In U.S. v. Johnston, 24 MJ 271 (CMA, 1987), the court upheld a urinalysis inspection, but noted
that it could not simply be a subterfuge. Instead, it "must be ordered for a legitimate purpose" and must
be conducted "in a lawful manner." Here, the inspection involved members of the staff at a Naval Brig
in Seattle. The court found reasonable grounds for the inspection. One was simply "the special
interest of the military in ferreting out illegal drugs and protecting the health and fitness of its members."
Another was the "importance of maintaining security in the prisons." This involved the "need to detect
drug abuse among members of the Brig staff who had daily contact with and were responsible for the
security of the Brig prisoners." Such an inspection, however, "may still amount to a subterfuge search
requiring probable cause if it were ordered primarily for the purpose of prosecution." The factors which
"might convert an otherwise valid inspection to detect contraband into a subterfuge search for the fruits
of crime...include whether (1) the examination was directed immediately following a report of a specific
offense in the unit...and was not previously schedule; (2) specific individuals are selected for
examination; or (3) persons examined are subjected to substantially different intrusions during the
same examination." As an example, the inspection mustn't simply be aimed at one individual who is
suspected of drug abuse. U.S. v. Burris, 25 MJ 846 (AFCMR, 1988)." Where any of the above three
factors are present, the government will have a very heavy burden of proof. U.S. V. Parker, 27 MJ 522
d. The scope of the inspection. An inspection must be reasonable and "based upon and limited to
a legitimate military need." Even when an inspection is being conducted, the Fourth Amendment does
not totally disappear: "The private possessions of a member of the military, like that of a private citizen,
are not open to indiscriminate or unreasonable search for evidence of criminal misconduct."
Remember, an inspection that is intended to obtain evidence for use at a court-martial will be
considered to be a search, and not an inspection. U.S. v. Neer, 9 MJ 575 (AFCMR, 1980).
It is extremely important to identify the scope of the inspection. In other words, why is it being
done, and what areas are subject to it? In one case, the commander "decided to conduct a health and
welfare inspection of his unit." This was designed "to check the living area of the troops to ensure the
areas are sanitary, there's no safety hazards, the living conditions are proper and that there's no
condition that would be harmful to the individual." A drug detection dog was used as part of the
inspection. When the inspection team entered the accused's room, the dog alerted on his locker. The
commander "had not told his unit to unlock their wall lockers; while several were left unlocked...most
were left locked and were not disturbed in that condition unless Brandy (the dog) alerted thereon."
The court in that case noted that inspections "are time-honored and go back to the earliest days of
the organized militia." They are a legitimate command tool for ensuring the overall fitness and
readiness of the unit. The court ruled that "during a traditional military inspection, no serviceperson
whose area is subject to the inspection may reasonably expect any privacy which will be protected from
the inspection...during a legitimate health and welfare inspection, the area of the inspection becomes
"public" as to the commander, for no privacy from the commander may be expected within the range of
the inspection." The question, then, is what is the "established zone of the inspection?" The
commander may intrude into that area, "for under the circumstances the individual lacks a reasonable
expectation of privacy from the commander during the inspection."