Ask the Lawyer: Fine line between careful inspection and illegal search - Military Law, Military Law Advice, Ask a Lawyer - Military Times

Ask the Lawyer: Fine line between careful inspection and illegal search

Q. Our commander issued an order that we are not allowed to possess cell phones, iPods or adult magazines. My enlisted supervisor decided to do a search of everyone to make sure we didn’t have any of these items. It started with checking some people’s bags, whether they be personal or government-issued. Then he made other people empty their pockets, pouches on their vest, and even went as far as to pat some people down. His justification for this being legal was: “This is a military base, and everyone and everything is subject to search at any time.” Is he correct?

A. No, but this really boils down to the highly technical difference between a search and an inspection. Under Military Rule of Evidence 313, an inspection is an examination of people or property “conducted as an incident of command, the primary purpose of which is to determine and ensure the security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft, or vehicle.”

The commander has broad authority to inspect people and property within his unit.

The general limitation is that the inspection be conducted in a “reasonable manner.” What is “reasonable” will be determined by the circumstances. However, there is no requirement that an inspection be based on “probable cause” or “reasonable suspicion.”

The inspector is required to conduct the inspection uniformly among all personnel, and the areas inspected generally must be similar. Courts have held that if an inspection’s main purpose is found to be collecting evidence in contemplation of a court-martial or for other disciplinary purposes, it will be found invalid and the evidence most likely suppressed.

Examples of valid inspections are drug detection dogs being walked through the barracks and certain random urinalysis testing within a urinalysis program.

Military Rule of Evidence 312 governs physical searches. The constraints are much more restrictive, and again, the court will review the circumstances to determine whether the command acted appropriately.

The situation cited by this reader appears to raise a number of issues. First, if this was a search, then it was seemingly illegal. As a consequence, anything taken pursuant to this search could not be used in any disciplinary actions.

There is an argument, however, that this was a valid and lawful inspection. But inspections generally must be done uniformly and not be selective to some people. If this “inspection” is determined to have been a subterfuge for an illegal search, you are back to the evidence potentially being suppressed.

It’s my experience that most service members have no real idea of the distinctions between an inspection and a legal search. If a service member feels that his privacy rights have been violated, he should seek out legal counsel to determine what recourse, if any, can be had.

Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (www.fedattorney.com). E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.