United States v. Bickel

27 M.J. 638, 1988 CMR LEXIS 777, 1988 WL 120722
CourtU.S. Army Court of Military Review
DecidedNovember 4, 1988
DocketACMR 8800197
StatusPublished
Cited by3 cases

This text of 27 M.J. 638 (United States v. Bickel) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bickel, 27 M.J. 638, 1988 CMR LEXIS 777, 1988 WL 120722 (usarmymilrev 1988).

Opinions

OPINION OF THE COURT

ADAMKEWICZ, Senior Judge:

Appellant was convicted of wrongful use of marijuana and absence without leave in violation of Articles 112a and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 886, respectively [hereinafter UCMJ]. Appellant was sentenced to a bad-conduct discharge, confinement for four months, and forfeiture of $438.00 pay per month for four months. The convening authority approved the sentence.

On 10 June 1987 appellant submitted a urine sample which tested positive for marijuana. Appellant’s company commander received the test results on 17 July. On 21 [640]*640July, appellant rendered a second urine sample along with 27 other soldiers who were randomly selected to participate in the test. Appellant’s second urinalysis was directed by the company commander pursuant to that commander’s policy letter which required all soldiers who test positive for controlled substances to submit to a second urinalysis during the following month’s urinalysis testing (Appendix).1 After the second urinalysis, the commander received information regarding appellant’s appearance and duty performance which led him to suspect that appellant would fail the test again. Appellant’s second urine sample which tested positive for marijuana is the basis for the wrongful use of marijuana conviction (Charge I and its Specification).

Appellant asserts that the military judge erred by failing to grant appellant’s motion to suppress evidence of the second urinalysis test. In his brief before this court, appellant recognizes the legitimate concerns of commanders in pursuing a drug test screening program to assure unit readiness and fitness for duty, but argues that “the use of test results should be limited, consistent with the goals of the Military Rules of Evidence and Army Regulation, so as to safeguard the constitutionally protected right of the soldier to be free from unreasonable and individualized searches and seizures which are based on less than probable cause.” He argues that the second urinalysis conducted pursuant to the commander’s policy did not qualify as an inspection under Manual for Courts-Martial, United States, 1984, MiLR.Evid. 313(b)2 and was precluded as evidence at a court-martial under the limited use policy in Army Regulation 600-85, Personnel-General: Alcohol and Drug Abuse Regulation (3 November 1986) [hereinafter AR 600-85].3

At trial, the military judge found that although the second urinalysis was not based on probable cause, it was the commander’s intention to comply with his guidelines set out in a policy letter regarding retesting of individuals who tested positive for controlled substances the previous month. The policy letter was issued by the commander because he was concerned that his unit would be affected by substance abuse. The military judge also concluded that regardless of the fact that the commander, in the first paragraph of the policy letter, had expressed an intent to punish [641]*641soldiers who used controlled substances, the overall “tenor [of the policy letter] establishes that [the commander's] primary concern was the health, welfare, and morale of his unit.” The judge found that although the commander’s purpose for the rescreening was consistent with both an inspection and fitness for duty rationale, the commander’s primary purpose was to ensure the readiness of his unit and was not intended to be used to gather evidence for disciplinary or other adverse action. The judge further found that the rescreening policy was implemented as a result of the commander’s concern for the “safety of his troops” and the detrimental effect of drug abuse on appellant as well as the other soldiers in the unit. The military judge concluded that the rescreening procedures in this case were not based on a policy of predetermined reasonable suspicion to test a soldier’s fitness for duty nor an individualized suspicion which would have precluded the use of the test results for disciplinary purposes under the “limited use policy” in AR 600-85. See AR 600-85, paras. 6-4 and 10-3a (1), and Table 6-1, p. 43. His findings are supported by the record and adopted by us.

The Supreme Court has repeatedly held that the purpose of the Fourth Amendment’s proscription of unreasonable searches and seizures is “to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). The standard test of “reasonableness” imposed by the Fourth Amendment upon the exercise of discretion by government officials, Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979), “is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979).

The Court of Military Appeals did such balancing of the factors involved when it held in Murray v. Haldeman, 16 M.J. 74 (C.M.A.1983), that the Armed Forces’ compulsory urinalysis program constituted a reasonable “seizure” and thereby did not violate a servicemember’s Fourth Amendment protection from unreasonable searches and seizures. See United States v. Middleton, 10 M.J. 123 (C.M.A.1981). Likewise, in our balancing of the importance of the substantial military and national interest served by urinalysis examination, the degree to which urinalysis testing serves that interest, and the diminished expectation of privacy in military life, we are satisfied that the local drug retesting program under scrutiny qualifies as a reasonable search and seizure under the Fourth Amendment. Neither probable cause, Committee for GI Rights v. Callaway, 518 F.2d 466, 476-77 (D.C.Cir.1975); United States v. Valenzuela, 24 M.J. 934 (A.C.M.R.1987), nor any quantum of individualized suspicion is required. United States v. Martinez-Fuerte, 428 U.S. 543, 560-62, 96 S.Ct. 3074, 3084-85, 49 L.Ed.2d 1116 (1976). See also Delaware v. Prouse, 440 U.S. at 654-55, 99 S.Ct. at 1396-97 (in some situations, the balance of interests precludes the requirement of some quantum of individualized suspicion as a prerequisite to a constitutional search or seizure).4

The commander’s decision to conduct retesting of all soldiers who tested positive for controlled substances on the previous month’s test is not unreasonable when balanced against the need to protect the unit’s health and fitness. Murray v. Haldemen, 16 M.J. at 80-82; United States v. Valenzuela, 24 M.J. 934 (A.C.M.R.1987).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Bickel
30 M.J. 277 (United States Court of Military Appeals, 1990)
United States v. Moeller
30 M.J. 676 (U S Air Force Court of Military Review, 1990)
United States v. Williams
27 M.J. 710 (U.S. Army Court of Military Review, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
27 M.J. 638, 1988 CMR LEXIS 777, 1988 WL 120722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bickel-usarmymilrev-1988.