United States v. Miller , 66 M.J. 306 ( 2008 )

UNITED STATES, Appellant
v.
Michael C. MILLER, Senior Airman
U.S. Air Force, Appellee
No. 07-5004
CCA Misc. Dkt. No. 2007-02
United States Court of Appeals for the Armed Forces
Argued January 7, 2008
Decided May 20, 2008
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. BAKER, J., filed a dissenting opinion,
in which EFFRON, C.J., joined.
Counsel
For Appellant: Captain Jamie L. Mendelson (argued); Colonel
Gerald R. Bruce and Captain Jefferson E. McBride (on brief);
Major Matthew S. Ward, Major Donna S. Rueppell, and Captain Ryan
N. Hoback.
For Appellee: Dwight H. Sullivan, Esq. (argued); Lieutenant
Colonel Mark R. Strickland and Captain Anthony D. Ortiz (on
brief).
Military Judge: Gary M. Jackson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Miller, No. 07-5004/AF
Judge STUCKY delivered the opinion of the Court.
The Judge Advocate General of the Air Force certified an
issue to this Court under Article 67(a)(2), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2000), asking
whether a military judge abused his discretion in granting a
motion to suppress all evidence resulting from Appellee’s
urinalysis. We find that the military judge did not abuse his
discretion in suppressing the urinalysis results.1
I.
Senior Master Sergeant (SMSgt) Van Lingen was assigned as
the Drug Demand Reduction Program Manager and the Drug Testing
Program Administrative Manager at Westover Air Reserve Base,
Massachusetts, an Air Force Reserve installation. As part of
the installation drug testing program run with the tacit
approval of the installation commander, SMSgt Van Lingen used a
computer program to generate a random list of names of
individuals to be tested. It also produced the notification
letters provided to personnel selected for testing.
Appellee was a reservist who was serving an extended active
duty tour. SMSgt Van Lingen’s computer program randomly
1
Appellee’s motion to attach documents in support of a motion to
dismiss is granted. Appellee’s motion to strike Appellant’s
opposition to Appellee’s motion to dismiss is denied, and
Appellee’s motion to dismiss for lack of jurisdiction is denied.
See United States v. Lopez de Victoria, 66 M.J. 67, 71 (C.A.A.F.
2008).
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selected Appellee to provide a urine specimen for drug testing.
Major Ryan, an Air Reserve Technician (ART), signed the letter
notifying Appellee of the requirement to provide a urine
specimen for testing.
ARTs are full-time civilian employees of the Air Force who
are also members of the Air Force Reserve unit by which they are
employed in their civilian capacity. Dep’t of the Air Force,
Instr. 36-108, Air Reserve Technician (ART) Program, Attachment
1 (July 26, 1994). In his civilian capacity, Major Ryan wore
his military uniform and served as the assistant mission support
officer. When serving on active duty, he was assigned as the
mission support group vice commander. Major Ryan was serving in
his civilian, not his military, capacity when he signed the
letter notifying Appellee that he was required to provide a
urine specimen.
Appellee had not been suspected of using drugs before his
positive urinalysis test. Once he tested positive for cocaine,
however, agents from the Air Force Office of Special
Investigations called Appellee into their office for
questioning. In response to their questions, Appellee admitted
to using cocaine on about four occasions since he was ordered
onto active duty status.
At trial, Appellee moved to suppress his confession and the
results of his urinalysis test. He argued that the test was the
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product of an unlawful order issued by a civilian ART who did
not have command authority to issue the order and that the
confession was the fruit of the unlawful urinalysis. The
Government opposed the motion, arguing the order was lawful and
a product of the installation commander’s random urinalysis
program. The military judge heard evidence and ruled that the
testing of Appellee’s urine was based on an unlawful order and
was thus not incident to command. He suppressed the urinalysis
results as an unlawful search and the confession as fruit of
that search.
The Government gave proper notice and appealed to the
United States Air Force Court of Criminal Appeals under Article
62, UCMJ, 10 U.S.C. § 862 (2000). The Court of Criminal Appeals
affirmed the military judge’s rulings. United States v. Miller,
Misc. Dkt. No. 2007-02, 2007 CCA LEXIS 252, at *8, 2007 WL
2050646, at *4 (A.F. Ct. Crim. App. June 26, 2007)
(unpublished). The Air Force Judge Advocate General certified
the issue to this Court for consideration.
II.
We review a military judge’s decision to suppress or admit
evidence for an abuse of discretion. United States v. Beckett,
49 M.J. 354, 356-57 (C.A.A.F. 1998); United States v. Ayala, 43
M.J. 296, 298 (C.A.A.F. 1995). A military judge abuses his
discretion when his findings of fact are clearly erroneous, the
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court’s decision is influenced by an erroneous view of the law,
or the military judge’s decision on the issue at hand is outside
the range of choices reasonably arising from the applicable
facts and the law. See United States v. Gore, 60 M.J. 178, 187
(C.A.A.F. 2004) (citing United States v. Wallace, 964 F.2d 1214,
1217 n.3 (D.C. Cir. 1992); United States v. Sullivan, 42 M.J.
360, 363 (C.A.A.F. 1995)).
Evidence obtained from a military inspection is admissible
at trial when relevant and not otherwise inadmissible under the
Military Rules of Evidence. Military Rule of Evidence (M.R.E.)
313(a).
An “inspection” is an examination of the whole or part
of a unit, organization, installation, vessel,
aircraft, or vehicle, including an examination
conducted at entrance and exit points, conducted as an
incident of command the primary purpose of which is to
determine and to ensure the security, military fitness,
or good order and discipline of the unit, organization,
installation, vessel, aircraft, or vehicle. . . . An
order to produce bodily fluids, such as urine, is
permissible in accordance with this rule.
M.R.E. 313(b) (emphasis added).
The authority to order an inspection under M.R.E. 313 is
directly tied to a commander’s inherent authority; it is the
connection with command authority, and the commander’s
responsibility to ensure fitness of a unit, that keeps a valid
inspection scheme within constitutional parameters. United
States v. Bickel, 30 M.J. 277, 280, 282 (C.M.A. 1990). This
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tie, or connection, between the inspection and command authority
is important in justifying the reasonableness of what is
otherwise a warrantless search. Id. at 285-86.
Air Force installation commanders are tasked with ensuring
that the service’s drug testing program is conducted in
accordance with all applicable directives. Dep’t of the Air
Force, Instr. 44-120, Drug Abuse Testing Program (July 1, 2000)
[hereinafter AFI 44-120]. Unit commanders are responsible for
directing that drug tests be conducted. Id. para. 4.7.6.1. A
unit is a “military organization constituted by directives
issued by HQ USAF.” Dep’t of the Air Force, Instr. 38-101, Air
Force Organization para. 2.1.2. (Apr. 4, 2006) [hereinafter AFI
38-101]. Thus, we recognize that the term “unit commander” is
not limited to an individual’s immediate commander, but also
includes higher-level commanders in the chain of command.
As discussed earlier, a valid inspection is conducted as an
incident of command. But the Government failed to establish
that any commander in Appellee’s chain of command at the
installation directed that a test be conducted. Although SMSgt
Lingen testified that he ran the installation-wide urinalysis
program on behalf of the installation commander, the Government
failed to prove the existence of any local policy letter,
directive, or other instruction to establish that Westover Air
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United States v. Miller, No. 07-5004/AF
Reserve Base had such a program.2 We recognize that a commander
can establish a drug testing program such that random selection
by the computer program equates to a direction to test. There
is, however, no evidence such was the case at Westover Air
Reserve Base. At the time he signed the letter directing
Appellee to provide a urine specimen, Major Ryan was in civilian
status and, therefore, not able to act as a commander. AFI 38-
101 para. 2.1.2.1.1; Op. JAGAF 1993/19, 5 Civ. Law Ops. 233, 234
(Feb. 22, 1993). Under these facts, there is nothing that
connects the letter directing Appellee to test with a legitimate
exercise of command authority. Thus Appellee’s urinalysis test
was not an incident of command and did not comply with M.R.E.
313. Operating an inspection program on “auto-pilot,” without
command input, as was done here, neither constitutes a
legitimate order to test nor satisfies the requirements of
M.R.E. 313.
2
The dissent would find that an Aerospace Medicine Operating
Instruction, promulgated by the order of the 439th Aerospace
Medical Squadron Commander, constitutes an exercise of the
installation commander’s inherent command authority to inspect
members assigned to the installation. However, there is no
evidence the installation commander delegated his
responsibilities under AFI 44-120 to the Aerospace Medical
Squadron Commander, nor is there evidence the Aerospace Medical
Squadron Commander was in Appellee’s chain of command for the
purposes of M.R.E. 313 inspections.
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United States v. Miller, No. 07-5004/AF
III.
Under these circumstances, we affirm the decision of the
United States Air Force Court of Criminal Appeals and sustain
the military judge’s suppression of Appellee’s urinalysis and
the resulting confession.
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BAKER, Judge, with whom EFFRON, Chief Judge, joins
(dissenting):
I disagree with the majority’s conclusion that there was no
command-directed urinalysis program at Westover Air Reserve Base
(ARB). To the contrary, the installation commander established
a program under Military Rule of Evidence (M.R.E.) 313; Appellee
was selected to provide a urinalysis by a neutral official who
used an authorized random selection process compliant with
M.R.E. 313; Appellee provided a sample; the result was positive;
and, it was admissible under M.R.E. 313. Therefore, I would
reverse the decision of the United States Air Force Court of
Criminal Appeals. Moreover, the lawful order analysis applied
by the military judge in suppressing the urinalysis in this
case, is confusing and off-target and should not be affirmed by
this Court. As a result, I respectfully dissent.
The majority invalidates the result of Appellee’s
urinalysis test on the grounds that:
(1) “[T]he Government failed to establish that any commander in
appellee’s chain of command directed that a test be conducted”;
(2) There is “no evidence” that there was a command-directed
drug testing program at Westover Air Reserve Base; and
(3) “[T]here is nothing that connects the letter directing
Appellee to test with a legitimate exercise of command
authority.”
United States v. Miller, __ M.J. __ (6-7) (C.A.A.F. 2008).
United States v. Miller, No. 07-5004/AF
In my view, each of these conclusions is erroneous based on
the following facts and analysis:
First, Air Force Instruction 44-120 states at the top in
bold type: “BY ORDER OF THE SECRETARY OF THE AIR FORCE.”
Dep’t of the Air Force, Instr. 44-120, Drug Abuse Testing
Program at 1 (July 1, 2000) [hereinafter AFI 44-120]. It
also states: “COMPLIANCE WITH THIS PUBLICATION IS
MANDATORY.” Further, the instruction directs commanders to
ensure that drug abuse testing programs aboard their
installations are conducted in accordance with all
applicable higher headquarters guidance. Id. para,
4.7.1.1. It also directs that random inspections “should
be the predominate type of test used.” Id. para. 4.7.1.2.
In essence, the instruction assigns overall responsibility
for drug program implementation to installation commanders.
Second, AFI 44-120 directs that the Reserve Medical Unit
Commander (in the case of a reserve base) shall serve as
the office of primary responsibility for installation drug
testing programs. Id. para. 4.7.2.
Third, the publicly accessible website for Westover Air
Reserve Base lists Brigadier General (Brig Gen) Wallace W.
Farris Jr. as “commander of the Air Force Reserve Command’s
439th Airlift Wing, Westover Air Reserve Base, Mass.”
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United States v. Miller, No. 07-5004/AF
Westover Air Reserve Base, http://www.westover.afrc.af.mil
(last visited Apr. 4, 2008). Brig Gen Farris is the most
senior officer listed and there is no other officer listed
as the base commander.
Fourth, the record includes a copy of Aerospace Medicine
Squadron Operating Instruction 44-104 promulgated on
January 4, 2005, “BY ORDER OF THE COMMANDER 439th AEROSPACE
MEDICINE SQUADRON.” Dep’t of the Air Force, Aerospace
Medicine Operating Instr. 44-104, Drug Abuse Testing
Program at 1 (Jan. 4, 2005) [hereinafter AMDS Operating
Instruction]. According to the website, the 439th
Aerospace Medicine Squadron is a subordinate command under
the 439th Airlift Wing at Westover ARB. The second
sentence of the AMDS Operating Instruction states that it
“directs the 439th Aerospace Medicines Squadron’s
responsibilities in the Drug Demand Reduction Control
Program at Westover ARB, MA.” Id. (emphasis added). The
defense did not contend at trial, and the military judge
did not find, that the AMDS Operating Instruction was
invalid, or that Appellee was not subject to the
instruction. On the contrary, both parties and the
military judge proceeded on the basis that the program was
in existence and that Appellee was subject to it.
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Finally, this directive states that “Once selected and
notified for testing, only [the] 439th Airlift Wing
Commander can release an individual from testing.” Id.para 4.2.
Based on the foregoing, the medical squadron generated
Appellee’s name through random selection and conveyed his name
to Major (Maj) Ryan for notification. Thus, Appellee was
directed to undergo random urinalysis based on the authority of
the installation commander, Brig Gen Farris, pursuant to the
Secretary of the Air Force’s directive. Brig Gen Farris
exercised his command authority through the Aerospace Medicine
Squadron, as provided in the AFI 144-120.
Notwithstanding the existence of these two directives, the
majority leaves one to conclude that: (1) Brig Gen Farris
ignored the secretary’s directive to establish a urinalysis
program, (2) the Aerospace Medicine Squadron commander
purportedly acted with the authority of the installation
commander without having in fact received authority from the
installation commander to do so, and/or (3) individuals selected
for testing could obtain permission from the wing commander for
exemption from a urinalysis program that, according to the
majority, was never authorized by him in the first place. A
more precise record might indicate exactly when, where, and how
the installation commander, or his predecessors, ordered
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implementation of the base urinalysis program. Nonetheless,
this record conclusively indicates that the program at Westover,
ARB, was conducted as an incident of command.
As a result, any legal issues surrounding Maj Ryan’s
authority to issue an order are not relevant.1 As indicated
during his testimony, Maj Ryan was performing a ministerial
function in communicating to Appellee his selection for random
urinalysis pursuant to the base testing program.2 Thus, as the
Government has noted, the real issue is not whether the order
signed by Maj Ryan was lawful, but rather, whether the
urinalysis inspection was administered properly as an incident
of command in accordance with M.R.E. 313. The short answer is
yes; it was conducted as an incident of Brig Gen Farris’s
command in accordance with the requirements set forth by the
Secretary of the Air Force.
As a separate matter, I think it important for this Court
to distinguish its analysis from that used at trial. The
military judge’s analysis is erroneous as applied to M.R.E. 313.
1
It might be a different matter had Appellee been charged with
violating Maj Ryan’s order, but here the only matter in issue
was the procedure used to seize Appellee’s urine.
2
Maj Ryan himself testified that he was not issuing an order at
the time he directed Appellee to report for a urinalysis,
instead he was performing the ministerial function of
notification incident to the installation commander’s directive
that Appellee submit to a urinalysis.
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The military judge erred by focusing on the authority to issue a
punitive order under Article 92, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 892 (2000). There is no requirement
under M.R.E. 313 that an individual be notified of his/her
selection to participate in an inspection through a punitive
order under Article 92, UCMJ. If the service chooses to enhance
its management of the urinalysis program by requiring issuance
of a punitive and enforceable order, that is a matter of
internal management. A regulation providing for communication
of selection through a punitive order, although permissible, is
not required. Such a regulation is for the benefit of the
service, not the individual, and does not create an individual
right to exclude evidence under M.R.E. 313. See United States
v. Caceres, 440 U.S. 741, 752-53 (1979). The critical question
is whether such an inspection is conducted as an incident of
command consistent with M.R.E. 313.
Further, the analysis is problematic to the extent it is
viewed as applying to lawful orders generally. Quoting an Air
Force Instruction and an Air Force Court of Criminal Appeals
case, the military judge concluded:
For an “inspection order” or order to submit to a random
urinalysis to be lawful there must be, inter alia, a unity
of status between the commander who issues the order and
the subordinate who receives the order. “Commanders must
have unity of status with their troops to fully enforce
their orders. Conversely, before exposing a member who is
subjected to the UCMJ to disciplinary action for an offense
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United States v. Miller, No. 07-5004/AF
based on a commander’s order, it is evident that both the
member and the commander must be subject to the UCMJ.”
. . . .
“Although they may hold supervisory positions and provide
work direction, civilians cannot command Air Force units. .
. .”
Emphasis and citations omitted. Based on these factors the
military judge further concluded that Maj Ryan “was not on
active duty, was not subjected to the UCMJ and thus did not have
unity of status with the Accused . . . As such . . . Major
[Ryan’s] 12 September 2006 written order to the Accused to
provide a urine sample was unlawful.”
The concepts of “unity of status,” jurisdiction under the
UCMJ, and “command” may be helpful in determining whether an
action is taken as an “incident of command.”3 Certainly, if an
inspection is not conducted as an incident of command (or is not
otherwise authorized), then an order to submit to such an
inspection would not be lawful. These factors may also be
helpful in determining whether to prosecute under Article 92,
UCMJ. However, these factors are not generally determinative as
to whether an order is “lawful” when this term is used in a more
common vernacular as opposed to its meaning under Article 92,
3
I say “may,” because the nomenclature seems to be drafted for
lawyers by lawyers, rather than for those personnel who most
need to understand the concept of lawful command, the officers
who exercise it and the airmen who are subject to it.
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UCMJ. For sure, Maj/Mr. Ryan could not have issued a lawful
order while acting in his civilian capacity. However, the
President, Secretary of Defense, and Secretary of the Air Force
most certainly can issue “lawful” orders to military personnel,
notwithstanding the absence of any unity of status with the
military personnel over whom they exercise constitutional and
statutory command, in the case of the President and the
Secretary of Defense,4 or administrative control, in the case of
the Secretary of the Air Force. Recall that AFI 44-120, at
issue in this case, was transmitted in the form of an “ORDER”
from the Secretary of the Air Force.
Reliance on the factors enunciated by the military judge to
determine whether an order is lawful might also place in doubt
the status of many general, or standing orders, if applied
literally and not otherwise limited to questions involving
M.R.E. 313. Consider, for instance, the case of a commanding
general’s standing orders that remain in effect after the
general leaves command and thus, loses “unity of status” with
the members of that command.
4
“Unless otherwise directed by the President, the chain of
command to a unified or specified combatant command runs –-
(1) from the President to the Secretary of Defense; and
(2) from the Secretary of Defense to the commander of the
combatant command.”
10 U.S.C. § 162(b) (2000).
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