United States v. Evans

37 M.J. 867, 1993 CMR LEXIS 279, 1993 WL 254906
CourtU S Air Force Court of Military Review
DecidedJune 25, 1993
DocketACM 29747
StatusPublished
Cited by4 cases

This text of 37 M.J. 867 (United States v. Evans) is published on Counsel Stack Legal Research, covering U S Air Force 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. Evans, 37 M.J. 867, 1993 CMR LEXIS 279, 1993 WL 254906 (usafctmilrev 1993).

Opinion

OPINION OF THE COURT

SNYDER, Judge:

Appellant was convicted by general court-martial of wrongfully using cocaine, in violation of Article 112a, UCMJ 10 U.S.C. § 912a. He was sentenced to a bad-conduct discharge, forfeiture of all pay and allowances, and reduction to E-l. The convening authority approved the sentence as adjudged. Appellant asserts four assignments of error. Although none of them have merit, some comment is appropriate.

Three of the four assignments of error relate to the trial judge’s denial of a motion to suppress the results of a urinalysis inspection, which resulted in appellant’s trial. We first address his assertion that the motion should have been granted because the commanders who ordered the inspection were without authority to do so.

I

A motion to suppress is an interlocutory matter addressed to the discretion of the trial judge, and we apply an abuse of discretion standard in reviewing his ruling. Rhea v. Starr, 26 M.J. 683 (A.F.C.M.R. 1988). Further, the trial judge made extensive findings of fact. Where those findings are supported by the record, we fully accept them, unless clearly erroneous. United States v. Burris, 21 M.J. 140 (C.M.A. 1985). In the instant case, we find the trial judge’s factual findings and conclusions fully supported by the evidence of record.

Appellant is a reservist. His reserve squadron was one of five reserve squadrons called to active duty and assigned to the 46th Aerial Port Squadron (46th APS) at Dover AFB, Delaware, to support Operations Desert Shield/Desert Storm. This influx of personnel doubled the manning of the 46th APS to approximately 1000. Although the five units had effectively blended into the 46th APS in the de facto sense, their reserve parent unit retained “administrative control” of these units. The 46th APS took operational control,1 however, and there was no doubt as [869]*869to whom they answered and who was the functional commander. Appellant avers that because this “administrative control” was retained by the parent reserve entity, the active duty commander had no authority to order appellant to participate in the inspection in question. Appellant misconstrues the essence of command authority.

Colonel F, the 46th APS commander, testified that, when the reserve squadrons reported, they “understood that it was impossible for them to retain their command and effectively they took their squadron flags down and for all practical purposes handed those flags to me.” Although the reserve commanders remained commanders in all respects on paper,2 these squadrons did not retain integral unit integrity. The members of the five reserve units were interspersed throughout the 46th APS, and the respective reserve unit commanders were made officers in charge of various 46th APS sections, with the senior one becoming Colonel F’s operations officer. The 46th APS was functioning under these circumstances when Colonel F directed the urinalysis inspection in question.

To enjoy the cloak of propriety, an inspection must be conducted as an incident of command. Mil.R.Evid. 313(b). It necessarily follows that an inspection must be directed or ordered by an appropriate commander. See United States v. Brown, 35 M.J. 877 (A.F.C.M.R.1992). The trial judge correctly ruled that, the reserve entity’s retention of “administrative control” notwithstanding, Colonel F exercised functional command over all of the reservists attached to the 46th APS, as well as its regular personnel. Colonel F was the person who functioned and was recognized as the commander of everyone in the 46th APS. As such, he possessed the requisite authority to direct a urinalysis inspection. See United States v. Jette, 25 M.J. 16 (C.M.A.1987); United States v. Kalscheuer, 11 M.J. 373 (C.M.A.1981).

Appellant also argues, however, that, even if the inspection was directed by the appropriate commander at its inception, it was improperly expanded to include him by a commander without authority to do so. Again, we disagree. Some additional facts are necessary to fully appreciate appellant’s assertion.

Colonel F directed an urinalysis inspection of the entire 46th APS. The supporting staff agency, however, advised him there were insufficient laboratory testing quotas available to inspect 1000 personnel, and they could accommodate only about 200 or so. As a result of his concern for the ability of the 46th APS to perform its mission safely, Colonel F designated daily operation of, or working around, heavy equipment and working in close proximity to aircraft as the main criteria for determining what part of the unit would be inspected to the extent of the available test quotas. Ramp and Fleet Services fit those criteria, as well as containing a sufficient number of personnel to exhaust the test quotas. He named those sections and delegated the execution of the inspection to his squadron section commander, Captain SP, and his first sergeant, giving them authority to do whatever was necessary to execute it properly.

[870]*870During the inspection of Ramp and Fleet, Staff Sergeant T presented himself for inspection and duly provided a urine sample. Those administering the inspection honestly believed Sergeant T to be assigned to Ramp, as he once was. After he provided his sample and departed, it was learned he actually was assigned to Pallet Control, a new section formed solely for the massive increase in activity due to Desert Storm. Pallet Control was formed by pulling personnel from other sections of the squadron to perform a specific function. Because they had inspected a member of a section outside Ramp and Fleet, Captain SP and the first sergeant believed the integrity of the inspection was in jeopardy if they did not also include the remainder of Pallet Control in the inspection. It was obvious from their testimony that they were concerned with not treating any personnel differently from those who were inspected. See Mil.R.Evid. 313(b).

Captain SP testified that first, Colonel F actually desired the entire squadron inspected; second, Pallet Control fit the criteria of operating heavy equipment and working in close proximity to aircraft; third, she had to decide immediately or lose the ability to inspect personnel who were finishing the night shift; and fourth, she believed she had Colonel F’s authority to include Pallet Control to protect the integrity of the inspection. The supporting staff agency agreed to support testing the additional personnel to preserve the overall integrity of the inspection. Needless to say, appellant was assigned to Pallet Control.

An inspection may examine the whole or any part of a unit or organization. Mil. R.Evid. 313(b). We agree with the trial judge’s ruling that this was not an impermissible expansion of the inspection beyond the scope of Colonel F’s authorization. First, neither Captain SP nor anyone else suspected appellant or other persons of illicit drug use. She acted in good faith to comply with what she believed were the rules for a legitimate inspection. Second, Colonel F did not actually exclude any part of the squadron, but, instead, prioritized sections to best utilize the available testing quotas. Further, we agree with the trial judge’s findings and conclusion that Captain SP, as squadron section commander of the 46th APS, inherently possessed the requisite authority to order the inspection of the Pallet Control section.

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Cite This Page — Counsel Stack

Bluebook (online)
37 M.J. 867, 1993 CMR LEXIS 279, 1993 WL 254906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-evans-usafctmilrev-1993.