United States v. Mitchell

15 M.J. 937, 1983 CMR LEXIS 942
Procedural entryThis page is a short order in United States v. Mitchell. Read the opinion of the Court — 15 M.J. 654
U.S. Navy-Marine Corps Court of Military Review·Decided March 28, 1983·No. Miscellaneous Docket No. 82-17·Published

Opinions

OPINION

PER CURIAM:

This case arrives before us as a result of a Government petition for an extraordinary-writ.

The factual circumstances of the case as extracted from a partially summarized and partially verbatim record are as follows:

FACTUAL BACKGROUND

A command urinalysis examination ordered by the commanding officer was initiated on 16 August 1983 at Fleet ASW Training Center, Atlantic, Norfolk, Virginia. This was the third of three random examinations conducted during the period July-August 1982. The inspection was conducted pursuant to the commanding officer’s determination that such an inspection was warranted in relation to the unit’s fitness and readiness for duty.

The procedure utilized involved a random selection method utilizing the last digit of the individual’s social security number. The number selected for the 16 August inspection was “6”. The standard procedure involved requiring all personnel in the command whose social security number ended in “6” to report for the urinalysis examination unless an individual was unavailable. If unavailable on the day of the inspection, the individual was required to report for the examination when next available.

The accused in this case, Petty Officer Flint, whose social security number ends in “6”, was on liberty on 16 August and was apparently contacted and directed to return to the command on 17 August in order to provide a urine sample. Upon arrival at the command, she was met by a member of the Master-at-Arms force and escorted to a female head and directed to provide a urine sample. In response to her contention that she was physically not able to produce a urine sample at that time, she was escorted to the unit library, directed to remain in the library and consume normal fluids until such time as she provided the urine sample. She subsequently provided a urine sample. (We cannot ascertain from the evidence in the record whether the accused actually consumed any fluids prior to providing the sample or the length of time involved. For purposes of our decision, however, we assume that she was able to provide a urine sample following the consumption of water or other normal fluids such as coffee or soft drinks.)

The test results obtained by the government following the receipt of the sample was the basis of a subsequent charge of wrongful use of marijuana in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892.

DISCUSSION

At a 39(a), 10 U.S.C. § 899(a) session, the military judge granted a defense motion to suppress the test results, making the following findings:

MJ: As to the defense various motions, first, the court does find that jurisdiction does exist for the court to consider these issues in this case. Second, there is one issue that the court intends to rule on today which will make it unnecessary to rule on the remaining issues, specifically, that this particular urinalysis test was not a valid inspection pursuant to Rule 313(b). The Court does find as facts that there had been a previously scheduled random inspection of approximately ten percent of the staff of Fleet ASW Training Center; that the inspection was scheduled for the 16th and the accused was at work that evening and therefore missed the examination, and was recalled from liberty on the 17th for the purpose of giving a urine specimen; and that on the morning when she appeared on the 17th she was unable, when requested, to provide a specimen, and was then escort[939]*939ed to the library directed to remain and consume fluids until such time as she could urinate and provide the necessary specimen. Assuming, without deciding in this particular case, that overall urinalysis is a suitable subject for an inspection under 313, and that all the other preliminary requirements of 313 are met in this case, the court does feel that 313(a) does require that the inspections of 313 — the evidence produced by inspections in rule 313 are admissible and relevant when not otherwise inadmissible under the rules; thereby indicating that Rule 313 must be read in conformity with the Rules of Evidence; and further, that in 313(b) it is specifically referred that 313(b) must comply with the provisions of 312 where applicable. In this particular instance, section 312(e) provides “That the compelling of a person to ingest substances for the purpose of locating property described above ...” reading, “weapons, contraband, or evidence of crime”, “... or to compel the bodily elimination of such property, is a search within the meaning of this section”, and that under this particular Rule, such a search may be made only upon warrant or authorization under Rule 315, conducted in a reasonable fashion, and with appropriate medical personnel where necessary. In this particular instance, the compelling of the accused to ingest fluid for the purpose of eliminating her urine, that is, producing a specimen, takes this case out of 313 and puts it into 312. In-as-much as there was no search warrant or authorization issued under Rule 315, the evidence received or discovered as a result of the urinalysis is not admissible at court-martial. Do both counsel understand the ruling of the court?

That ruling precipitated a Government petition for an extraordinary writ in the form of mandamus to this Court.

On 26 January 1983, this panel denied the Government’s request for the issuance of a writ of mandamus to the trial judge. See United States v. Mitchell, 15 M.J. 654 (N.M. C.M.R.1983).

We believe that the clear majority of the panel found the legal reasoning of the trial judge to be wrong. However, since the granting of an extraordinary writ is discretionary, it was denied in that instance because it was not necessary since there was an alternative method of allowing the trial judge to reconsider his decision and legal conclusions after receiving the benefit of our opinions concerning his legal interpretation. See United States v. Mitchell, (Cassel, J., concurring). See also Mitchell, (May, J., dissenting).

The convening authority then returned the record for reconsideration in light of our decision and opinions, which the military judge purported to do. The military judge went on to make findings of fact which have no apparent basis in the record and which tended to support his prior determination that the results of the urinalysis would be inadmissible. Upon reconsideration he issued, in pertinent part, the following ruling:

... that the urine sample was taken from Petty Office Flint while she was in the status of arrest, Manual for Courts-Martial, Paragraph 18(a);
Next, Petty Officer Flint was ordered, i.e. compelled, to ingest fluids until she could produce a urine sample, and had she refused to do so, she might very well have been subject to disciplinary action for willful disobedience of an order;
Next, it appears to this court that the facts of this case do fall squarely within the plain language of the Military Rule of Evidence 312(e);
Next, a compelled ingestion as described in Military Rule of Evidence 312(e) is one different from and less intrusive than the nonconsensual acts also described in 312(e) and (d).

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United States v. Mitchell, 15 M.J. 937, 1983 CMR LEXIS 942 (usnmcmilrev 1983).

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