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

must be either “a reasonable suspicion that such property is present
in the command” or the inspection must be “a previously
scheduled examination of the command.” The former requirement
requires that an inspection not previously scheduled be justified
by “reasonable suspicion that such property is present in the
command.” This standard is intentionally minimal and requires
only that the person ordering the inspection have a suspicion that
is, under the circumstances, reasonable in nature. Probable cause
is not required. Under the latter requirement, an inspection shall
be scheduled sufficiently far enough in advance as to eliminate
any reasonable probability that the inspection is being used as a
subterfuge, i.e., that it is being used to search a given individual
for evidence of crime when probable cause is lacking. 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, e.g., a commander may decide on the first of a month to
inspect on the 7th, 9th, and 21st, or on the occurrence of a
specific event beyond the usual control of the commander, e.g.,
whenever an alert is ordered, forces are deployed, a ship sails, the
stock market reaches a certain level of activity, etc. It should be
noted that “previously scheduled” inspections that vest discretion
in the inspector are permissible when otherwise lawful. So long
as the examination, e.g., an entrance gate inspection, has been
previously scheduled, the fact that reasonable exercise of discretion
is involved in singling out individuals to be inspected is not
improper; such inspection must not be in violation of the Equal
Protection clause of the 5th Amendment or be used as a subterfuge
intended to allow search of certain specific individuals.
The Rule applies special restrictions to contraband inspections
because of the inherent possibility that such inspection may be
used as subterfuge searches. Although a lawful inspection may be
conducted with a secondary motive to prosecute those found in
possession of contraband, the primary motive must be administrative
in nature. The Rule recognizes the fact that commanders are
o r d i n a r i l y m o r e c o n c e r n e d w i t h r e m o v a l o f c o n t r a b a n d f r o m
u n i t s — t h e r e b y e l i m i n a t i n g i t s n e g a t i v e e f f e c t s o n u n i t
readiness— than with prosecution of those found in possession of
it. The fact that possession of contraband is itself unlawful renders
the probability that an inspection may be a subterfuge somewhat
higher than that for an inspection not intended to locate such
material.
An inspection which has as its intent, or one of its intents, in
whole or in part, the discovery of contraband, however slight,
must comply with the specific requirements set out in the Rule
for inspections for contraband. An inspection which does not
have such an intent need not so comply and will yield admissible
evidence if contraband is found incidentally by the inspection.
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, if liquor
is prohibited aboard ship, a shipboard inspection for liquor must
comply with the rules for inspections for contraband.
Before unlawful weapons or other contraband may be the subject
of an inspection under Rule 313(b), there must be a determination
that “such property would affect adversely the security,
military fitness, or good order and discipline of the command.” In
the event of an adequate defense challenge under Rule 311 to an
inspection for contraband, the prosecution must establish by a
preponderance that such property would in fact so adversely af-
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 313(b)
fect the command. Although the question is an objective one, its
resolution depends heavily on factors unique to the personnel or
location inspected. If such contraband would adversely affect the
ability of the command to complete its assigned mission in any
significant way, the burden is met. The nature of the assigned
mission is unimportant, for that is a matter within the prerogative
of the chain of command only. The expert testimony of those
within the chain of command of a given unit is worthy of great
weight as the only purpose for permitting such an inspection is to
ensure military readiness. The physiological or psychological effects
of a given drug on an individual are normally irrelevant
except insofar as such evidence is relevant to the question of the
user’s ability to perform duties without impaired efficiency. As
inspections are generally quantitative examinations, the nature
and amount of contraband sought is relevant to the question of
the government’s burden. The existence of five unlawful drug
users in an Army division, for example, is unlikely to meet the
Rule’s test involving adverse effect, but five users in an Army
platoon may well do so.
The Rule does not require that personnel to be inspected be
given preliminary notice of the inspection although such advance
notice may well be desirable as a matter of policy or in the
interests, as perhaps in gate inspections, of establishing an alternative
basis, such as consent, for the examination.
R u l e 3 1 3 ( b ) r e q u i r e s t h a t i n s p e c t i o n s b e c o n d u c t e d i n a
“reasonable fashion.” The timing of an inspection and its nature
may be of importance. Inspections conducted at a highly unusual
time are not inherently unreasonable— especially when a legitimate
reason of such timing is present. However, a 0200 inspect
i o n , f o r e x a m p l e , m a y b e u n r e a s o n a b l e d e p e n d i n g u p o n t h e
surrounding circumstances.
The Rule expressly permits the use of “any reasonable or
natural technological aid.” Thus, dogs may be used to detect
contraband in an otherwise valid inspection for contraband. This
conclusion follows directly from the fact that inspections for
contraband conducted in compliance with Rule 313 are lawful.
Consequently, the technique of inspection is generally unimportant
under the new rules. The Committee did, however, as a
matter of policy require that the natural or technological aid be
“reasonable.”
Rule 313(b) recognizes and affirms the commander’s power to
conduct administrative examinations which are primarily nonprosecutorial
in purpose. Personnel directing inspections for contraband
must take special care to ensure that such inspections
comply with Rule 313(b) and thus do not constitute improper
general searches or subterfuges.
1984 Amendment: Much of the foregoing Analysis was rendered
obsolete by amendments made in 1984. The third sentence
of Rule 313(b) was modified and the fourth and sixth sentences
are new.
The fourth sentence is new. The Military Rule of Evidence did
not previously expressly address production of body fluids, perhaps
because of United States v. Ruiz, 23 U.S.C.M.A. 181, 48
C . M . R . 7 9 7 ( 1 9 7 4 ) . R u i z w a s i m p l i c i t l y o v e r r u l e d i n U n i t e d
States v. Armstrong, 9 M.J. 374 (C.M.A. 1980). Uncertainty concerning
the course of the law of inspections may also have contributed
to the drafter’s silence on the matter. See United States v.
Roberts, 2 M.J. 31 (C.M.A. 1976); United States v. Thomas, 1
M.J. 397 (C.M.A. 1976). Much of the uncertainty in this area was
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