In Hines, when the persons conducting the inventory arrived at the accused's room, he was not
there, so a passkey was used in order to gain entrance. Inside a closet, they discovered marijuana
plants. The court held that this was a legitimate inventory. Prior notice was not required: "It is the
individual BOQ occupant who has signed for the property that is ultimately responsible for its loss or
misuse. Therefore, the inventorying officers had a legitimate interest in determining their true
administrative accountability without providing notice to those occupants who would stand to lose
financially by the discovery of any discrepancy." Once legitimately inside of the room, they could seize
the marijuana plants under the "plain view" rule. Remember, this occurs when one "while in the course
of otherwise lawful activity, observes in a reasonable fashion, property or evidence that the person has
probable cause to seize." MRE 316 (d) 4.)
Another example of a lawful inventory is one done IAW AR 700-84. This authorizes an inventory of
a soldier's belongings when he is absent without leave. Another example is AR 190-7, paragraph 5-
8(a)(1), which requires an inventory of a soldier's belongings before he goes to a confinement or
correctional facility. In U.S. v. Kazmierczak, 37 CMR 214 (CMA, 1967), the court dealt with an
inventory that had been performed after the accused had been placed in pretrial confinement. It was
upheld, as it served "obvious and legitimate" purposes: "The unit functions under a table of
organization, in which each person assigned to it has defined responsibilities. It must be ready for
emergency operation in time of peace as well as war. Consequently, even the temporary absence of a
member of the unit may require an immediate replacement. If the absent member has left possessions
in the unit, these must be removed to make room for those of the replacement. Common sense
indicates the absentee's effects cannot be tossed casually into a sack and stored...Common sense also
indicates that each article stored for the absentee should be listed to guard against a later claim of
damage or loss." The inventory, then, was not a ruse or pretext for an unlawful search.
If the inventory is found to be no more than a pretext for an illegal search, it will be deemed to be
an illegal search, and the evidence will not be admissible. In one case, the accused had been jailed by
civilian authorities. The commander directed his executive officer to inventory the accused's gear. The
accused's locker was opened with boltcutters. During the "inventory," the executive officer admitted
that he did a more thorough inventory than he had done in other cases, due to the accused's arrest by
the civilian authorities (he had been arrested for indecent exposure and possession of marijuana). He
also admitted that he didn't look or feel in all of the pockets of all of the clothing in the locker. Although
he said that safeguarding the accused's belongings was his purpose for doing the inventory, he didn't
include most of the items he found on the inventory. This was true even for some items that were
found in the same field jacket that contained the marijuana. Also, the normal procedure was to wait 24
hours before doing the inventory, which wasn't followed in this case. The court concluded that the
entire procedure was really a search for marijuana, and not an inventory. Thus, it was simply a pretext
for the unlawful search, not a legitimate inventory under the provisions of AR 700-84. The evidence
was, therefore, inadmissible. U.S. v. Mossbauer, 44 CMR 14 (CMA, 1971).
MP1021
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