As you may have observed, one of the categories I have is entitled, “The Judge Says.” This is the 14th such article I am publishing. They are not new. In fact, I wrote them for newspapers in the Fort Riley area back in the 1980s. Unlike wine, they haven’t improved with age. But, there was nothing like this form of communication back then and I think they are worth preserving. So, here is the latest one I have dug out.
The Judge Says, January 23, 1981
Drugs are illegal in the military. Recently the US Court of Military Appeals ruled that you better not get caught dealing in drugs on post or off post. In both cases, the military courts have jurisdiction. With the above in mind, it seems a little outrageous that a soldier would think that he had some right to hide his drug stash, and be able to use some legal mumbo jumbo to insure that he is not tried by court-martial. Until recently, we were advising commanders that they could conduct their health and welfare inspections and seize all contraband; but we weren’t real sure whether we could get a conviction. The commanders were frustrated and so were we.
On January 5, some very positive vibes came out of Washington. In a case called US v. Middleton, the Court of Military Appeals supported the traditional military inspection, the right during that inspection to seize drugs and other contraband, and to use them in court against the suspect. In the Middleton case, the company commander decided to conduct a health and welfare inspection of his unit. This decision was made about three weeks before the inspection. He decided to use a little Brandy during the inspection. This Brandy had four feet and a sensitive nose for sniffing out drugs (not to be confused with a brandy snifter). The commander checked out the dog and the handler prior to the inspection and satisfied himself that they knew their stuff.
While this particular inspection did not include wall lockers (it could have), it did include the rest of the room. While Brandy was in Middleton’s room, she alerted on his wall locker. The company commander was called and again, Brandy went through her search pattern and alerted on the wall locker. Based on what the company commander observed and already knew about Brandy, he ordered a search and guess what? Drugs were found.
The court held that the commander had probable cause to order the search of the locker. Keep in mind that the reason there had to be probable cause was that the wall locker was not within the scope of the inspection. Had Brandy alerted on an area within the scope of the inspection, the contraband could have just been seized without the need for a probable cause search.
It would be difficult to advise a commander to do everything just like Middleton’s commander did. But the language of the court strongly supports health and welfare inspections which are set up at an earlier date (this doesn’t mean that the troops know about it). Don’t wait until someone loses his stereo to decide to hold a health and welfare inspection. The judge will look through the decision and treat the “inspection” as an illegal search.
Written by PJ Rice at www.ricequips.com