United States v. Taylor

41 M.J. 168, 1994 CMA LEXIS 132, 1994 WL 667174

• Court: United States Court of Military Appeals
• Decided: September 30, 1994
• Docket: Nos. 93-0595; CMR No. 91 0669
• Status: Published

Opinions

Opinion of the Court

CRAWFORD, Judge.

Contrary to his pleas, appellant was convicted of wrongful use of marijuana, in violation of Article 112aj Uniform Code of Military Justice, 10 USC § 912a. The convening authority approved the sentence of a bad-conduct discharge, 45 days’ hard labor without confinement,¹ and reduction to the lowest enlisted grade. The Court of Military Review affirmed the findings and sentence in an unpublished opinion. We granted review on the following issue:

WHETHER APPELLANT’S COMMAND CONDUCTED A SUBTERFUGE SEARCH WHEN SEIZING APPELLANT’S URINE WHICH WAS PURPORTEDLY SEIZED PURSUANT TO AN INSPECTION.

We hold that appellant’s command complied with Mil.R.Evid. 313(b), Manual for Courts-Martial, United States, 1984, and did not conduct a subterfuge search in directing a urinalysis examination which resulted in seizure of appellant’s urine.

FACTS

Appellant was an administrator in the S-l section of the 5th Marine Regiment, 1st Marine Division, Camp Pendelton, California. On December 7, 1989, he had three wisdom teeth removed and was placed on 24r-hours of bed rest. The commissioned officer in charge of the S-l section was Captain (Capt.) Jackson. The Marines of the S-l section fell under the command of Capt. Lindsay, the headquarters company commander of the 5th Marine Regiment.

On the same date that appellant had his teeth pulled, Sergeant (Sgt.) Ramon, the Regimental' Substance Abuse Control Officer (SACO), received an anonymous telephone message on his answering machine that someone in the S-l section had been using drugs.

On the following day, Friday, December 8, 1989, Capt. Lindsay made a decision to order a random urinalysis test the following week. Capt. Lindsay was not aware of the anonymous tip received by Sgt. Ramon. Capt. Lindsay told his executive officer to tell Sgt. Ramon about his decision to order the random urinalysis.

Capt. Lindsay had several responsible and legitimate reasons for ordering a urinalysis inspection. First, Sgt. Ramon, an experienced SACO, was scheduled to separate from the service, and Capt. Lindsay wanted to conduct the inspection prior to his separation. Second, with the Christmas holiday season approaching, Capt. Lindsay wanted to deter use of drugs in his command. And finally, he wanted to comply with Marine Corps directives requiring urinalysis testing.

Capt. Lindsay had only a limited number of vials and had not yet decided how to select the section to be tested. He discussed the options with Sgt. Ramon. Sometime that same day Sgt. Ramon told Capt. Jackson about the anonymous call he had received about drug use by someone in the S-l section.

On Monday, December 11, 1989, Sgt. Ramon told Capt. Jackson that a former member of the S-l section had reported to him that appellant was a drug user. Thereafter, the Court of Military Review found:

Captain Jackson called Captain Lindsay and asked when Captain Lindsay planned on doing urinalysis testing. Captain Lindsay replied, “Well, this week.” Captain Jackson responded, “How do you plan to do it?” After Captain Lindsay replied, “It’s going to be random,” Captain Jackson stated, “Well, what about the S-l section?” Captain Lindsay then said, “Fine, that fits right along, and why not just go ahead and get it out of the way.” (R. 46). During the conversation, Captain Jackson did not tell Captain Lindsay about information he had received from Sergeant Ramon....

Unpub. op. at 2-3.

Capt. Lindsay testified that no one had ever volunteered a section before. With his suspicion perhaps raised, Capt. Lindsay asked Sgt. Ramon, “Is there anything special going on in the S-l shop that I should know about?” Ramon replied to the effect of, “Not at this time.” After this conversation on Monday, December 11, Capt. Lindsay then directed that the SACO conduct a urinalysis sweep of the S-l section the next day.

That same Monday afternoon, appellant’s noncommissioned officer told him to go home because his face was swollen and he was not feeling well. Since his pain persisted, at 8:00 p.m. appellant went to the dental clinic and was given a pain killer and a “no duty” chit which excused him from duty until 8:00 a.m., Wednesday, December 13, 1989.

On Tuesday, December 12, 1989, appellant remained at home based on his excusal from work because of the “no duty” chit. During the early afternoon Sgt. Ramon told Capt. Jackson that he had received another report that appellant had smoked marijuana earlier with a female friend and had requested “Gold Seals,” supposedly a diuretic to conceal drugs in the urine. At approximately 3:00 p.m. Capt. Jackson, not being sure whether appellant had a “no duty” chit, told appellant’s NCOs to have appellant come to work. Appellant did. At this time he was told to provide the urine specimen that formed the basis of his conviction.

DISCUSSION

As we stated in United States v. Lopez, 35 MJ 35, 39 (CMA 1992):

The military, like the Federal and state systems, has hierarchical sources of rights. These sources are the Constitution of the United States; Federal Statutes, including the Uniform Code of Military Justice; Executive Orders containing the Military Rules of Evidence; Department of Defense Directives; service directives; and Federal common law. Unlike the Federal Rules of Evidence, Section III of the Military Rules of Evidence “codifies” the constitutional rules. Normal rules of statutory construction provide that the highest source authority will be paramount, unless a lower source creates rules that are constitutional and provide greater rights for the individual; for example, Mil.R.Evid. 305(e) as to notice to counsel, or Article 31, UCMJ, 10 USC § 831, requiring warnings to suspects not in custody.

The paramount source is the U.S. Constitution. The Fourth Amendment to the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The next applicable source is the Uniform Code of Military Justice: Articles 1-146, 10 USC §§ 801-946. Pursuant to Article 36(a), UCMJ, 10 USC § 836(a), the President has promulgated Rules of Evidence. Mil.R.Evid. 311(a) sets forth the modern understanding of the Fourth Amendment by stating that “[e]vidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against” a person with standing to challenge its admissibility.

Mil.R.Evid. 311 through 317, like the decisions of the Supreme Court, divide Fourth Amendment issues between coverage (that is, when the Fourth Amendment is applicable) and protections. Mil.R.Evid. 314(d) provides that “government property may be searched ... unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein at the time of the search.” See also United States v. Wooten, 34 MJ 141 (CMA 1992) (no expectation of privacy in bank records); United States v. Parrillo, 34 MJ 112 (CMA 1992) (overheard telephone call not a search); United States v. Schmitt, 33 MJ 24 (CMA 1991) (automobile may have been abandoned); United States v. Britton, 33 MJ 238 (CMA 1991) (no expectation of privacy in another’s locker even though not used for 5 months); see United States v. Thatcher, 28 MJ 20, 23 (CMA 1989).

We have discussed the privacy interest in numerous cases before this Court. See United States v. McCarthy, 38 MJ 398 (CMA 1993); United States v. Middleton, 10 MJ 123 (CMA 1981). As we indicated in Middleton:

In considering what expectations of privacy a servicemember may reasonably entertain concerning military inspections, we must recognize that such inspections are time-honored and go back to the earliest days of the organized militia.

10 MJ at 127.

In McCarthy we stated:

We need not determine the outer limits of appellant’s “reasonable” expectation of privacy. Suffice it to say that he could not reasonably expect to avoid apprehension in this case by retreating to his room.

38 MJ at 403.

We also indicated in Lopez that “the Supreme Court has never expressly applied the Bill of Rights to the military, but has assumed they applied.”² 35 MJ at 41.

This is not only of academic importance, but also it is important to the President in deciding what rules should be applied to the military.³ Because of the “special needs” in the military, Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 628, 109 S.Ct. 1402, 1419, 103 L.Ed.2d 639 (1989) (case for testing without individualized suspicion is “compelling”); cf. New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (inspection based upon a reasonable suspicion is appropriate), the Fourth Amendment may not apply in total. See United States v. McCarthy, supra. Judge Cox’s view concerning the reasonable commander and the reasonableness clause of the Fourth Amendment may apply. That view is as follows:

The Fourth Amendment only protects military members against unreasonable searches within the context of the military society. Something as drastic as a “shakedown inspection” can only be justified in the military because of the overriding need to maintain an effective force. Likewise, preemptive strikes on drugs and other dangers can only be reasonable because of their impact on the mission. The United States Court of Military Appeals has the obligation to ensure that inspections, searches, and seizures in the military society are reasonable in their inception and in their conduct. This means that commanders must have rules which are honest, simple, forthright, and easy for both the commander and the commanded to understand.

United States v. Lopez, 35 MJ at 45 (citations omitted) (Cox, J., concurring with modest reservations).

Unless there are changes to the Rules, we are bound by Mil.R.Evid. 313(b), which provides in part:

An “inspection” is an examination of the whole or part of a unit ... to determine and to ensure the security, military fitness, or good order and discipline of the unit____ An order to produce body fluids, such as urine, is permissible in accordance with this rule. 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.

If a purpose of an examination is to locate weapons or contraband, and if: (1) the examination was directed immediately following a report of a specific offense in the unit, ... and was not previously scheduled; (2) specific individuals are selected for examination; or (3) persons examined are subjected to substantially different intrusions during the same examination, the prosecution must prove by clear and convincing evidence that the examination was an inspection within the meaning of this rule.

In United States v. Bickel, 30 MJ 277 (CMA 1990), we upheld the constitutionality of this provision.

But Mil.R.Evid. 313(b), which makes a distinction between administrative inspections and inspections for prosecutorial purposes, is probably more restrictive than it need be. See e.g., Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); Skinner v. Railway Labor Executives Ass’n, supra. Cf. Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987); New Jersey v. T.L.O., supra.

The threshold question in this case is whether Capt. Lindsay’s decision to order a urinalysis examination was a subterfuge search for contraband rather than a lawful inspection. Our principal focus is on the role of Capt. Lindsay. He decided to order a random urinalysis of his unit because he knew that the unit’s experienced SACO was scheduled to separate from the service; he wanted to deter drug use during the Christmas holidays; and he wanted to comply with Marine Corps policy and directives requiring urinalysis testing. When Capt. Lindsay made his decision to conduct the urinalysis examination, there had not been a “report of a specific offense in the unit.” There were no “specific individuals ... selected for examination” or “substantially different intrusions” made a part of this urinalysis testing. Further, an inspection may include examination of a “whole or part of a unit.” Thus, we conclude that Capt. Lindsay’s decision to order a urinalysis examination was a legitimate action to conduct a lawful inspection in compliance with Mil.R.Evid. 313(b).

We are mindful that Sgt. Ramon and Capt. Jackson had received information linking appellant to drug use. However, there is no evidence that either of them conveyed this information to Capt. Lindsay. At the time of Jackson’s phone call to Lindsay during which he volunteered the S-l section for testing, Jackson was in receipt of two pieces of information. First, he was aware that Sgt. Ramon had received an anonymous tip that someone in the S-l section had used drugs. And second, he was also aware that Sgt. Ramon had thereafter received an allegation that appellant was a drug user. We need not answer the question whether these two pieces of information constitute “a report of a specific offense in the unit.” There is no indication that either of these allegations were known to Capt. Lindsay. Further, Capt. Lindsay’s decision to accept Capt. Jackson’s suggestion to test the S-l section followed Lindsay’s legitimate decision to conduct a urinalysis inspection. While Capt. Lindsay testified he pinpointed the S-l section after he talked to Capt. Jackson, the primary purpose of ordering the inspection was to “deter and to disencourage personnel from using ... drugs.” There is no indication of a so-called “wink and a nod” (see 41 MJ at 175 (Wiss, J., dissenting)) between Capt. Lindsay, Capt. Jackson, and Sgt. Ramon to create a pretext for an inspection. And finally, we will not impute the knowledge of either Capt. Jackson or Sgt. Ramon to Capt. Lindsay. In conclusion, we hold that, under the facts of this case, there was a proper inspection of part of a unit by a commander and, therefore, the evidence obtained through that inspection is admissible.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Judges COX and GIERKE concur.

1 . The court below erroneously stated this as confinement. Unpub. op. at 1.

2 . As the Court stated in Davis v. United States, -U.S.-,-, n. *, 114 S.Ct. 2350, 2354, n. *, 129 L.Ed.2d 362 (1994):

We have never had occasion to consider whether the Fifth Amendment privilege against self incrimination, or the attendant right to counsel during custodial interrogation, applies of its own force to the militaiy, and we need not do so here. The President, exercising his authority to prescribe procedures for military criminal proceedings, see Art. 36(a), UCMJ, 10 U.S.C. § 836(a), has decreed that statements obtained in violation of the Self-Incrimination Clause are generally not admissible at trials by court-martial. Mil. Rules Evid. 304(a) and (c)(3). Because the Court of Militaiy Appeals has held that our cases construing the Fifth Amendment right to counsel apply to militaiy interrogations and control the admissibility of evidence at trials by court-martial, see, e.g., United States v. McLaren, 38 MJ 112, 115 (1993); United States v. Applewhite, 23 MJ 196, (1987), and the parties do not contest this point, we proceed on the assumption that our precedents apply to courts-martial just as they apply to state and federal criminal prosecutions.

3 . The discussion concerning application of the Fourth Amendment is more than an academic discussion. It relates directly to the bright-line rules set forth in Section III of the Military Rules of Evidence, Manual for Courts-Martial, United States, 1984. While these rules are helpful for commanders, promulgating the rules can be a very tedious process, taking sometimes up to 4 years to promulgate a rule. Draft Mil.R.Evid. 305(e), which seeks to conform military practice to Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), and McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), has not been approved as of yet. Judge Cox has emphasized his concern about the rules in United States v. Lopez, 35 MJ 35, 42 (CMA 1992)(Cox, J., concurring with modest reservations), and United States v. Alexander, 34 MJ 121, 127 (CMA 1992)(Cox, J., concurring in the result). Finally, this Court in United States v. Middleton, 10 MJ 123 (CMA 1981), while recognizing Mil.R.Evid. 313(b), did not set forth why the rule was promulgated and the impact of Middleton on the prior cases — United States v. Roberts, 2 MJ 31 (CMA 1976), and United States v. Thomas, 1 MJ 397 (CMA 1976). See also Lederer and Borch, Does the Fourth Amendment Apply to the Armed Forces?, 3 William and Mary Bill of Rights J. 219 (Summer 1994).