*1 STATES, Appellant, UNITED
v. MILLER, Airman,
Michael C. Senior Force, Appellee.
U.S. Air
No. 07-5004.
CCA Misc. Dkt. No. 2007-02.
U.S. Court of
the Armed Forces.
Argued Jan. 2008. May
Decided Appellant: Captain
For L. Jamie Mendel- (argued); son Colonel Gerald B. Bruce and Captain (on brief); E. McBride Jefferson Major Ward, Matthew Major S. Donna S. Rueppell, Captain Ryan N. Hoback. (ar- Appellee: Dwight For H. Sullivan gued); Lieutenant Colonel Mark R. Strick- (on Captain Anthony land and D. Ortiz brief).
Judge ¿pinion STUCKY delivered the the Court. Judge Advocate General
Force certified an issue to this Court under 67(a)(2), Uniform Code (UCMJ), 867(a)(2) (2000), Justice 10 U.S.C. asking a military judge whether abused his granting discretion in a motion to suppress resulting Appellee’s all evidence urinal- ysis. military judge We find did not suppressing abuse his discretion the uri- nalysis results.1 sup- pellee’s jurisdiction motion to attach documents motion to lack dismiss for port granted. Appel- a motion to dismiss Victoria, Lopez is denied. See United States v. de Appellant’s opposition lee’s motion to strike (C.A.A.F.2008). denied, Appellee's motion dismiss is *2 307 by a civilian order issued of an unlawful uct i. authority to have command ART who did not (SMSgt) Lin- Sergeant Van Senior Master was and that confession the order issue Drug Re- as the Demand gen assigned was urinalysis. The of the unlawful the fruit Manager and Program duction motion, arguing the opposed Government Manager at Testing Program Administrative product of the instal- and a order was lawful Massachusetts, Base, Air Reserve urinalysis pro- random lation commander’s part As an Air Force Reserve installation. military judge heard evidence gram. The drug testing program run of the installation testing Appellee’s of urine that the and ruled approval of the installation with the tacit and was thus on an unlawful order was based a SMSgt Lingen used com- Van suppressed command. He not incident to list of puter program generate to a random an unlawful search urinalysis results as to be tested. also names of individuals fruit that search. of confession provided to produced the notification letters gave proper The notice testing. Government personnel for Air to United States Force appealed serving Appellee was reservist who was 62, Appeals under Article of Criminal Court SMSgt duty an active tour. Van extended UCMJ, 10 U.S.C. 862 randomly Lingen’s select- computer military affirmed the Criminal of specimen for provide urine ed Miller, v. States judge’s rulings. United testing. Major Ryan, an No.2007-02, 2007 CCA LEXIS Dkt. Misc. (ART), notifying signed the letter Technician (A.F.Ct. 252, *8, 2050646, *4 2007 WL requirement provide 26, (unpublished). Crim.App. June testing. specimen urine certi- Judge Advocate General for consideration. the issue to this Court fied employees full-time civilian ARTs are are the Air Force who also members they unit which are Force Reserve II. Dep’t of employed capacity. in their civilian military judge’s decision We review the Air an abuse of suppress or admit evidence (ART) 1 Program, Technician Attachment Beckett, v. discretion. United States 1994). (July capacity, In his civilian Ma- (C.A.A.F.1998); v. United States jor military Ryan his uniform wore (C.A.A.F.1995). A 298 Ayala, 43 M.J. support the assistant mission offi- served as his military judge abuses his discretion when he serving duty, cer. on active When erroneous, clearly findings of fact are assigned support group as the mission vice by an is influenced erroneous court’s decision Major serving in his Ryan was law, military judge’s deci- or the view the civilian, military, capacity when he not his range at hand is outside sion the issue he signed notifying Appellee that the letter appli- reasonably arising from the of choices specimen. required to a urine States v. and the law. See United cable facts using suspected of Appellee had not been (C.A.A.F.2004) Gore, (citing M.J. 187 60 drugs positive his test. before Wallace, 1214,1217 964 F.2d v. United States however, cocaine, positive for Once he tested (D.C.Cir.1992); v. States n. 3 United Sulli- Special agents the Air Force Office of van, (C.A.A.F.1995)). 363 M.J. Investigations Appellee into their of- called response In to their questioning.
fice for from a in Evidence obtained using cocaine questions, Appellee admitted at trial when relevant spection is admissible he ordered four occasions since was on about inadmissible and not otherwise duty status. onto active Military Rule of Military Rules of Evidence. (M.R.E.) 313(a). Evidence trial, suppress moved At examination of the “inspection” An of his confession and the results unit, organization, part instal- prod- was the whole argued test. test He lation, aircraft, vehicle, vessel, including in Appellee’s chain of command an examination conducted at entrance and at the installation directed that a test be points, exit Although conducted as incident SMSgt Lingen conducted. testi- primary purpose of command the which is urinaly- fied that ran he the installation-wide *3 security, to determine and to ensure the program sis on behalf of the installation com- fitness, good or order and mander, disci- prove Government failed to unit, installation, pline organization, letter, directive, any policy existence of local vehicle____ aircraft, vessel, An order or other instruction to that establish West- fluids, urine, produce bodily such as is over Air program.2 Reserve Base had such a permissible in accordance with this rule. recognize a We that commander can estab- drug testing program lish a 313(b) such that ran- added). (emphasis M.R.E. by dom computer program selection authority inspection to order an is, equates a direction to test. There directly under M.R.E. 313 is tied to a com however, no evidence such was the case authority; mander’s inherent it is the con Westover Air Base. At Reserve the time he nection authority, with command signed directing the letter pro- responsibility commander’s to ensure fitness specimen, Major Ryan vide urine inwas unit, of a keeps inspection that a valid and, therefore, civilian status not able to act scheme parameters. within constitutional 2.1.2.1.1; para. as a AFI Bickel, 277, 280, 282 1993/19, Op. Ops. JAGAF 5 Civ. Law (C.M.A.1990). tie, connection, This be (Feb. 22,1993). facts, 234 Under these there inspection authority tween the and command nothing is directing that connects the letter important justifying the reasonableness legitimate to test with a of what is otherwise warrantless search. authority. command Appellee’s Thus urinal- Id. at 285-86. ysis test was not an incident of command and Air Force installation commanders comply Operating did with M.R.E. 313. ensuring are tasked with that the service’s inspection program “auto-pilot,” with- testing drug program is conducted accor here, out input, command as was done nei- dance with all applicable Dep’t of directives. legitimate ther constitutes a order to test nor Force, 44-120, Air Instr. Abuse requirements satisfies the of M.R.E. 313. 2000) Testing Program (July [hereinafter 44-120], AFI respon Unit commanders are III. directing for drug sible that tests be conduct para. “military ed. Id. A unit 4.7.6.I. is a circumstances, Under these we affirm the organization constituted directives issued decision of the Air United States Force Dep’t USAF.” of the Air [¶] Court of Criminal and sustain the Organization para. Force military judge’s suppression Appellee’s 2.1.2. (Apr. [hereinafter AFI 38- urinalysis resulting and the confession. Thus, recognize we “unit 101]. that the term commander” is not limited to an individual’s BAKER, EFFRON, Judge, with whom immediate but also includes joins Judge, (dissenting): Chief higher-level commanders the chain com mand. disagree majority’s with the conclusion earlier, urinaly- that there was no command-directed inspection
As discussed a valid program sis conducted an incident of command. But Westover Reserve Base (ARB). contrary, the Government failed to that establish To the the installation Aerospace responsibilities delegated 2. The dissent would find Medi- commander under Instruction, Operating promulgated by cine Squadron Aerospace AFI 44-120 Medical Aerospace Squadron order of the 439th Medical Commander, Aerospace nor there evidence the Commander, an exercise the instal- constitutes Squadron Medical Commander was in authority lation commander’s inherent command to purposes chain of command of M.R.E. inspect assigned members to the installation. inspections. However, there is no evidence the installation Re- Second, that the AFI 44-120 directs established (in (M.R.E.) 313; Commander serve Medical Unit Rule Evidence base) shall serve as urinalysis by of a reserve ease pellee was selected to responsibility for installa- primary office of an authorized who used a neutral official testing para. Id. programs. compliant tion process with random selection sample; 4.7.2. 313; provided M.R.E. and, it admissi- positive; the result was Third, website publicly accessible Therefore, I would
ble under M.R.E. Brigadier Base lists Westover United States reverse the decision Gen) Jr. Farris (Brig Wallace W. General Moreover, Appeals. of Criminal of the Air Force as “commander applied by mili- the lawful Wing, Airlift 439th Command’s *4 urinalysis in judge suppressing in the tary Base, Mass.” Westover Air Reserve case, off-target confusing and and this Base, http://www.westover.afrc.af. As a not be affirmed this Court. should 2008). Brig Apr. Gen mil visited Oast result, respectfully dissent. officer listed and Farris is the most senior the officer listed as base majority the result of there is no other The invalidates urinalysis grounds that: test on the pellee’s (1) failed to establish Government “[T]he Fourth, copy of Aero- record includes a appellee’s in chain of
that
Operating In-
Squadron
space Medicine
conduct-
directed that
test be
command
promulgated
January
on
struction
ed”;
4, 2005,
THE COM-
“BY ORDER OF
MEDI-
(2)
AEROSPACE
was a MANDER 439th
is “no evidence” that there
There
testing program
SQUADRON.” Dep’t
at
of the
drug
CINE
command-directed
Base;
Force,
Operating
Aerospace
Medicine
44-104,
Testing
Drug
Pro-
Abuse
Instr.
“[Tjhere
(3)
nothing
that connects the
(Jan.
2005)
gram
[hereinafter
at 1
directing Appellee to test with a
letter
Operating
According
Instruction].
AMDS
legitimate
authority.”
command
website,
Aerospace
the 439th
Medi-
Miller,
installation
Gen
distinguish
for this
its
pursuant
of the Air Force’s
judge’s
that used at trial. The military
anal-
Brig
directive.
Gen Farris exercised his
ysis
applied
is erroneous as
to M.R.E. 313.
authority
command
through
Aerospace
military judge
by focusing
erred
Squadron,
provided
Medicine
the AFI
authority
punitive
to issue a
order under
144-120.
Uniform Code of
Justice
(UCMJ),
10 U.S.C. 892
There is no
Notwithstanding
the existence
these two
requirement
directives,
under M.R.E.
that an
indi-
majority
leaves one to con-
(1)
vidual be notified of
par-
selection to
Brig
ignored
clude that:
Gen
his/her
Farris
ticipate
inspection through
punitive
in an
secretary’s
directive
establish
under Article
If
UCMJ.
the ser-
program,
Aerospace
Squad-
Medicine
vice chooses to enhance
management
its
purportedly
ron commander
acted with the
the urinalysis program by requiring issuance
authority of the installation commander with-
order,
a punitive
and enforceable
that is a
having
out
authority
fact received
*5
management.
regula-
matter of internal
A
so,
installation commander to do
and/or
tion providing for communication of selection
individuals
for testing
could obtain
punitive order,
through
although permissi-
permission
wing
commander for
ble,
required.
not
regulation
is
Such
exemption
urinalysis
that,
program
service,
individual,
the benefit of the
not the
according
majority,
was never author-
and
right
does not create an individual
to
place.
ized
him in the first
A more
exclude evidence under M.R.E. 313. See
precise
might
when,
exactly
record
indicate
Caceres,
440 U.S.
752-
where,
and how the installation
99 S.Ct.