such rationale is that inspections are not technically
“searches”within the meaning of the Fourth Amendment. Cf. Air
Pollution Variance Board v. Western Alfalfa Corps, 416 U.S. 861
(1974); Hester v. United States, 265 U.S. 57 (1924). The intent of
the framers, the language of the amendment itself, and the nature
of military life render the application of the Fourth Amendment to
a normal inspection questionable. As the Supreme Court has often
recognized, the “Military is, [by necessity, a specialized society
separate from civilian society.]” Brown v. Glines, 444 U.S. 348,
354 (1980) citing Parker v. Levy, 417 U.S. 733, 734 (1974). As
the Supreme Court noted in Glines, supra, Military personnel
must be ready to perform their duty whenever the occasion arises.
To ensure that they always are capable of performing their mission
promptly and reliably, the military services “must insist upon
a respect for duty and a discipline without counterpart in civilian
life.” 444 U.S. at 354 (citations omitted). An effective armed
force without inspections is impossible— a fact amply illustrated
by the unfettered right to inspect vested in commanders throughout
the armed forces of the world. As recognized in Glines,
supra, and Greer v. Spock, 424 U.S. 828 (1976), the way that the
Bill of Rights applies to military personnel may be different from
the way it applies to civilians. Consequently, although the Fourth
Amendment is applicable to members of the armed forces, inspections
may well not be “searches” within the meaning of the
Fourth Amendment by reason of history, necessity, and constitu-
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 313(b)
tional interpretation. If they are “searches,” they are surely reasonable
ones, and are constitutional on either or both of two
rationales.
As recognized by the Supreme Court, highly regulated industries
are subject to inspection without warrant, United States v.
Biswell, 406 U.S. 311 (1972);Colonnade Catering Corp. v. United
States, 397 U.S. 72 (1970), both because of the necessity for such
inspections and because of the “limited threats to ... justifiable
expectation of privacy.” United States v. Biswell, supra , at 316.
The court in Biswell, supra, found that regulations of firearms
traffic involved “large interests,” that “inspection is a crucial part
of the regulatory scheme,” and that when a firearms dealer enters
the business “he does so with the knowledge that his business
records, firearms, and ammunition will be subject to effective
inspection,” 406 U.S. 315, 316. It is clear that inspections within
the armed forces are at least as important as regulation of firearms;
that without such inspections effective regulation of the
armed forces is impossible; and that all personnel entering the
armed forces can be presumed to know that the reasonable expectation
of privacy within the armed forces is exceedingly limited
by comparison with civilian expectations. See e.g., Committee for
G.I. Rights v. Callaway, 518 F.2d 466 (D.C. Cir. 1975). Under
Colonnade Catering, supra, and Bisell, supra, inspections are
thus reasonable searches and may be made without warrant.
An additional rationale for military inspection is found within
the Supreme Court’s other administrative inspection cases. See
Marshall v. Barlow’s, Inc., 436 U.S. 397 (1978); Camara v.
Municipal Court, 387 U.S. 523 (1967); See City of Seattle, 387
U.S. 541 (1967). Under these precedents an administrative inspection
is constitutionally acceptable for health and safety purposes
so long as such an inspection is first authorized by warrant. The
warrant involved, however, need not be upon probable cause in
the traditional sense, rather the warrant may be issued “if reasonable
legislative or administrative standards for conducting an area
inspection are satisfied …” Camara, supra, 387 U.S. at 538.
Military inspections are intended for health and safety reasons in
a twofold sense: they protect the health and safety of the personnel
in peacetime in a fashion somewhat analogous to that which
protects the health of those in a civilian environment, and, by
ensuring the presence and proper condition of armed forces personnel,
equipment, and environment, they protect those personnel
from becoming unnecessary casualties in the event of combat.
Although Marshall v. Barlow’s Inc., Camara, and See, supra,
require warrants, the intent behind the warrant requirement is to
ensure that the person whose property is inspected is adequately
notified that local law requires inspection, that the person is
notified of the limits of the inspection, and that the person is
adequately notified that the inspector is acting with proper authori
t y . C a m a r a v . M u n i c i p a l C o u r t , 3 8 7 U . S . 5 2 3 , 5 3 2 ( 1 9 6 7 ) .
Within the armed forces, the warrant requirement is met automatically
if an inspection is ordered by a commander, as commanders
are empowered to grant warrants. United States v. Ezell, 6 M.J.
307 (C.M.A. 1979). More importantly, the concerns voiced by the
court are met automatically within the military environment in
any event as the rank and assignment of those inspecting and
their right to do so are known to all. To the extent that the search
warrant requirements are intended to prohibit inspectors from
utilizing inspections as subterfuge searches, a normal inspection
fully meets the concern, and Rule 313(b) expressly prevents such
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