The commander testified that his purpose "was to ensure the serviceability and the readiness of the
unit and also to look for any and all munitions, flammable materials, food in the barracks which would
draw bugs, illegal contraband, things of this nature." During the inspection, some savings bonds were
found in a pocket of a jacket in the accused's wall locker. The bonds did not appear to have been
stolen, and there was no reason to believe that they had been. The court concluded that a genuine
health and welfare inspection was in progress. Indeed, there was no evidence that the commander's
concern "was anything other than the general welfare and condition of his company." This, however,
did not end the matter.
Although a valid inspection was in progress, the intrusion in question must be within the scope of
the inspection. If, for example, the purpose of an inspection is to make sure that all stereos and
televisions sets are identified with personal markings, there would be no basis for looking inside of
someone's pockets during the inspection. In the present case, none of the purposes for the inspection
warranted an examination of papers removed from the jacket in question. The court concluded that
"commanders and persons conducting such an inspection must be ever faithful to the bounds of a
given inspection, in terms both of area and purpose." U.S. v. Brown, 12 MJ 420 (CMA, 1982).
Two recent military cases illustrate application of MRE 313(b) 's subterfuge rule. In U.S. v. Taylor,
41 MJ 168 (CMA, 1994), accused's urinalysis inspection test results were properly admitted, despite
the fact that the test followed reports that accused had used drugs. The commander who ordered the
test results had no knowledge of the reports. The fact that the accused's section was selected for
inspection because the officer-in-charge, who knew of the report, volunteered his section for testing, did
not make the inspection invalid. However, in U.S. v. Taylor, 41 MJ 177 (CMA, 1994), the subterfuge full
of MRE 313(b) was triggered. Accused's urinalysis inspection test results were improperly admitted
where the urinalysis "inspection" was conducted because the first sergeant heard rumors of drug use in
his unit and prepared a list of suspects, including accused, to be tested . CMA held that the military
judge erred in ruling the government proved by clear and convincing evidence that the inspection was
not a subterfuge for an illegal criminal search.
c. The Primary Purpose Rule. Remember, however, that the primary purpose of the inspection
mustn't be to obtain evidence for use in a court-martial or other disciplinary proceeding. In one case,
the commander scheduled a unit urinalysis examination, later testifying that his primary purpose was
"(A) To find users and initiate disciplinary proceedings against those soldiers who tested positive; (B) to
comply with the requirement that a unit urinalysis be conducted yearly; and (C) to ensure safety within
his unit." In cases such as this, the commander's primary purpose is critical:
"If, however, there are mixed purposes behind the examination, the primary one being other than to
gather evidence for disciplinary action, the evidence may be used at a later disciplinary proceeding."
Here, the military judge at the trial concluded that the commander's testimony showed that his primary
purpose "was to take disciplinary action against any individual who tested positive." On appeal, the
court also concluded that the primary purpose was to identify drug users so that disciplinary action
could be initiated against them. The inspection was, then, improper and the evidence was
inadmissible. U.S. v. Austin, 21 MJ 592 (ACMR, 1985).
1-71
MP1021
Previous Page
