Under the facts presented, the commander could take the dog into the room: "When the dog is in
the company of the commander or a member of the commander's inspection party in an area which, by
virtue of the inspection, has become "public" to the inspecting party, the dog's detection of odors
emanating even from an area not included within that particular inspection--and, hence, private--is
permissible and may serve to support probable cause sufficient to allow a physical intrusion into that
area in search of the detection item." When the inspection began, "all areas subject to it were public as
to the commander and his inspection party." In this case, however, an examination of the lockers was
not found to be part of the inspection. The commander had not required his people to unlock them and,
in fact, most of the lockers were locked. However, even though the intrusion into the locker was not
found to be a part of the inspection, the dog's alert on the locker was held to have furnished probable
cause for a search of the locker, which was authorized by the commander. U.S. v. Middleton, 10 MJ
123 (CMA, 1981).
Before an inspection is ordered, then, it is important for the commander to determine its scope.
Specifically, what is its purpose? Also, what areas are to be included within the scope of the
inspection? Unless these areas are clearly established, uncertainty is likely to breed confusion and
litigation.
In another case, the commander determined that the billets were "in substandard condition." He
also observed Army issued tools and mess hall utensils in various individual rooms. He decided to hold
an inspection, and instructed the inspection team personnel to examine each individual the same way,
and to inspect each room the same way. He told them to "look for tools, unsanitary conditions, lock
blade knives, laundry bags stuffed with dirty laundry, prescription drugs that were out of date, and any
other contraband or paraphernalia." He did not single out the accused for inspection. The accused was
in the seventh room to be inspected, and marijuana was found in a pocket of his field jacket. The court
concluded that the inspection had two purposes. The first was "to assure the security, military fitness
and good order of the unit," and the second was "to locate and confiscate unlawful weapons and
contraband." This was not a subterfuge, but was reasonable "in terms of both area and purpose." U.S.
v. Tena, 15 MJ 728 (ACMR, 1983).
In another case, during a prior health and welfare inspection, the commander found a large
amount of marijuana. The inspection was performed out of concern for the preparedness of the unit, as
an impending move to Alaska was scheduled. The marijuana problem seemed to be concentrated in
the mortar platoon, so the commander decided to reinspect it. The court concluded that this was
reasonable: "A large amount of marijuana was found in one particular platoon of a unit just a few days
prior to the time the unit was to deploy to Alaska. This drug problem was unusual and unexpected and
the company commander was quite apprehensive about the unit's ability to perform its mission on this
country's outer defensive perimeter. For that reason, he took positive action to ensure insofar as
possible the readiness of his company. Anything less on his part would have been dereliction of duty."
U.S. v. Mitchell, 3 MJ 641 (ACMR, 1977).
MP1021
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