United States v. Bair

32 M.J. 404, 1991 CMA LEXIS 476, 1991 WL 106310
CourtUnited States Court of Military Appeals
DecidedJune 21, 1991
DocketNo. 64,124; ACM 27605
StatusPublished
Cited by2 cases

This text of 32 M.J. 404 (United States v. Bair) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bair, 32 M.J. 404, 1991 CMA LEXIS 476, 1991 WL 106310 (cma 1991).

Opinions

Opinion of the Court

EVERETT, Senior Judge:

Pursuant to conditional pleas of guilty, see RCM 910(a)(2), Manual for Courts-Martial, United States, 1984, a military judge sitting as a general court-martial convicted Technical Sergeant Bair of willfully disobeying a lawful order to submit a sample of his urine and of soliciting another to violate the same lawful order by providing appellant a sample that he could use in lieu of his own. See Arts. 90 and 134, Uniform Code of Military Justice, 10 USC §§ 890 and 934, respectively. Thereafter, the military judge sentenced appellant to a bad-conduct discharge, confinement for 9 months, and reduction to the lowest enlisted grade. The convening authority approved the sentence, and the Court of Military Review affirmed. 29 MJ 862 (1989).

On appellant’s petition, we agreed to decide whether his commander — who acted on the basis of “an anonymous, unsubstantiated tip” — had the requisite “reasonable suspicion” under paragraph 5-8, Air Force Regulation (AFR) 30-2, to lawfully order that Bair submit a urine sample for testing. We decide that he did.

[405]*405I

The facts surrounding the offenses are fully set out in the opinion of the Court of Military Review in this case. 29 MJ at 863. For purposes of this appeal, we need focus only on the facts that led appellant’s commander, Lieutenant Colonel Kind (then a major), to give the order.

Prior to entering his pleas, appellant made “a motion to dismiss or a motion for appropriate relief in that it is our contention that the order given in Charge I and relied on as the basis of Charge II was not a valid, lawful order....” Before presenting any testimonial evidence, appellant offered as an appellate exhibit “a copy of AFR 30-2 that was in effect ... at the time of the request for the commander directed urinalysis in this case — since it has changed since then.”

The only evidence offered by either side on the motion was Kind’s testimony. That testimony was clear and commendably candid; and it well sets up the legal issues that now are before this Court.

Under direct examination by defense counsel, Kind described what led to his order:
A. ... My first sergeant got a phone call from who I believe was the LE desk, the law enforcement desk. What it entailed was that they had received an anonymous phone call implicating Sergeant Bair and another individual in the squadron saying that they had used marijuana, or that they had been seen using marijuana. The real specifics ... I’m not ...
Q. You’re not familiar with the specifics? Okay, then you were told this information by Chief Ivey, the First Sergeant?
A. Yes, correct.
Q. What was your reaction to that information?
A. I was fairly shocked. I didn’t expect it.
Q. You didn’t expect it, did you believe the information?
A. Well, I was hoping it wasn’t true. I guess the fact that I just alluded to, Sergeant Bair was what I considered one of my best troops — I was certainly hoping it wasn’t true. I found it very difficult to believe.
Q. When you got that information, what did you decide to do with that information?
A. The First Sergeant and I discussed it and we decided that since ours was a flightline organization, that we had to insure that there was no illegal drug use. Since my policy on the flightline had been that there would be no illegal drug abuse accepted since it’s incompatible with good aircraft maintenance, we elected to do a commander directed urinalysis.
Q. I understand that. What was your reason for ordering Sergeant Bair to do this urinalysis?
A. The reason was the anonymous phone call. There was a shadow of a doubt.

Any ambiguity about what Kind was referring to when he mentioned that the anonymous phone call had caused “a shadow of a doubt” was clarified somewhat later in defense counsel’s direct examination:

Q. That was my next question. In situations where this issue had come up, someone you knew and you thought was outstanding before, that the reason for giving a urinalysis was a chance for them to clear the issue once and for all.
A. Well, that and to eliminate any question of doubt. I would have to say that if I get an anonymous phone call on my First Sergeant, I’d do a commander directed urinalysis on him too — under the old rules.
Q. Excuse me, I didn’t understand that?
A. Well, if I got an anonymous phone call on anybody, even as trusting as my First Sergeant, I would think I would do the same thing.

Subsequently, defense counsel sought to explore Kind’s reasoning process in light of the applicable legal standard of “reasonable suspicion”:

[406]*406Q. Since I talked to you on Friday afternoon, have you had an opportunity to talk with Captain Coakley [assistant trial counsel] or Captain Probaseo [trial counsel]?
A. Captain Coakley.
Q. And did Captain Coakley explain to you what you would be testifying about today?
A. Just that ... ah ... well, I think so.
Q. Did he explain to you the issue of reasonable suspicion?
A. Ahh ... yes.
Q. What was his definition of reasonable suspicion?
A. He did not give one.
Q. Do you feel, using the words “reasonable suspicion” that you had a reasonable suspicion?
A. I think I did.
Q. That Sergeant Bair was using drugs at the time?
A. I think there was reasonable doubt.
Q. Reasonable doubt?
A. Maybe that’s the word I would use. Reasonable doubt.

Subsequent examination of Colonel Kind by defense counsel, assistant trial counsel, and the military judge expanded somewhat Kind’s testimony as to the anonymous tip, as to what other information Kind had had available, and as to what his response had been to the situation.

As to the tip: The anonymous tip had been from a female caller who had stated that Bair and Senior Airman Parker, another member of the same squadron, had used marijuana sometime recently — Kind believed but was not sure that the reported use had been the previous weekend. The tip contained no other details.

As to any other information available to Kind: He believed appellant was an “outstanding troop” and noncommissioned officer and had no reason, other than the tip, to believe Bair would use marijuana. Similarly, Kind knew Parker and had no reason —again, other than the tip — to believe that Parker used marijuana.

As to why he ordered the urinalysis: In light of Kind’s paramount concern with flightline safety, any anonymous tip of this sort — even one involving a trustworthy subordinate — would cause “doubt” that would necessitate his ordering a commander-directed urinalysis.

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Bluebook (online)
32 M.J. 404, 1991 CMA LEXIS 476, 1991 WL 106310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bair-cma-1991.