United States v. Murphy

28 M.J. 758, 1989 WL 43497
CourtU S Air Force Court of Military Review
DecidedApril 28, 1989
DocketACM 27299
StatusPublished
Cited by2 cases

This text of 28 M.J. 758 (United States v. Murphy) 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. Murphy, 28 M.J. 758, 1989 WL 43497 (usafctmilrev 1989).

Opinion

DECISION

PRATT, Judge:

Contrary to his plea, appellant was found guilty of wrongful use of cocaine by a general court-martial composed of members. His sentence consists of a bad conduct discharge, confinement for two months, total forfeitures, and reduction to airman basic.

I

The charge against appellant stemmed from a urinalysis inspection of his unit which resulted in the discovery of the principal cocaine metabolite in the urine sample provided by appellant. At trial, appellant challenged the admissibility of these results on the grounds that the inspection did not conform to the requirements of M.R.E. 313(b). Specifically, appellant contended that his commander, in directing the inspection, did not do so for any of the “primary purposes” articulated in M.R.E. 313(b). The military judge denied the motion to suppress, and the appellant now raises this issue on appeal.

We hold that the military judge was correct in denying the defense motion to suppress. This issue, one of first impression, merits discussion.

In pertinent part, M.R.E. 313(b) provides: An “inspection” is an examination of the whole or part of a unit ... 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____ An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inspection within the meaning of this rule. (Emphasis added).

In support of his motion to suppress at trial, the appellant relied on the candid testimony of his unit commander, Captain Witt. Captain Witt explained that, a few days prior to the testing, he received a call from a Social Actions counselor. The counselor, noting that it had been two years since Captain Witt’s unit had participated in the urinalysis program, asked if Captain Witt would like to test his people and thereby “help and support the Air Division’s overall goal.” Captain Witt readily agreed to inspect his unit, seeing this as “just another opportunity of, you know, doing our part” in support of the Air Division.

The trial defense counsel pointedly elicited testimony from Captain Witt which reflected that, although he was aware of the purpose of the urinalysis program, his thought process did not involve the concerns delineated in M.R.E. 313(b):

Q. At the time you agreed with [the Social Actions counselor], none of these thoughts about readiness or the fitness of the unit went through your mind?
A. Right. Absolutely not.
Q. It was just a square filling exercise?
[761]*761A. Right.
Q. So your primary purpose on the 3rd of March was not to determine the readiness, fitness for duty of the people in your unit, right?
A. My decision at the time was based on supporting the Air Division, and if that meant going through with the procedure and filling the square for another two years, yes, that’s right. That was my motive.
Q. That was your sole motive then? You didn’t say, “Gee, I’ve got to do a health and welfare inspection of my troops to make sure these guys are free of drugs”, right?
A. No. No.

As noted above, this situation presents a novel issue. Appellant does not assert that the inspection in issue was a subterfuge search, that it was one in which the “clear and convincing” standard of M.R.E. 313(b) was applicable, see United States v. Parker, 27 M.J. 522 (A.F.C.M.R.1988), that the inspection was conducted in an “unreasonable, degrading, improper, or illegal manner,” see United States v. Valenzuela, 24 M.J. 934 (A.C.M.R.1987), or that the degree of intrusion was unreasonably related in scope to insure readiness, see United States v. Middleton, 10 M.J. 123 (C.M.A. 1981). Nor does he raise an issue of constitutionality with regard to inspections per se, acknowledging that inspections conducted pursuant to M.R.E. 313(b) have passed constitutional muster. See New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987); United States v. Flowers, 26 M.J. 463 (C.M.A.1988); United States v. Middleton, supra.

Instead, appellant asserts that this particular inspection was “unconstitutional” because his commander did not possess a “primary purpose” cited in M.R.E. 313(b).

In our opinion, a distinction must be made between the underlying “primary purpose” of an examination and what we will call the “immediate motive” of the commander in directing it. In other words, a commander may have any variety of “immediate motives” for directing an examination of his unit without running afoul of the “primary purpose” language of M.R.E. 313(b). For instance, a commander’s “immediate motive” may be to support his superior, to comply with a regulatory requirement, to demonstrate for a successor the method of operation, to test unit inspection procedures, to meet a recommended testing quota, or simply to exercise his inherent authority to inspect.1 These “immediate motives” are not inconsistent with the coexistence of a proper underlying “primary purpose”, i.e., to insure security, military fitness, or good order and discipline.

On the other hand, when a commander’s “immediate motive” is to catch Airman X with contraband, to seize drugs reportedly seen in Airman Y’s room, or to generate a few courts-martial for deterrence purposes, such motives are inconsistent with and “infect” the primary purpose of the examination, rendering it a search. Indeed, it is exactly this “infection” which M.R.E. 313(b) seeks to expose and decry. As the Army Court of Military Review has stated, quite correctly we believe, in reference to M.R.E. 313, “the evil to which the evidentiary rule is directed is an examination conducted for the primary purpose of securing evidence for use in disciplinary proceedings.” United States v. Rodriguez, 23 M.J. 896 (A.C.M.R.1987).

When read in this context, we discern that the “primary purpose” language of M.R.E. 313(b) is not intended to limit, or create a standard for testing, the “immediate motives” of commanders in the discretionary exercise of their inherent authority to inspect. Rather, it is definitional language designed to establish a basis for distinguishing a legitimate inspection from one which constitutes a subterfuge search.

[762]*762Accordingly, when a commander directs a random urinalysis inspection of his unit, or of a portion thereof, it is wholly appropriate that the circumstances surrounding his decision to inspect be closely examined in order to insure that the primary purpose of the inspection is not the development of evidence for use in prosecution or other disciplinary proceeding, i.e., a search. Having satisfied that query, however, it is neither appropriate nor necessary to question his “immediate motives” for directing the inspection.

Translated into the terms of our analysis, the appellant’s concern is that his commander, by his own testimony, specifically disclaimed the underlying “primary purpose” which would have qualified the examination as an inspection under M.R.E. 313(b). We disagree.

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Cite This Page — Counsel Stack

Bluebook (online)
28 M.J. 758, 1989 WL 43497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-murphy-usafctmilrev-1989.