United States Vs. Neloms (ACMR 1974). I Survey of irs Potenrid Impact Upon On-Post Vehicular Inspections

• Author: Captain John F. DePue
• Pages: 05

Petitioner was a passenger in a privately owned motor vehicle that was stopped by a roadblock establlshed b i the Provost Ilarshal's Of. fice within the Fort Benning Military Reservation at the intersection of two roads. \Idirary police personnel conducting the roadblock consisted of two teams. The first, handling traffic, selected every fifth vehicle far submssion to a roadside check. The second, comprised of an officer-in-charge. a noncommissioned officer (NCO) dog handler with a specially trained marihuana detecting dag, and a second SCO, would customarily require the occupants of the selected vehicles to exit them leaving the doors ajar. The dag handler would then lead the dog around the autamobde and, in the event the dog alerted, rhe second NCO would search the auto as well as its farmer occupants. The entire procedure was conducted under the a e p of a purported general delegation .of authority from the Fort Benning Commander to his Provasr Marshal tu conduct security inspecnons within the rmervation.

Following this procedure, the S C O dog handler "worked" his dog around the petitioner's vehicle. ]Then it alerted at the right passenger door the OIC gave the second NCO permission to search the automobile. After discovery of what appeared to be marihuana on the floor of the passenger side, petitioner was required to empty the contents of his pockets on the trunk of the car and in doing so prodpced two packages containing heroin. He was subsequently convicted by a specia! court-martial of wrongful possession of heroin in violation of Article 114 of the Uniform Code of \Illnary Justice.

On appeal, the conviction was set aside and the case dismissed by the Army Court ai ,ililirary Renew, which held that insofar as the purportid blanket delecanon of command authority to search vehicles was cunstitutionah excessive, the actions af the military police were supportable only by the legirimare scope of their authoricy to

*The opinions end cmciusmni presented herein re rhore oi the author md do mi necerianly reprerinr the view of The Judge .!.dvocace Generd'r %hod 01

my orher gorarnmenral qmcy

stop a rehicle on a military reservation for safety purpacei and to make incidenral inquiries 'Smce the requirement to k a l e the i-e-hick's doors ajar exceeded the scope of this hired purpose, it v a s riolarii c ui the fourth amendment. Furthermore. the court held ihar such an intrusion could not be supported by an "implied consent" theor!-.'

Although the urilitv 01 this case as precedent 1s reduced bv rhe court's threshold dere;mination that the militq police were n& the legitmare recipients of a quasi-magisterial authority? its anal>sis encompassed three discrete issues relating to rhe emplavmenr of gare searches and intra-installarion checkpoints as secun- them In addition. it reflected upon the dpamism of a "military necessity" theory as a legitimizing vehicle. Since the court's comments on each ai these questions mill lhaie a rubitanrial impact upon the didity of similar prospective measures. they merit some analysis from rhe perspective of earlier judicial as-sertions.

\hl~tary appellate tribunals have 10nq recognmd a commander's aurhoriry to conduct "administrative ii%pectioni" or inrenrories of the personal liiing areas of personnel wrhm Ihs command. Such mtrus~ons uithin areas eenerallv protected bv rhe fourth amendment are USUIIIV justified on-rhe gr&d thar. xithin the militar>- contest. rhev are ;easanablv necessarr to assure rhe welfare. morale. safer!-and combat readiness of the "nit.3

\lore recently, this rationale has been extended ro pcif>- various command-inmared adminisriative measures desiened to interdict or intercept narcotics traffic on military insra~iatio;ls. I" ~-7iired .%.iter

Gaddb the ~lrmv

Court of \Mt& Reiiew daced its imDrimatUr

VEHICULAR INSPECTIONS

upon gate searches in a combat zone. Relying an the inspection cases, it reasoned that, at least in Vietnam, gate searches were similarly a legitimate device for assuring the security and fitness of a command.6 In a second case arising in the Vietnam context, Umted Stater v. Poundstone; an installation commander directed that all vehicles and personnel entering the Phu Lo, basecamp be stopped and inspected as a means of combating the dual problems of unsafe vehicles and drug abuse. The accused, a passenger in a truck entering this camp, v'aa ordered to submit to a personal search. He fled into the camp, was apprehended, and found to be in possession of ten rials of herom. In sustaining his subsequent conviction for wrongful possession of heroin, the two concurring judges of the Court of Xlilitaiy Appeals agreed that an installation commander possesses the inherent authority to take reasonable intrurire measures In executing his respanabil-~tyfor assuring the security af his command. Under the circumstances, the search of military vehicles and personnel entering a mditwy compound was eminently reasonable. The issue of reasonableness was injected in a second way by Judge Quinn. Citing l'nited Stater v, Biruell; he opined in an alternati\w resolution that such gowernmem action ir pmmirsible chez it ir 0 crucial part of I? regala-tory scheme and presents only a limited tiweat to the indidduari expectation of privacy. Accordingly, both resolutions appear...