(dissenting):
Judge Quinn accurately states what I understand to be the basic relationship between the Fourth Amendment and persons in the military service. Included within his review is the principle that Fourth Amendment protection common to civilians also extends to our citizens in military service with the certain ex-, ceptions, one of which has generically been termed military necessity. The major reason for my reaching a decision different from the other court members is that they find the facts of this case sufficient to show a military necessity while I do not. Although Judge Quinn highlights my thinking in this regard, my position needs further clarification.
I
Today, the Court extends the limits of the scope of a search of persons and property beyond that provided for in paragraph 2-3b, AR 190-22, June 12, 1970:
However, if a person refuses to be searched upon entry, he should not be searched over his objection but should be denied access to the post. Searches of persons while on or upon leaving the installation may be made in accordance with paragraph 2-1, or 2-2 [those based upon probable cause and those conducted with a commander’s prior authorization, e.g., search incident to a lawful apprehension, emergency situation, or those with consent of the individual to be searched and public areas] or upon military necessity. (Emphasis added.)
Paragraph l-15a, AR 210-10, September 30, 1968,2 contains a similar provision. I believe that it is reasonable to infer at the time of the promulgation of these regulations the Army was well aware of the general seriousness of the drug problem. Holding in mind the presumption that these regulations were carefully framed and implemented by informed and dedicated persons to meet the needs of the Army, can it be said that the facts of the case at bar are sufficient to display a problem so critical and unique as to allow a commanding officer of a brigade to withdraw rights that Army regulations clearly provide.
I believe the search here to be general in nature, nonconsensual, and not within the authority of either regulation referred to above. Prior to stopping the vehicle in which the appellant was riding, there was no probable cause to believe the vehicle contained, or its occupants possessed, narcotics. The roadblocks in the instant case were not established at the gates of Fort Benning but were inside the post. A close reading of these Army regulations indicates a purpose to authorize a search when an individual is coming on or going from an installation; other searches depend upon the existence of probable cause or a showing of military necessity. See paragraph 1-15.3, AR 210-10.
According to a chart entered as Prosecution Exhibit 1, there were about 30 cases of drug use per quarter among personnel in the brigade. These data referred to cases "as recorded in military police files or in civilian police files downtown” and included "persons turning narcotics in — reporting themselves as being narcotics users.” I do not intend to minimize the terrible harm that drugs have visited upon so many of our citizens both in and out of military service. One case of drug use is to be taken seriously; 30 cases per quarter most seriously. However, that is not the issue. Our examination must be to discover whether the Government produced sufficient evidence that the drug cases have endangered or reasonably can endanger the security of the command or the ability of the command to perform its mission. First, there is no direct evidence *472that the drug cases impacted upon the command in either of these respects. Quite obviously the loss of service of any member for any appreciable time because of drug use has some adverse effect upon the unit — 30 such persons no doubt will cause more harm. Such evidence is distant from providing a basis for the inference that the security and performance of a brigade of more .than 5000 men is jeopardized. Furthermore, the evidence does not discriminate concerning what sort of drugs were involved in the 30 cases. But to the extent that a problem of epidemic proportions alone will justify lifting Fourth Amendment protections, no such epidemic appears on the facts of this case.
Without laboring the point, the same lack of available facts from which inference of military necessity is found upon consideration of the 25 larcenies per month when in all solved cases (the facts do not reveal the number) the offender was involved with drugs. Viewed in total and not forgetting the insidious social and moral results of drug use and the drug culture, I find no reason to infer that the problem with drugs is more damaging to the 197th Infantry Brigade than the drug problem is within any other unit at Fort Benning, Georgia, West Germany, Vietnam, or any other military installation in the world. These facts simply do not justify sweeping away Fourth Amendment rights of those within the Kelly Hill areas while other men and women upon installations all over the world continue to enjoy these rights without the faintest showing that those on Kelly Hill are in any different class in this respect.
II
If there are sufficient facts to prove the existence of military necessity, then the search of the appellant and the others was without the protection of the Fourth Amendment. The extent of the actual intrusion in search for drugs was reasonable. The search was not physically shocking as was the search in Rochin v California, 342 US 165 (1952). Indeed, the very nature of drug possession where substances can be hidden in the smallest and least discernable places on one’s person or property, demands a most extensive and thorough search.
After finding military necessity, which I do not, but the majority does, the discussion of the so-called "amnesty” barrel, the dog Rex, and custom’s search are not really material. However, there are problems involved if there is any connotation that even absent facts showing military necessity that the facts show a permissible administrative inspection reasonable under the circumstances.
I would divorce the search in the instant case from those this Court has dubbed as an administrative inspection or "shakedown” which may be made without authorization to search and not upon probable cause. See my dissent in United States v Poundstone, 22 USCMA 277, 283, 46 CMR 277, 283 (1973). The appellant was a passenger in a private vehicle, apparently off-duty. Extending the inspection theory this far has the result of pragmatically doing away with the Fourth Amendment on Kelly Hill. If the search of this vehicle can be justified as an administrative search, using the same reasoning, I see no reason why a person could not be searched at any time or place in that area.
The use of the amnesty barrel deserves comment. Can one who disposes of drugs in the barrel be guaranteed amnesty? Perhaps a good argument can be made in bar of prosecution for possession prior to using the barrel by the commander of the brigade. But I am unable to see how the amnesty cover can insulate one from prosecution initiated by another person under paragraph 29 b, Manual for Courts-Martial, United States, 1969 (Rev). Nor are there guarantees that the incriminating act of using the barrel will not be used against the person in other ways, for example, by identifying him as a drug abuser which would subject him to loss of privileges. See, e.g., VII Corps Cir 600-3, Alcohol and Drug Abuse Protection and Control (February 9, 1973). The use of such a barrel hopefully has aided in the control of the passage of drugs into the Kelly Hill area, but it is without any real legal impact. A person entering the area always could opt not wittingly to have *473drugs in his possession. However, upon reaching the second roadblock, the record seems clear that those who were in possession of drugs risked prosecution. There seems to be no less risk of being prosecuted for drug possession at the second roadblock than experienced at any other place at Fort Benning. A realistic approach is that a search for drugs is for two purposes: (1) to interdict their flow; and (2) to expose their possessor to prosecution. Granting emphasis on the first cannot lessen the reality of the second.
Finally, the use of the amnesty barrel and the dog tend to frustrate the expressed purpose of the scheme. According to the prosecution Rex was so reliable that he would alert even though marijuana was not present at the time of the alert, but was present at a prior time.3 The alert, however, would be the same. Rex would become hyperactive, whine, and paw. The only difference is that in a "true” alert, where marijuana is present, he would be able to pinpoint its location, while in a "dead” alert, where marijuana is no longer present, Rex would be unable to pinpoint its prior location. Thus, it would seem to follow that Sergeant Ragan and Major Jarrell could only guess as to whether the occupants had discarded the marijuana in the amnesty box or decided to take their chances with Rex. Major Jar-rell testified, "We have had cases where individuals have thrown marijuana inte the barrels, but the car is still searched.”
Thus, since the stopping of the vehicle was without any reasonable belief that criminal activity was afoot, and was not within one of the exceptions to the requirement of probable cause, it was vio-lative of the appellant’s Fourth Amendment rights. Rex’s alert and the discovery of cigarette paper, poppy seed, and fine vegetable matter could not lawfully form a basis for the appellant’s arrest. Consequently, I would hold the heroin discovered on the appellant’s person inadmissible. United States v Moore, 19 USCMA 586, 42 CMR 188 (1970); Wong Sun v United States, 371 US 471 (1963); Mapp v Ohio, 367 US 643 (1961).
Instructions of commanders regarding such searches should be specific and complete. Guards should be instructed that incoming persons should not be searched over their objection, but may be denied the right of entry upon refusal to consent to search. All persons entering facilities should be advised in advance (by a sign prominently displayed, AR 420-70) that they are liable to search upon entry, and, while within the confines of the installation or upon exit (AR 190-22).
The brigade commander told Major Jarrell, "if the dog alerts, search.” Apparently the search of the vehicle and all passengers would be conducted without regard to whether the alert were "dead” or "true.”