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

App. 22, M.R.E. 313(b) APPENDIX 22
subterfuges. The fact that an inspection that is primarily administrative
in nature may result in a criminal prosecution is unimportant.
Camara v. Municipal Court, 387 U.S. 523, 530–531 (1967).
Indeed, administrative inspections may inherently result in prosecutions
because such inspections are often intended to discover
health and safety defects the presence of which are criminal
offenses. Id. at 531. What is important, to the extent that the
Fourth Amendment is applicable, is protection from unreasonable
violations of privacy. Consequently, Rule 313(b) makes it clear
that an otherwise valid inspection is not rendered invalid solely
because the inspector has as his or her purpose a secondary
“purpose of obtaining evidence for use in a trial by court-martial
or in other disciplinary proceedings …” An examination made,
however, with a primary purpose of prosecution is no longer an
administrative inspection. Inspections are, as has been previously
discussed, lawful acceptable measures to ensure the survival of
the American armed forces and the accomplishment of their mission.
They do not infringe upon the limited reasonable expectation
of privacy held by service personnel. It should be noted,
however, that it is possible for military personnel to be granted a
reasonable expectation of privacy greater than the minimum inherently
recognized by the Constitution. An installation commander
might, for example, declare a BOQ sacrosanct and off
limits to inspections. In such a rare case the reasonable expectation
of privacy held by the relevant personnel could prevent or
substantially limit the power to inspect under the Rule. See Rule
311(c). Such extended expectations of privacy may, however, be
negated with adequate notice.
An inspection “may be made ‘of the whole or part’ of a unit,
organization, installation, vessel, aircraft, or vehicle ... (and is)
conducted as an incident of command.” Inspections are usually
quantitative examinations insofar as they do not normally single
out specific individuals or small groups of individuals. There is,
however, no requirement that the entirety of a unit or organization
be inspected. Unless authority to do so 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.
Inspections for contraband such as drugs have posed a major
problem. Initially, such inspections were viewed simply as a form
of health and welfare inspection, see, e.g., United States v. Unrue,
22 C.M.A. 466, 47 C.M.R. 556 (1973). More recently, however,
the Court of Military Appeals has tended to view them solely as
searches for evidence of crime. See e.g. United States v. Roberts,
2 M.J. 31 (C.M.A. 1976); but see United States v. Harris, 5 M.J.
44, 58 (C.M.A. 1978). Illicit drugs, like unlawful weapons, represent,
however, a potential threat to military efficiency of disastrous
proportions. Consequently, it is entirely appropriate to treat
inspections intended to rid units of contraband that would adversely
affect military fitness as being health and welfare inspections,
see, e.g., Committee for G.I. Rights v. Callaway, 518 F.2d
466 (D.C. Cir. 1975), and the Rule does so.
A careful analysis of the applicable case law, military and
civilian, easily supports this conclusion. Military cases have long
recognized the legitimacy of “health and welfare” inspections and
have defined those inspections as examinations intended to ascertain
and ensure the readiness of personnel and equipment. See,
e . g . , U n i t e d S t a t e s v . G e b h a r t , 1 0 C . M . A . 6 0 6 , 6 1 0 n . 2 , 2 8
C.M.R. 172, 176 n.2 (1959); “(these) types of searches are not to
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be confused with inspections of military personnel … conducted
by a commander in furtherance of the security of his command”;
United States v. Brashears, 45 C.M.R. 438 (A.C.M.R. 1972),
rev’d on other grounds, 21 C.M.A. 522, 45 C.M.R. 326 (1972).
Among the legitimate intents of a proper inspection is the location
and confiscation of unauthorized weapons. See, e.g., United States
v. Grace, 19 C.M.A. 409, 410, 42 C.M.R. 11, 12 (1970). The
justification for this conclusion is clear: unauthorized weapons are
a serious danger to the health of military personnel and therefore
to mission readiness. Contraband that “would affect adversely the
security, military fitness, or good order and discipline” is thus
identical with unauthorized weapons insofar as their effects can
be predicted. Rule 313(b) authorizes inspections for contraband,
and is expressly intended to authorize inspections for unlawful
drugs. As recognized by the Court of Military Appeals in United
States v. Unrue, 22 C.M.A. 466, 469–70, 47 C.M.R. 556, 559–60
(1973), unlawful drugs pose unique problems. If uncontrolled,
they may create an “epidemic,” 47 C.M.R. at 559. Their use is
not only contagious as peer pressure in barracks, aboard ship, and
in units, tends to impel the spread of improper drug use, but the
effects are known to render units unfit to accomplish their missions.
Viewed in this light, it is apparent that inspection for those
drugs which would “affect adversely the security, military fitness,
or good order and discipline of the command” is a proper administrative
intent well within the decisions of the United States
Supreme Court. See, e.g., Camara v. Municipal Court, 387 U.S.
523 (1967); United States v. Unrue, 22 C.M.A. 446, 471, 47
C.M.R. 556, 561 (1973) (Judge Duncan dissenting). This conclusion
is buttressed by the fact that members of the military have a
diminished expectation of privacy, and that inspections for such
contraband are “reasonable” within the meaning of the Fourth
Amendment. See, e.g., Committee for G.I. Rights v. Callaway,
518 F.2d 466 (D.C. Cir. 1975). Although there are a number of
decisions of the Court of Military Appeals that have called the
legality of inspections for unlawful drugs into question,see United
States v. Thomas, supra; United States v. Roberts, 2 M.J. 31
(C.M.A. 1977), those decisions with their multiple opinions are
not dispositive. Particularly important to this conclusion is the
opinion of Judge Perry in United States v. Roberts, supra. Three
significant themes are present in the opinion: lack of express
authority for such inspections, the perception that unlawful drugs
are merely evidence of crime, and the high risk that inspections
may be used for subterfuge searches. The new Rule is intended to
resolve these matters fully. The Rule, as part of an express Executive
Order, supplies the explicit authorization for inspections
then lacking. Secondly, the Rule is intended to make plain the
fact that an inspection that has as its object the prevention and
correction of conditions harmful to readiness is far more than a
hunt for evidence. Indeed, it is the express judgment of the Committee
that the uncontrolled use of unlawful drugs within the
armed forces creates a readiness crisis and that continued use of
such drugs is totally incompatible with the possibility of effectively
fielding military forces capable of accomplishing their assigned
mission. Thirdly, Rule 313(b) specifically deals with the
subterfuge question in order to prevent improper use of inspections.
Rule 313(b) requires that before an inspection intended “to
locate and confiscate unlawful weapons or other contraband, that
would affect adversely the ... command” may take place, there