Yes, evidence of a crime that is discovered during a lawful command-authorized inspection can be used to support criminal charges at a court-martial. However, the inspection itself must be legitimate. Under Military Rule of Evidence 313, a military inspection is a routine examination to determine and ensure the security, military fitness, or good order and discipline of a unit. Its primary purpose must not be to gather evidence for a criminal prosecution. If contraband or evidence of a crime is found in plain view during a lawful inspection, it can be legally seized and used against a service member.
A military defense attorney will challenge the use of such evidence by filing a motion to suppress, arguing that the “inspection” was actually a “subterfuge search.” The attorney will seek to prove that the commander’s primary purpose was not to check for readiness but was to look for evidence of a specific crime. Evidence to support this could include the commander having received a tip about misconduct right before ordering the “inspection,” or if only one specific soldier’s belongings were targeted during a supposed unit-wide inspection. This argument asserts the command used the guise of an inspection to bypass the probable cause requirement for a search.
The military judge will then hold a hearing to determine the commander’s primary purpose. If the judge finds that the inspection was a pretext and that the commander’s real intent was to conduct a criminal search, the judge will rule the inspection was an illegal search under the Fourth Amendment. Consequently, all evidence seized as a result of that illegal search will be suppressed under the exclusionary rule. This can be fatal to the government’s case if it was their only evidence, demonstrating the critical distinction between a lawful inspection and an unlawful search.