Petition for Writ of Certiorari — Cox v. United States
Supreme Court brief1987
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8 6 ] 9 D0 . ri Supreme Court. U.S.
4
No.
In the Supreme Court of the Gnit
OCTOBER TERM, 1986
CALVIN Cox
SERGEANT, UNITED STATES AIR FORCE,
PETITIONER
U.
UNITED STATES OF AMERICA
RESPONDENT
PETITION FOR A WRIT OF CERTIORARI TO THE
) UNITED STATES COURT OF MILITARY APPEALS
LEO L. SERGI
Colonel,
Office of The Judge Advocate General
United States Air Force
HQ USAF/JAJD
Bldg 5683
Bolling AFB, DC 20332-6128
(202) 767-1362
Counsel of Record
and
HARRY L. HEINTZELMAN, I\
Major,
Oprice of The Judge Advocate General
United States Air Force
QUESTIONS PRESENTED
I. WHETHER COMPULSORY MILITARY “INSPEC-
TION” OF A SERVICEMEMBER’S URINE IS
UNREASONABLE UNDER THE FOURTH AMEND-
MENT TO THE CONSTITUTION OF THE UNITED
STATES, WHERE, AS HERE, EVIDENCE OBTAINED
THROUGH SUCH DRUG URINALYSIS IS USED IN
CRIMINAL ACTIONS.
Il. WHETHER THE PETITIONER’S CONVICTION OF
THE WRONGFUL USE OF COCAINE SHOULD BE SET
ASIDE BECAUSE THE EVIDENCE IS INSUFFICIENT
TO PROVE GUILT BEYOND A REASONABLE DOUBT
AS REQUIRED BY THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES.
TABLE OF CONTENTS
Page
Opinions Relow er re eee re ee ea arti |
wurism@iction: ..n.s sss atk ar aie ae Re a ete l
Constitutional Provisions Involved ............. 2
Statutes Involved ..... as Ar ae hero Yd
Statement of the Case . Pe Wt sy 2 2 hid pA 5
Reasons for Granting the Writ... Pe ee 12
Conclusion ... oe ee Seer Zo
Appendix A 3 eee et la
Appendix B . ee een Za
Appendix C ; es oa
TABLE OF AUTHORITIES
( "A Ss ES 3
Bell v. Wolfish, 441 U.S. 520 (1979) ...........
Camara v. Municipal Court, 387 U.S. 528
a ec 13, 14,
Capua v. City of Plainfield, 643 F. Supp. 1507
a nse yb ny Goa 09 o wa
Carlson v. Schlesinger, 511 F.2d 1327 (D.C. Cir.
se ag D0 I Ng eg ea ae
City of Palm Bay v. Bauman, 475 So. 2d 1322
te es. OO Oat, POSS)... ww ee cass
Colonnade Catering Corp. v. United States, 397
OR es eb ie chee caddues
Colorado v. Bertine, ___ U.S. ; 107 S.Ct.
738, 743 (1987) 93 L.Ed. 2d 739 (1987) .......
Committee for G. I. Rights v. Callaway, 370
F. Supp. 934 (1974) rev’d 518 F.2d 466 (D.C.
a EA eae rrr er eee ree 16,
_ Delaware v. Prouse, 440 U.S. 648 (1979) .......
Division 241 Amalgamated Transit Union (AF'L-
CIO) v. Suscy, 538 F.2d 1264 (7th Cir. 1976),
cert. denied 429 U.S. 1029 (1976) ............
Donovan v. Dewey, 452 U.S. 594 (1981) ........
Frank v. Maryland, 359 U.S. 360 (1959) over-
ruled in part Camara v. Municipal Court, 387
Ns ey we oe va aes 86%
In re Winship, 397 U.S. 358 (1970) ............
Leary v. United States, 395 U.S. 6 (1969) .......
Marshall v. Barlow’s Inc, 436 U.S. 307 (1978) ...
McDonell v. Hunter, 612 F. Supp. 1122.(S.D. lowa
1985), affd as modified, 809 F.2d 1302 (8th
ry da kas oak haa Om WS
Morisette v. United States, 342 U.S. 246 (1952) .
Mullaney v. Wilbur, 421 U.S. 684 (1975) .......
National Treasury Employees Union v. Von
Raab, 649 F. Supp. (E.D. La. 1986), vacated
860 F.2d 170 (8th Cir. 1987) .......-........
iil
17, 18
17, 19
13, 14
13, 20
oe
> Se
ay et
CASES — Continued:
New Jersey v. TLO, 469 U.S. 325 (1985) .. 2.0...
O'Connor v. Ortega, us. ..... 207 S. Gt.
1402, O4 L.. Ba. 2A TIACIGST) Ww .. e eees
Olmstead v. United States, 277 U.S. 488 (1928) ..
Parker v. Levy, 417 U.S. 733 (1974) ...........
Schmerber v. Californ ia, 384 U.S. 757, 767
fe ee er ar rr re re rrr
Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.
1Y86), cert. denied, _._ US. ___, 107 S.Ct
a 1, Be Ls. BA. 2G GRO (TGGS) og occ ccc cee twcs
State v. Flinchpaugh, 659 P.2d 208 (Kansas
SOU eo Oe a eae ea ce ee
Storms v. Coughlin, 600 F. Supp. 1214 S.D.N.Y.
EE oh atte ae be aad he eee
Tot v. United States, 319 U.S. 463 (1948) .......
United States v. Afanador, 567 F.2d 1325 (5th
Ce a a eat, ee acne eee teen
United States v. Armstrong, 9 M.J. 374 (C.M.A.
SE erie rte ne eh ee ee ae eee
United States v. Austin, 21 M.J. 592 (A.C.M.R.
a aS ara reg arene Oi praca ain ea ala een ora
United States v. Bassano, 23 M.J. 661
LPR GE ison oe a on ee
United States v. Biswell, 406 U.S. 311 (1972) ....
United States v. ex rel Crosby v. Delaware, 346
Fr’. Supp. 213, 216(D. Del. 1972) .............
United States v. Cuffee, 10 M.J. 381 (C.M.A.
SE Chics ee a hase Pe eee ges eS ee
United States v. Ezell, 6 M.J. 307, 313 (C.M.A.
cs OP Er ROA at gee OMe ee Nie tg be Oe NEE her UE pie at
United States v. Ford, 23 M.J. 331 (C.M.A.
Pe Se awa® Ne ee oe Ae, Ore ee
United States v. Harpe r, 22 M.J. 157 (C.M.A.
SND Wikies Saco oh akan Ok hee ee week a ea
United States v. Lange, 15 U.S.C.M.A. 486.
er te ED ke ib oe i hs we wee
United States v. Middleton, 10 M.J. 123 (C.M.A.
Pe re ee a ar Cee ene 6,
Page
CASES — Continued:
United States v. Miller, 1 M.J. 367 (C.M.A. 1976)
United States v. Mitchell, 16 M.J. 654
Ve Tet 6 SR errs fee
United States v. Murphy, 23 M.J. 310 (C.M.A.
SOT aka ee a ee
United States v. Ramsey, 431 U.S. 606 (1977) ...
United States v. Roberts, 2 M.J. 31 (C.M.A. 1976)
United States v. Ruiz, 23 U.S.C.M.A. 181, 48
CEs Fe Ce ho kas a kw
United States v. Vincent, 15 M.J. 613
4.8 Teh Rh Me. ees ar rena
United States v. Whittier, 23 U.S.C.M.A. 121,
SC EE. GES o.oo eee eee
United States v. Wetzel, 7 M.J. 95 (C.M.A.
SUEOR 6 os Tees hand en eae ee
Winston v. Lee, 470 U.S. 753 (1985) ...........
Wolf v. Colorado, 338 U.S. 25 (1949) ...........
Wyman v. James, 400 U.S. 309 (1971) rev'g James
v. Goldman, 303 F.Supp. 935 (S.D.N.Y. 1969) .
UNITED STATES CONSTITUTION:
Ames TE... ioe eee
Apes FY cc oi Lie ee
STATUTES:
Uniform Code of Military Justice, 10 U.S.C.
§§ 801-940 (1982)
Article 31 (10 U.S... 4 SBR) 2. ks oo ca ee:
Article 60 (10 U.S.C. § 860) ..............
Artiele 112a(10 U.3.C.§ 9iZa).........6:.
OTHER AUTHORITIES:
Exec. Order No. 12,564, 51 Fed. Reg. 32,889
(1986)
OC, Qo ea eae oe, a eee
ee. WHE 5 cs ES ee ee eee
Page
24
OTHER AUTHORITIES — Continued Page
Manual for Courts-Martial, i
Military Rule of Evidence or
Rule for Courts-Martial (R.C.4
|
|
1.) 1
t.£.)313 15,18
LE.
Military Rule of Evidence (M 2 a
Paragraph 37(b\(2) | 2, 23
Lyyers, The Specificity Requirement in Militar
Search Warrants, b 1] Mil L.Rey 1, 36 37 (1975)
Note, 13 Am. Crim. L. Rev. 831 (1976) Li
Note, 4 Hofstra L. Rev. 837 (1976) 17, 18
Statf of Senate Subcomm. on Alcoholism and
Narcotics, 92d Cong.., Ist Sess., Report 0 f Drug
Abuse in the Military, 117 Cong.Rec. 58441,
S8442 (daily ed., June 8, 1971) ¥
Jn the Supreme Court of the Gnited States
OCTOBER TERM, 1986
No.
CALVIN Cox
SERGEANT. UNITED STATES AIR FORCE
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS
The petitioner, Calvin Cox, respectfully prays that a Writ
of Certiorari issue to review the decision of the United States
Court of Military Appeals entered in this proceeding by a
summary disposition on April 8, 1987.
OPINIONS BELOW
The summary disposition of the United States Court of
Military Appeals is reported at M.J.___- (C.M.A. 1987)
(Appendix A). The decision of the United States Air Force
Court of Military Review is unpublished, summary disposi-
tion (ACM S27156, A.F.C.M.R., 29 August 1986) (Appendix
B).
JURISDICTION
The decision of the United States Court of Military Appeals
was rendered on April 8, 1987. The jurisdiction of this Court
is invoked under 28 U.S.C. § 1259.
(1)
~
CONSTITUTIONAL PROVISIONS INVOLVED
The Constitution of the United States provides:
AMENDMENT IV
The right of the people to be secure in their persons,
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 af-
firmation, and particulariy describing the place to be
searched, and the persons or thing's to be seized.
AMENDMENT V
No person shall... be deprived of life, liberty, or proper
ly, without due process oO! law
STATUTES INVOLVED
The Uniform Code of Military Justice provides:
Article 112a. Wrongful use, possession, etc., of con-
trolled substances.
(a) Any person subject to this chapter who w rongtully
uses a substance described in subsection
(b) .The substance reterred to in subsection (a) is the
tollowing:
(1) ... cocaine...
U.C.M.J., Article 112a, 10 U.S.C. . 91Za.
MANUAL FOR COURTS-MARTIAL PROVISIONS
INVOLVED
Part IV, Punitive Articles, provides in pertinent part:
37. Article 112a—Wrongful use, possession,
etc. of controlled substances.
=
Hlements.
(2) Wrongful use of a controlled substance.
(a) That the accused used a controlled sub-
stance; and
(b) That the use by the accused was wrongfuc.
Explanation.
(i) Controlled substance. “Controlled substance”
means... cocaine...
* * -
(5) Wrongfulness. To be punishable under Arti
cle 112, possession, use, distribution, introduction, or
manufacuture of a controlled substance must be
wrongful. Possession, use, distribution, introduc-
tion, or manufacture of a controlled substance is
wrongful if it is without legal justification or
authorization. Possession, use, distribution, in-
troduction, or manufacture. of a_ controlled
substance is not wrongful if such act or acts are:
(A) done pursuant to a legitimate law enforcement
activities (for example, an informant who receives
drugs as part of an undercover operation is not in
wrongtul possession); (B) done by authorized per-
sonnel in the performance of medical duties; or (C)
without knowledge of the contraband nature of
the substance (for example, a person who possesses
cocaine, but actually believes it to be sugar, is not
guilty of wrongful possession of cocaine). Use of a
controlled substance may be inferred to be
wrongful in the absence of evidence to the con-
trary. The burden of going forward with evidence
with respect to any such exception in any court-
martial or other proceeding under the code shall be
upon the person claiming its benefit. If such an
issue is raised by the evidence presented, then the
burden of proof is upon the United States to establish
that the use, possession, distribution, manufacture or
introduction was wrongful.
-
e. Maximum punishment.
(1) Wrongful use, possession, manufacture or in-
troduction of controlled substance.
(a) ... cocaine.... Dishonorable discharge,
forfeiture of all pay and allowances, and confine-
ment for 5 years.
* * *
Part Ill, Military Rules of Evidence, provides:
Rule 313. Inspections and inventories in the armed
forces
(a) General rule. Evidence obtained from inspec-
tions and inventories in the armed forces conducted in
accordance with this rule is admissible at trial when
relevant and not otherwise inadmissible under these
rules.
(b) Inspections. An “inspection” is an examination of
the whole or part of a unit, organization, installation . . .
conducted as an incident of command the primary pur-
pose of which is to determine and to ensure the securi-
ty, military fitness, or good order and discipline of the
unit, organization, installation, vessel, aircraft, or vehi-
cle. An inspection may include but is not limited to an ex-
amination to determine and to ensure that any or all of
the following requirements are met: that the command is
properly equipped, functioning properly, maintaining
proper standards of readiness, sea or airworthiness,
sanitation and cleanliness, and that personnel are pres-
ent, fit, and ready for duty. 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 in-
spection within the meaning of this rule. Inspections shall
be conducted in a reasonable fashion and shall comply
with Mil. R. Evid. 312, if applicable. Inspections may
utilize any reasonable natural or technological aid and
may be conducted with or witiout notice to those in-
spected. Unlawtul weapons, contraband, or other
evidence of crime located during an inspection may be
seized.
The analysis of Rule 812 is contained in Appendix C.
STATEMENT OF THE CASE
On April 29-30, 1986, the petitioner was tried by a special
court-martial, sitting with members, at Homestead Air Force
Base, Florida. Contrary to his plea of not guilty, he was con-
victed of wrongfully using cocaine, somewhere within the
continental limits of the United States, between September
22 1985, and October 22, 1985, in violation of Article 112(a).
Uniform Code of Military Justice (U.C.M.J.) (10 U.S.C
§ 912(a)). The members sentenced petitioner to punitive
separation from the United States Air Force with a bad con
duct discharge, two months confinement, and reduction in
grade from Sergeant (E-4) to Airman Basic (E-1).
The following facts gave rise to the preferral and referral
of court-martial charges alleging petitioner’s wrongtul use of
cocaine. The petitioner and approximately 25 other Air Force
members were chosen at random by computer (from a per
sonnel list of all active duty Air Force members assigned to
Homestead Air Force Base, Florida) to provide urine samples
for drug screening. Military Rule of Evidence (M.R.E.) 313,
Manual for Courts-Martial (M.C.M), 1984.!
On October 22, 1985, the petitioner provided a urine
specimen for urinalysis testing. Upon arriving at the testing
location, petitisner’s identity was confirmed and his social
security number was annotated on a chain-of-custody log and
on a label that was later placed on the bottle containing the
petitioner’s urine. Next, the laboratory specimen number,
which was preprinted on the bottle label, was recorded on the
log. After verifying the accuracy of this information the peti
6
tioner initialed both the log and the label, which was then af-
fixed to an empty specimen jar. Thereafter the petitioner was
instructed to fill the bottle with urine. R. 33.
A male observer accompanied petitioner to a nearby
restroom and directly witnessed him urinate into the
specimen bottle. The lid was placed back on the bottle and
returned to the evidence custodian. R. 33.
In the petitioner's presence, the evidence custodian insured
the lid was tight and then placed tamper-resistant tape over
the mouth of the bottle. After these procedures were com-
pleted, petitioner's sample was put into a urine specimen
storage box and the petition was allowed to leave. R. 33-34.
After the necessary samples were collected, the evidence
custodian turned over the petitioner’s sample along with the
others to the Assistant Drug Program Monitor, who was
responsible for shipping urine specimens to the Air Force
Drug Testing Laboratory at Brooks Air Force Base. Both in-
dividuals compared the information contained on the log with
that contained on the labels affixed to the urine specimens to
insure the information was correctly identified on the log. R.
34.
The Drug Program Monitor examined all the bottles. The
tamper-resistant tape on petitioner’s bottle, and eleven other
bottles with which it was packaged, had not been disturbed.
R. 34. The Drug Monitor then double wrapped the box con-
taining the twelve samples and shipped it to the Drug Testing
Laboratory. R. 35.
readiness. The compulsory production of body fluids was not originally en-
compassed within this Rule out of concern that such a production of body
fluids implicated Article 31, U.C.M.J., protections against self-
incrimination. In United States v. Armstrong, 9 M.J. 374 (C.M.A. 1980), the
Court of Military Appeals, implicitly overruling prior precedent, held that
the provision of nontestimonial evidence — such as handwriting examples or
body ftluids—is not covered by the privilege against self-incrimination.
Later, in United States v. Muldleton, 10 M.J. 123 (C.M.A. 1981), that court
unanimously revitalized the authority of a commander to conduct inspee-
tions. Together, these cases provided the impetus to modify M.R.E. 313 in
1984 to include the production of body fluids as the proper subject of an in-
Sspection,
7
The Air Foree Drug Testing Laboratory at Brooks Air
Force Base received the box, containing petitioner’s sample,
on October 25, 1985. Personnel from the shipping and receiv-
ing section of the laboratory inspected the exterior of the box
for signs of tampering or damage; if there is none, the box is
opened and the urine specimens and accompanying paper-
work are removed. R. 35, 38. Each bottle is checked to ascer-
tain if the tamper resistant tape is intact, the bottle contains
the necessary volume of urine, and the label contains all the
requ.red information. R. 39. If there is a discrepancy in the
information contained on the bottle and the log, or if the sam-
ple contains an insufficient amount of urine for testing, this
discrepancy is noted and the sampie is destroyed. R. 39, 40.
Urine samples are then tagged with a laboratory accession
number and stored in racks with contain approximately 96
urine samples. There is a sticker placed on the bottle, itself,
one is placed on the lid, and a third sticker is placed on top of
the lid to be affixed to the test tube containing an alliquot—a
portion of the original sample — used in urinalysis testing. R.
ai. ~
A sample bearing petitioner’s accession number was tested
by the radioimmunoassary (RIA) method, a first-level gross
scanning test. The RIA testing technique employs the use of
a purified antibody. The antibody is mixed with the alliquot of
urine and a fixed amount of metabolite labelled with a
radioactively-substance. If there is an illegal drug metabolite
present in the urine specimen, it will compete with the
radioactively-labelled drug for the antibody’s binding sites.
Because of the reciprocal correlation between any illegal
drug metabolite present in the urine and the radioactivity
labelled drug metabolite, comparison of the levels of radioac-
tiwely present in a specimen against a series of known stand-
ahis reveals whether the sample is presumed positive or
1 enpgrebe for the presence of an illegal drug metabolite. Under
this testing method, the urine tested negative for the
presence of marijuana metabolites, but a separate sample
tested positive for the presence of metabolites of cocaine. R.
46, 47, 76, 77.
re)
After RIA screening, an alliquot of the urine specimen
identified as petitioner’s was shipped to CompuChem Labora-
tories, in Research Triangle Park, North Carolina, for con-
firmation testing by the gas chromatography/mass_ spec-
trometry (GC/MS) method. This technique is generally
accepted as being the state of the art for confirming the
presence of drugs or drug metabolites in body fluids. R. 48,
78. GC/MS is a relatively complicated three-step process:
The first step is the isolation of the drug or drug
metabolite from the urine specimen, and that’s done by
mixing the urine with an organic solvent, rather like mix-
ing gasoline and water -— they will separate in two layers,
and the cocaine metabolite in this case will prefer to go
into the gasoline, so the gasoline or the organic solvent is
separated and it is evaporated to dryness. By doing that,
you concentrate, or you increase the amount of cocaine
metabolite tha you’re dealing with. Once you have the
residue, or this concentrated urine specimen, you then
subject it to gas chromatograpy. Gas chromatography is
simply a method of separating the cocaine metabolite
from other chemicals that would be present in this urine
extract or residue that you have, and the mass spec-
trometer is a detector for the gas chromatograph, and it’s
a complicated piece of machinery, or instrument, but it
primarily looks at the molecular structure of the cocaine
metabolite and, if you imagine the molecular structure of
cocaine metabolite to be a jigsaw, what happens in the
mass spectrometer, that jigsaw is broken up into several
large fragments and many minor fragments and that
break-up, the fragmentation of that jigsaw is consistent
from day to day, and hour to hour, within the mass spec-
trometer, and the fingerprint pattern, or the fragmenta-
tion pattern that’s seen is specific for the particular drug
or drug metabolite in question.
R. 78, 79.
Using the GC/MS testing method, on December 4, 1985,
CompuChem determined the urine sample contained 2044
nanograms per milliliter of cocaine metabolite. Because this
exceeded the Department of Defense mandated cut-off of 300
nanograms per milliter, the sample was deemed to be positive
for the presence of cocaine. When this positive result was
reported back to the Air Force Laboratory at Brooks it had
an incorrect Brooks lab accession number. R. 48, 49, 63, 82,
83. This mistake was attributed to a clerical error. R. 64.
As a result of this error, another alliquot was taken from
the bottle identified as containing petitioner’s urine. This alli-
qot was shipped to the Center for Human Toxicology at the
University of Utah for confirmation testing. R. 50. Because
the chain-of-custody document failed to specify the sample
should be tested for “cocaine only,” the Center for Human
Toxicology only tested the urine for the presence of the
tetrahydrocannabinol (THC) metabolite, the psychoactive
component of marijuana. R. 50, 51.
When the results of this confirmation test were received at
the Air Force laboratory, they realized the sample was not
tested for cocaine as it should have been. R 52. Consequently,
another alliquot was drawn from the bottle and resubmitted
again to CompuChem for confirmation testing for the
presence of cocaine. R. 52. On January 28, 1986, a GC/MS
test of this sample by CompuChem revealed the preseiice of
cocaine metabolites in a concentration of 138138 nanograms
per milliliter.
After decribing the testing methodologies employed, Dr.
Michael A. Peat, the government drug urinalysis expert,
opined petitioner’s urine sample contained cocaine
metabolite, benzoylecgonine, and the presence of this
substance in the urine tested was consistent with the use of
cocaine during the period alleged. R. 83. Dr. Peat attributed
the disparity in the levels of cocaine metabolite present in the
two GC/MS tests to “growing evidence that the cocaine
metabolite, benzoylecgonine, is unstable and that, on storage,
particularly under certain conditions, the amount of that
metabolite would decrease in urine specimens.” R. 85.
During cross-examination, Dr. Peat admitted that he had
no direct knowledge that the urine rendering the positive test
results was in fact the petitioner's. R. 85. Dr. Peat never per-
10
sonally tested the sample and was merely basing his conclu-
sions on the review of documents prepared by the testing
laboratories. Because storing the urine in frozen storage
should have slowed down the decomposition of any cocaine
metabolite present, and because scientific evidence has not
yet revealed the rate of benzoylecgonine decomposition, Dr.
Peat could not knowledgeably address whether the 700
nanogram disparity in the levels of cocaine metabolite
reported present in the two GC/MS tests was unusually high
or not. R. 88.
Counterbalancing the government’s scientific evidence
revealing the presence of cocaine metabolites in urine iden-
tified as the petitioner’s, was the petitioner’s sworn denial of
ever having used cocaine, (R. 90, 93,) and unrebutted
evidence at petitioner's outstanding military character, (R.
91, 96-97, 100-101, 105, Def. Ex. A and B,) and reputation for
truthfulness (R. 97, 101, 105). Of particular note was peti-
tioner’s expressed desire to remain past his scheduled date of
separation to “try to.prove to my boss and him [petitioner’s
first first sergeant] and other people involved, that I don’t use
dope.” R. 92. Moreover, petitioner did not appear the least bit
apprehensive about having submitted a sample for urinalysis
testing when he told one witness about his participation in
the random drug inspection a few days after it had occurred.
R. 105.
In marked contrast to civilian practice, an adjudged court-
martial sentence must be approved by the convening authori-
ty who referred the case to trial or his successor. Article 60,
U.C.M.J., (10 U.S.C. § 860). In performing this important
duty, the convening authority must consider the result of
trial, the recommendations of his staff judge advocate and
any matters submitted by the accused before taking action on
the case. Pursuant to his right under Manual for Courts-
Martial, 1984, Rules tor Courts-Martial 1105, petitioner sub-
mitted a letter to the convening authority in which he noted
that:
I completely agree the Air Force has an undeniable need
for deterrence to drug usage among its members. But in
1]
the application of the urinalysis test, one area was
neglected and needs attention, i.e., how can a member,
who denies using drugs, have ample chance to combat a
positive urinalysis test?
The member is not notified of what food or drygs may
cause a positive reading. Test results are not returned to
the respective base for approximately 6-8 weeks (in my
case, nearly 4 months: 22 Oct 85-14 Feb 86). The elapsed
time between providing the sample and notification of a
positive result allows the member to forget or lose critical
information. Therefore, in courts-martial, the accused
must usually rely on character witnesses. This combina-
tion usually guarantees the member a verdict of guilty.
There is virtually no means of challenging a urinalysis
test. Sir, I question the assumption that a urinalysis test
ALONE is enough evidence to prove, beyond a doubt, an
accused member’s abuse of drugs.
Though this may seem far-fetched, someone had to have
spiked my drink. I went to a club Saturday, 19 Oct 85
(Big Daddys) to have a few drinks. I know this cannot fac-
tually be proven, but I can offer no explanation other
than an erroneous test. Sir, 1 DO NOT USE DRUGS!
As a Telecommunicator, Computer Operation, and Tape
Librarian for the 1942nd Information System Squadron
(ISS), I always maintained proper military conduct and
bearing on and off duty. There are absolutely no ad-
ministrative actions pending, or otherwise, against me.
I’ve continually given the Air Force a 110 percent effort
in completing the designated mission. This includes not
using drugs which may endanger the Air Force or its
members.
Attachment 1, Goode Response- U.S. v. Cox, dated June 25,
1986.
Atter fulfilling his statutory duties, the convening authori-
ty approved the finding and sentence adjudged on July 2,
1986. The Air Force Court of Military Review affirmed the
|
|
if
findings and sentence on August 29, 1986. The Court of
Military Appeals, acting sua sponte, then granted review
upon its own specified issue:
WHETHER THE RESULTS OF URINALYSIS TESTS
ALONE ARE SUFFICIENT UNDER THE CIRCUM-
STANCES OF THIS CASE, AS A MATTER OF LAW,
TO SUSTAIN A’ FINDING OF GUILTY TO
WRONGFUL USE OF COCAINE.
The Court then rendered its summary affirmance of peti
tioner’s case on April 8, 1987.
REASONS FOR GRANTING THE WRIT
I
The prevention of illegal drug use has increasingly become
a major national concern. In the tace of the widespread illicit
use of drugs and its intrusion into the Armed Forces and
other governmental entities, it is tempting to turn to random
periodic urinalysis testing as a solution. The issue presented
by this case is the constitutionality of such urinalysis testing
when the servicemember identified thereby is tried and con-
victed by court-martial solely on that evidence. Whether such
mandatory testing may properly be done to more readily
identify military drug abusers, rehabilitate them, or ad-
ministratively eliminate them from the military ranks is not
at issue here. It is conceded that the government has a vital
interest in ensuring the national defense and the combat
readiness of its forces. However, the questions posed in this
petition challenge the means by which that laudable goal of a
drug-free armed force is attained, not the goal itself.
This Honorable Court has frequently reaffirmed the princi-
ple that members of the armed forces enjoy the constitutional
benefits of the Bill of Rights unless any given protection Is,
expressly or by necessary implication, inapplicable. That ts
not to say that “the different character of the military com-
munity and of the military mission [may] require a different
application of those protections.” Parker v. Levy, 417 U.S.
738, 758 (1974). As the Court of Military Appeals noted
13
in United States v. Middleton, 10 M.J. 128 (C.M.A. 1981),
“Neither this Court nor the Supreme Court has ever held that
the Fourth Amendment does not shield the American service
person. Indeed, the opposite is true.” Jd. a 126-27 (quoting
United States v. Ezell, 6 M.J. 307, 313 (C.M.A. 1979)).
The essential purpose of the Fourth Amendment is to “im-
pose a standard of reasonableness upon the exercise of
discretion by government officials” inorder to “safeguard the
privacy and security of individuals against arbitrary inva-
sions by government officials.” Delaware v. Prouse, 440 U.S.
648, 653-654 (1979); Camara v. Municipal Court, 387 U.S.
523, 528 (1967). As this Court recently reiterated in Winston
v. Lee, 470 U.S. 753 (1985), “the overriding function of the
Fourth Amendment is to protect personal privacy and digni-
ty against unwarranted intrusion by the State.” Jd. at
759-760 (quoting Schmerber v. California, 384 U.S. 757, 767
(1966)). The Fourth Amendment thus gives concrete expres-
sion to the values of privacy and dignity which are “basic to a
free society,” Wolf v. Colorado, 338 U.S. 25, 27 (1949), and
protects these values by recognizing the “individual's
legitimate expectations that in certain places and at certain
times he has ‘the right to be left alone—the most comprehen-
sive of rights and the right most valued by civilized men.’ ”
Winston v. Lee, at 757-58 (quoting Olmsted v. United States,
277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).
This Court has also established that individuals retain an
expectation of privacy and a right to be free of government
intrusion in the integrity of their own bodies. Schmerber v.
California, supra; United States v. Ramsey, 431 U.S. 606
(1978). “One’s anatomy is draped with constitutional protec-
tion.” United States v. Afanador, 567 F.2d 1325, 1331 (5th
Cir. 1978). Because an involuntary blood test is subject to
Fourth Amendment constraints, Schmerber v. Califernia,
supra, Numerous federal and state courts have concluded
that the taking ef urine similarly constitutes a search and
seizure within the Fourth Amendment. See, Capua v. City of
Plainfield, 643 F. Supp. 1507 (D. N.J. 1986); McDonnell v.
Hunter, 612 F. Supp. 1122 (8.D. Towa 1985), affd as
modified, 809 F.2d 13802-(8th Cir. 1987); Shoemaker v.
14
Handel, 795 F.2d 1136 (3d Cir 1986), cert. denied, U.S
lO7 S.Ct 577, 93 L.Ed.2d 580 (1986); Division 241
Amalgamated Transit Union (AFL-CIO v. Suscy, 5388 F.2d
1264 (7th Cir. 1976), cert. denied 429 U.S. 1029 (1976); Na
tional Tre asury Employee ‘ Union } | On Raab, 649 kr Supp
(.D. La. 1986), vacated 816 F.2d 170 (8th Cir. 1987); City of
Pali Bay v. Bauman, 475 So. 2d 1322 (Fla App. oth Dist
LYSD).
Having established that mandatory urinalysis testing is a
search within the meaning of the Fourth Amendment, it
necessary then to determine its reasonableness. New Jerse /
v. TLO, 469 U.S. 325 (1985). What is reasonable depends
upon the context in which a search takes place. Ordinarily a
search requires both a warrant and probable cause to qualify
as constitutionally reasonabie However, in New Jersey
TLO, Supra, this Court noted that neither a warrant nor
probable cause Is an “irreducible requirement of a valid
search.” Instead, a search's reasonableness must be assessed
by balancing the social and governmental need for it against
the intrusiveness of the search—the risk that the search will
itself undermine the social order by unduly invading personal
rights or privacy. /d. at 599. “Courts must consider the scope
of the particular intrusion, the manner in which it is cor
ducted, the justification for initiating it, and the place in
which it is conducted.” Be Wolfish, 441 U.S. 520, 559
(1079)
Even in the context of the administrative or regulatory
spection exception Lo the Fourth Amendment, this Court ha
held such exe mipted earches to a reasonableness standard in
order to protect apainst potential yovernmentai abuse. See
Marshall Barlow's Ine, 486 U.S. 3807 (1978); Delaware
Prouse apra
Betore addressing the reasonableness of compulsory
periodic urinalysis inspections, an examination of the ad
ministrative inspection exceptions to the probable cause and
search warrant requirements of the Fourth Amendment |
appropriate
In dealing with administrative inspections, this Court ini
tially allowed them to be conducted without prior judi
lS
authorization. F'rank v. Maryland, 359 U.S. 360 (1959). The
Frank “no warrant” risk was repudiated eight years later in
Camara v. Municipal Court, 387 U.S. 523 (1967). In Camara,
the defendant sought a writ of prohibition while awaiting
trial on a charge of refusing a city building inspector access
to his residence. Mr. Justice White wrote for the majority
that F’rank was overruled insofar as it approved non-
consensual inspections of private dwellings without a search
warrant. Answering the Frank argument that such intru-
sions corroded only the peripheral Fourth Amendment
privacy right and not the central self-incrimination right, this
Court found that the amendment’s protection of privacy is as
important as it protection from unauthorized quests for
criminal evidence, and that criminal self-protection is at stake
at any rate since violations discovered by “inspection” can
lead to criminai prosecution.
Camara’s diminished warrant requirement for administra-
tive home inspections was restricted by a 6-3 opinion of this
Court in Wyman v. James, 400 U.S. 309 (1971), rev'g James v.
Goldberg, 303 F. Supp. 935 (S. D. N.Y. 1969), a decision
which allowed initial and periodic home inspections by a
caseworker in order to qualify for federal assistance. Mr.
Justice Blackmun wrote for the majority that such intrusions
were not intrusions in Fourth Amendment terms because
their purpose was rehabilitative, and even if the caseworker's
inspection Was categorized as a search, it was “reasonable” in
the Fourth Amendment sense because, among other factors,
the home visit was “not a criminal investigation, [did] not
equate with a criminal investigation and despite the an
nounced fears of Mrs. James ... [was] not in aid of any
criminal proceeding.” Jd. at 323.
In other areas subject to administrative inspection, this
Court has caretully limited such inspections to closely
regulated industries where the regulated business implied by
consent to the governmental intrusion as a price of doing
business. See, e.g., Donovan v. Dewey, 452 U.S. 594, 602-05
(1981) (coal mines); United States v. Biswell, 406 U.S. 311,
316-17 (1972) (gun selling); Colonnade Cate ring Corp ’.
United States, 397 U.S. 72, 76-77 (1970) (liquor industry).
lo
In contrast to statutorily authorized inspections which the
courts have come to recognize as exceptions to the probable
cause and warrant exceptions of the Fourth Amendment,
Congress has not chosen to enact legislation permitting
specific object-oriented regulatory inspections in the military.
Military inspections are predicated on the commander's in-
herent power to inspect his organization to determine its
ability to perform its mission. United States v. Lange, 15
U.S.C.M.A. 486, 35 C.M.R. 458 (1965). Such inspections have
been experienced by generations of Americans serving in the
armed services. “Thus, the image is familiar of a soldier
standing rigidly at attention at the foot of his bunk while his
commander sternly inspects him, his uniform, his locker, and
his personal and professional belongings.” United States v.
Middleton, supra, at 127. As the Court of Military Appeals
has aptly noted, inspections are part of the “disciplinary cost”
to be paid by a citizen soldier in order to shoulder his
“readiness” burden. United States v. Wetzel, 7 M.J. 95, 97
(C.M.A. 1979) (Fletcher, C. J., concurring).
With increased awareness of the adverse effect of drug
abuse on the military and the availability of drug dogs and
vastly improved drug testing technology, the object of
military inspections has shifted from whether a barracks area
is sanitary and orderly and its resident's clothing and gear
are in satisfactory order, to whether illegal substances are
coursing through a servicemember's veins.
When this change in focus first began, soldiers serving in
Europe challenged the constitutionality of the Army drug
abuse prevention plan which included urinalysis for persons
classified, upon credible evidence, as suspected as an alcohol
or drug abuser. The U.S. District Court for the District ot
Columbia held that the warrantless drug inspections
authorized by the program were not justified by military
necessity and that the use of information gained by such
searches as a basis for imposing punitive sanctions violated
the soldier's Fourth Amendment rights. That Court did,
however, permit the Army to continue warrantless drug in-
Spections, So long as that information was not used as basis
tor punitive action. Conmanittee for Gl. Rights v. Callaway,
370 FF. Supp. 984 (1974) rec'd 518 F.2d 466 (D.C, Cir. 1975).
17
Upon appeal by the Army, the U.S. Circuit Court for the
District of Columbia took notice of the differences between
military and civilian life and found, in the military context,
the Army’s warrantless drug inspections under this program
were not unreasonable under the Fourth Amendment. In
reaching this conclusion, the court cited a program provision
that “an inspection does not presuppose a criminal offense
and is not a search for evidence.” Committee, or G. I. Rights
v. Callaway, 518 F.2d 466, 474 (D.C. Cir. 1975). The Circuit
Court emphasized the primary purpose of the drug inspec-
tions was to ferret out illegal drugs as a means of protecting
the health of the unit and assuring its fitness to accomplish its
mission with any resulting punitive actions merely playing an
incidental role. Jd. at 477.
The District Court of Appeals in Committee for G. I. Rights
v. Callaway, supra, purported to apply the balancing test
from Carlson v. Schlesinger, 511 F.2d 1327 (D. C. Cir 1975),
wherein it stated: “To strike the proper balance between
legitimate military needs and individual liberties we must in
quire whether ‘conditions peculiar to military life’ dictate af
fording different treatment to activity arising in the military
context.” But this test “brings nothing to the problem, since it
provides no insight as to how to weigh claims of military
necessity.” Note, 13 Am. Crim. L. Rev. 831, 848-44 (1976)
Camara v. Municipal Court, supra, which set out the factors
to be used in assessing an administrative inspection program,
would seem to provide a more useful basis tor analysis. One
of the factors the Court relied upon in Camara was that the
inspection program there in issue was directed at a special
danger which needed to be combatted with a high degree of
effectiveness. But, while the circuit court asserted that such a
special danger did exist, there is considerable evidence’ in
Committeee for G. I. Rights v. Callaway supporting the con
clusion of the district court that “drug use in the Command
See Note, 4 Hofstra L.Rev. 837, 844-46 (1976); Statl of Senate Sub
comm. on Alcoholism and Narcotics, Y2d Cong., Ist Se Report of Dr
Abuse in the M itary, 117 Cong. Ree. S8441, S8442 (daily ed., June &
1971)
18
has not reached anything comparable to the epidemic propor-
tions detected in Vietnam and is not particularly different
from drug use encountered among civilians in major United
States cities.” Another critical factor in Camara was that the
inspections there at issue involved “a relatively limited inva-
sion of the urban citizen's privacy.” This can hardly be said of
the very personal inspections permitted under the challenged
drug abuse prevention plan. Apparently the serious nature of
the governmental intrusions is what prompted the Circuit
Court to declare that military personnel have a very low ex-
pectation of privacy, an assumption which has generally been
rejected by military courts and commentators. See United
States v. Roberts, 2 M.J. 31 (C.M.A. 1976); United States v.
Miller, 1 M.J. 867 (C.M.A. 1976); United States v. Ruiz, 23
U.S.C.M.A. 181, 48 C.M.R. 797 (1974); United States v. Whit-
tier, 23 U.S.C.M.A. 121, 48 C.M.R. 682 (1974); Eggers, The
Specificity Requirement in Military Search Warrants, 61
Mil.L.Rev. 1, 36-87 (1975); Note, 4 Hofstra L. Rev. 837,
851-53 (1976).
Because of the shortcomings articulated above in the D.C.
Circuit’s determination of fourth-amendment reasonable-
ness, a reweighing of the countervailing factors involved
must be undertaken. The factors enumerated by this Court in
Wolfish provide convenient benchmarks for such an analysis.
Scope and Manner
Military Rule of Evidence 313(b) permits military com-
manders to order an urinalysis “inspection” of the whole or
part of a military organization for the presence of contra-
band. Evidence obtained from such inspections is admissible
at trial unless the military accused can establish a “tainted
purpose” —an intent to.seek criminal evidence from the outset
of the inspection. See United States v. Austin, 21 M.J. 592
(ACMR 1985); United States vo Vincent, 15 Md. 613
(N.M.C.M.R. 1982).
Other than Rule 313(b)’s hortatory comment that inspec-
tions shall be conducted in a reasonable manner, the only
practical limit) on a commander's discretion to direct
19
urinalysis testing of his subordinates is the capability of the
installation and the lab to process and test the urine samples.
Unlike the urinalysis testing system approved by the Third
Circuit Court of Appeals where jockeys are randomly tested
on days they race, Shoemaker v. Handel, supra, or by the
Fifth Cireuit Court of Appeals where Customs employees
pursuing a job transfer are given advance notice of drug
testing, National Treasury Employees Union v. Von Raab,
supra, the majority of military urinalysis tests are no-notice.
Because urinalysis testing involves both embarrassment, in
submitting a urine sample under the watchful gaze of a drug
testing monitor, and potential punishment if the results are
positive, servicemembers may consciously or unconsciously
be targeted for testing simply to harass them. When the
military employs such intrusive procedures for testing ser-
vicemembers for the presence of drug in their systems, the
method of selection for testing should be truly random. See
also Storms v. Coughlin, 600 F. Supp. 1214, 1223 (S.D.N.Y.
1984). (The use of a computer to make random selections for
participation in urinalysis is not an Air Force-wide practice.)
Justification
As justification for the imposition of compulsory urinalysis
testing, the government may point to its claims in Committee
for GJ. Rights v. Callaway, supra, at 370 F. Supp. 940, that
approximately fifteen percent of the soldiers in Europe in
1971 abused marijuana daily. Recent figures compiled by the
Air Force Drug Testing Laboratory indicate less than two
percent of the samples tested reveal the presence of drugs.
(This includes the samples of servicemembers received as a
result of probable cause searches, command-directed
urinalysis—the commander has reason to suspect an In-
dividual may be involved with drugs (may only be used for ad-
ministrative purposes), and twice-monthly follow-up tests of
members participating in a rehabilitation program.)
Although this limited drug involvement still requires con-
tinued command attention because of its compelling interest
in maintaining a drug-free fighting force, this level of drug
20
abuse does not reflect a generalized threat to military
readiness or discipline that warrants significant intrusion on
the constitutional rights of almost 600,000 Air Ferce officers
and airmen. The invidious effect of such a program is that it
casually sweeps up the innocent non-drug user with the guilty
and willingly sacrifices each individual's dignity and Fourth
Amendment rights.
It is beyond dispute that the taking and testing of urine
samples achieves the armed forces goal of identifying all
servicemember's who abuse illegal drugs. But under the law,
the results achieved cannot justify the means utilized and the
constitutionality of compulsory drug inspections cannot rest
on their fruits. See McDowell v. Hunter, supra, at 612 F.
Supp. 1122.
Place
Urinalysis samples are generally collected in a restroom
under the direct observation of a drug monitor who sees the
servicemember's private anatomy. Compare Sec. 4(c), Exec.
Order No. 12,564, 51 Fed. Reg. 32,889 (1986) (allows in-
dividual privacy during urine collection “unless the govern
mental agency has reason to believe that a particular in
dividual may alter or substitute the specimen to be
provided. ”)
Voluntariness
Tests are mandatory. A servicemember refusing tO pive a
urine specimen may be punished under the Unitorm Code of
Military Justice for disobeying an order; if that offense is
referred to a general court-martial and a conviction results,
the member may receive a punitive discharge and up to two
vears continement. In addition, making a servicemember,
unable to provide a urine sample. drink fluids has been con
sidered reasonable. See United States Mitchell. 16 M.J. 654
(N.M.C.M.R. 1983)
Nature of the Search Se
While the Fourth Amendment protects against invasions
for civil as well as criminal investigations, O'Connor v.
Ortega, ___ US. , 107 S.Ct. 1492 at 1500 94 L. Ed. 2d
714 (1987) (plurality opinion), the need for protection against
governmental intrusion increases if the investigation is either
designed to-enforce criminal laws or is likely to be used to
bring criminal charges against the person investigated. In
the case sub judice, the results of the urinalysis inspection of
petitioner's urine was the sole evidence used to obtain his
criminal conviction. The military’s use of urinalysis testing
results for criminal actions sets its drug identification pro-
yram apart from other urinalysis programs deemed reason-
able by the federal courts. Compare also Exec. Order No. 12,
564 at sec. 7(b) (limits the use of urinalysis results by federal
agencies to administrative actions).
Availability of Less Intrusive Measures
While a particular search may be reasonable even if its pur-
pose might be accomplished by less intrusive methods, Col-
orado v. Bertine, U.S. , 107 S.Ct. 738, 743 93 L.Ed.
2d 739, (1987), the availability of alternative sources of infor-
mation or evidence must at least be considered in determin-
ing the reasonableness of a particular search. In the case of
the military, it need not rely on mass drug inspections to un-
cover illegal drug abuse. Military drug abusers should be sub-
ject to discovery if the military relies on its substantial com-
mand and criminal investigative structure to detect such
drug abuse symptoms as absenteeism, tardiness, diminished
duty performance or aberrant conduct. As one defense
witness noted from his experience with newly inducted ser-
vicemembers, drug abusers tend to stand out in the military.
R.78. Individualized suspicion or a mere hunch of drug abuse
exposes a military member to commander-directed urinalysis
testing, this administrative tool, in conjunction with law en-
foreement drug suppression operations, will more than ade-
quately met the government’s objectives of a drug-free armed
borce,
a
Taking all these factors into account, the indiscriminate
and broad use of urinalysis contraband inspections to ferret
out illegal drug abuse where, as here, there is no objective
evidence linking petitioner to illegal drug usage, coupled with
the use of the evidence obtained in criminal proceedings,
renders such an inspection unreasonable for purposes of the
Fourth Amendment.
II
The Due Process Clause of the Fifth Amendment to the
United States Constitution protects an accused against con-
viction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he or she is
charged. In re Winship, 397 U.S. 358 (1970). Absent an ex-
press determination by Congress to the contrary, every
criminal offense which subjects an accused to felony-strength
punishment requires an element of mens rea or criminal state
of mind. Morisette v. United States, 342 U.S. 246 (1952). Peti-
tioner submits that the prosecution failed to prove that he
knowingly used cocaine beyond a reasonable doubt, and he
was held strictly liable under a malum prohibitum theory of
law, in violation of his right to due process of law.
The prosecution fails to satisfy its burden of proof when it
relies soley upon a presumption to establish the element of
mens rea, or requires the accused to neyative the existence ot
such an element. Mullaney v. Wilbur, 421 U.S. 684 (1974).
The Due Process Clause, does not prevent the government
from creating affirmative defenses based upon justifications
Wholly independent of the essential facts or elements con-
stituting the crime, and in so doing, placing the burden of
producing evidence supporting that defense upon the accused.
For facts to be properly classified as a “true” affirmative
defense, however, they must operate as an excuse or
justification for an accused, who in effect admits his guilt, but
pleads nonenforceability on other grounds. United States v.
er rel Crosby v. Delaware, 346 F.Supp. 2138, 216 (D.C. Del.
1972); see also, United States v. Cuffee, 10 M.J.-381 (C.M.A.
1981) (accused may be torced to bear burden of production as
to affirn ave defenses created by statutory exceptions to
23
criminal codes). The state may only create an affirmative
defense upon a rational basis. Crosby v. Delaware, supra,
216.
Applying these principles to the present Manual for Courts-
Martial (M.C.M., 1984), it becomes clear that it offers no ra-
tional basis, nor does it even address the matter of
eliminating mens rea as an element and making the lack of
knowledge some sort of quasi-affirmative defense to the
crime of using marijuana. Paragraph 37(b)(2), M.C.M., 1984,
establishes “wrongtulness” as an essential element of the of-
fense. It goes on to specify three “exceptions” when use of
contraband it not wrongful: (A) an act pursuant to legitimate
law enforcement activities; (B) an act pursuant to medical
authorization; and (C) without knowledge of the contraband
nature of the substance. A critical distinction between these
exceptions, is that while the first two set out true affirmative
defenses, the third exception cannot be so characterized. If
there is an elemental requirement of scienter or mens rea
within “wrongful use,” mere statement in the negative —“[an
act] without knowledge of the contraband nature of the
substance” — cannot magically convert the element into an af-
firmative defense. The prosecution cannot be properly ab-
solved of its burden to prove that element beyond a
reasonable doubt.
In the case sub judice, the prosecution relied upon an in-
ference that the presence of cocaine in the form of the
benezoylecognine metabolite in the petitioner's system
established that he knowingly used the substance. In examin-
ing the validity of such an inference, the rational connection
between the evidence presented and the facts inferred is a
critical consideration. See, Mullaney v. Wilbur, supra; Tot v.
United States, 319 U.S. 463 (19438); Leary v. United States,
395 U.S. 6 (1969). Although certainly distinguishable, the
Kansas Supreme Court recently examined a similar inference
in establishing wrongtul possession of drugs.
[Although] discovery of a drug in a person’s blood is cir-
cumstantial evidence tending to prove prior possession of
drugs ... it is not sufficient evidence to establish guilt
beyond a reasonable doubt. The absence of proof to evince
24
knowledgeable possession is the key. The drug might
have been injected involuntarily or introduced by artifice
into the defendant’s system.
State v Flinchpaugh, 659 P.2d 208 (Kansas 1983).
In short, mere presence of contraband in a person’s system
cannot sufficiently establish knowing use, or, by definition,
wrongtulness beyond a reasonable doubt. Contra, United
States v. Harper, 22 M.J. 157 (C.M.A. 1986); United States v.
Ford, 23 M.J.331(C.M.A. 1987); United States v. Murphy, 2:
M.J. 310 (C.M.A. 1987); United States v. Bassano, 23 M.J.
661 (A.F.C.M.R. 1987).
[n this case, the prosecution failed to present any evidence
that petitioner knowingly ingested cocaine. Permitting the
prosecution to rely upon even a “permissive” inference to
establish an essential mens rea element is nothing more than
impermissibly shifting the burden of proof to the accused by
presuming the existence of that element. The constitutional
tandard of proof beyond a reasonable doubt as to each and
every element of the charged offense was not thereby met
CONCLUSION
Petitioner submits that his petition for writ of certiorar|
should be granted in the interest of the fair administration of
military justice and requests that the finding of guilt to the
charge and specification and the sentence be set aside and the
charge and specification dismissed.
Respectfully submitted,
LEO L. SERGI
Colonel,
Office of The Judge Advocate Gene
United States Aur Fe
HQ USAF/JAJD
Bldg 5683
By lling 1B, DC 20382-61
(202) 767-1562
f i) ‘ yy re ri
no
HARRY L. HEINTZELM
Va)
(jit ot The Ay, j Wi f
la
APPENDIX A :
UNITED STATES COURT OF MILITARY APPEALS
UNITED STATES, APPELLEE USCMA Dkt. No. 56310/AF
: CMR Dkt. No. 827156
CALVIN Cox, (429-37-8308), ORDER
APPELLANT
On consideration of the granted issue (23 M.J. 402) in light
of United States v. Ford, 23 M.J. 331 (C.M.A. 1987) and
United States v. Murphy, 23 M.J. 310 (C.M.A. 1987), it is, by
the Court, this 8th day of April, 1987,
ORDERED:
That the decision of the United States Air Force Court of
Military Review is atfirmed.
For the Court,
/s/ JOHN A. Cutts, III
Deputy Clerk of the Court
cc: The Judge Advocate General of the Air Force
Appellate Defense Counsel (AMBROSE)
Appellate Government Counsel
APPENDIX B
UNITED STATES AIR FORCE
COURT OF MILITARY REVIEW
UNrrep STATES
SEROGEN' ("Al WIN COX KR 174-55 (-S 3508
UNITED STATES AIR FORCI
ACM S27156
»
PYAUG 1LYS86
senlence idjudged 380 April 19386 by SPCM convened at Horne
stead Air Force Base, Florida. Military Judge: Donald E. Wen
\pproved sentence: Bad conduct discharge, continement tor
two (2) months and reduction to airman basic
\ppellate Counsel for the Appellant: Colonel Leo L. Ser;
ana Major Charles Ie Ambrose, Jr Appr llate Cow lor thie
Lil Cl i
Ll nited State Colonel Kenneth R Renyert
Betore
SESSOMS, STEWART and LEWIS
\ppellate Military Judge
DECISION
3a
Rule 313. Inspections and inventories in the armed forces
(Analysis)
Athough inspections have long been recognized as being
necessary and legitimate exercises of a commander's powers
and responsibilities, see, e.g., United States v. Gebhart, 10
U.S.C.M.A. 606, 610 n.2, 28 C.M.R. 172, 176 n.2. (1959), the
1969 Manual for Courts-Martial omitted discussion of inspec-
tions except to note that the 4 152 restrictions on seizures
were not applicable to “administrative inspections.” The
reason for the omission is likely that military inspections per
se have traditionally been considered administrative in
nature and free of probable cause requirements. Cf. Frank v.
Maryland, 359 U.S. 360 (1959). Inspections that have been
utilized as subterfuge searches have been condemned. See,
e.g., United States v. Lange, 15 U.S.C.M.A. 486, 35 C.M.R.
458 (1965). Recent decisions of the United States Court of
Military Appeals have attempted, generally without success,
to define “inspection” for Fourth Amendment evidentiary
purposes, see, e.g., United States v. Thomas, 1 M.J. 397
(C.M.A. 1976) [three separate opinions], and have been con-
cerned with the intent, scope, and method of conducting in-
spections. See e.g., United States v. Harris, 5 M.J. 44(C.M.A.
1978).
(a) General rule.
Rule 313 codifies the law of military inspections and inven-
tories. Traditional terms used to describe various inspections.
e.g. “shakedown inspection” or “gate search,” have been aban-
doned as being conducive to confusion.
Rule 313 does not govern inspections or inventories not
conducted within the armed forces. These civilian procedures
must be evaluated under Rule 311(cX2). In general, this
means that such inspections and inventories need only be per-
missible under the Fourth Amendment in order to yield
evidence admissible at a court-martial.
Seizure of property located pursuant to a proper inspection
or inventory must meet the requirements of Rule 316.
da
(b) Znspections. Rule 313(b) defines “inspection” as an “ex-
amination ... 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, organization, installation, vessel, aircraft,-or vehicle.”
Thus, an inspection is conducted for the primary function of
ensuring mission readiness, and is a function of the inherent
duties and responsibilities of those in the-military chain of
command. Because inspections are intended to discover, cor-
rect, and deter conditions detrimental to military efficiency
and safety, they must be considered as a condition precedent
to the existence of any effective armed force and inherent in
the very concept of a military unit. Inspections as a general
legal concept have their constitutional origins in the very pro-
visions of the Constitution which authorize the armed forces
of the United States. Explicit authorization for inspections
has thus been viewed in the past as unnecessary, but in light
of the present ambiguous state of the law; see, e.g. United
States v. Thomas, supra; United States v. Roberts, 2 M.J. 31
(C.M.A. 1976), such authorization appears desirable. Rule
313 is thus, in addition to its status as a rule of evidence
authcrized by Congress under Article 36, an express
Presidential authorization for inspections with such
authorization being grounded in the President’s powers as
Commander-in-Chief.
The interrelationship of inspections and the Fourth
Amendment is complex. The constitutionality of inspections
is apparent and has been well recognized; see e.g., United
States v. Gebhart, 10 C.M.A. 606, 610 n.2, 28 C.M.R. 172, 176
n.2. (1959). There are three distinct rationales which support
the constitutionality of inspections.
The first such rationale is that inspections are not
technically “searches” within the meaning of the Fourth
Amendment. Ct. Air Pollution Variance Board v. Western
Alfalfa Corps, 416 U.S. 861(1974); Hester v. United States.
265 U.S. 57 (1924). The intent of the framers,the language of
the amendment ifself, and the nature of military life render
the application of the Fourth Amendment to a normal inspec-
tion questionable. As the Supreme Court has often
va
recognized, the “Military is, ‘by necessity, a specialized socie-
ty separate from civilian society.’ ” Brown v. Glines, 444 U.S.
348, 354 (1980) citing Parker v. Levy, 417 U.S. 733, 734
(1974), As the Supreme Court noted in Glines, supra,
Military personnel must be ready to perform their duty
whenever the occasion arises. To ensure that they always are
capable of performing their mission promptly and reliably,
the military services ‘must insist upon a respect for duty and
a discipline without counterpart in civilian life.’ 444 U.S. at
354 [citations omitted]. An effective armed force without in-
spections is impossible —a fact amply illustrated by the unfet-
tered right to inspect vested in commanders throughout the
armed forces of the world. As recognized in Glines, supra,
and Greer v. Spock, 424 U.S. 828 (1976), the way that the Bill
of Rights applies to military personnel may be different from
the way it applies to civilians. Consequently, although the
Fourth Amendment is applicable to members of the armed
forces, inspections may well not be “searches” within the
meaning of the Fourth Amendment by reason of history,
necessity, and constitutional interpretation. If they are
“searches,” they are surely reasonable ones, and are constitu-
tional on either or both of two rationales.
As recognized by the Supreme Court, highly regulated in-
dustries are subject to inspection without warrant. United
States v. Bisweil, 406 U.S. 311 (1972); Colonnade Catering
Corp. v. United States, 397 U.S. 72 (1970), both because of
the necessity for such inspections and because of the “limited
threats to ... justifiable expectation of privacy.” United
States v. Biswell, supra, at 316. The court in Biswell, supra,
found that regulations of firearms traffic involved “large in-
terests”, that “inspection is a crucial part of the regulatory
scheme”, and that when a fireams dealer enters the business
“he does so with the knowledge that his business records,
firearms, and ammunition will be subject to effective inspec-
tion,” 406 U.S. 315, 316. It is clear that inspections within the
armed forces are at least as important as regulation of
firearms; that without such inspections effective regulation
of the armed forces is impossible; and that all personnel
entering the armed forces can be presumed to know that the
ba
reasonable expectation of privacy within the armed forces is
exceedingly limited by comparison with civilian expectations.
See e.g., Committee for GI. Rights v. Callaway, 518 F.2d 466
(D.C. Cir. 1975). Under Colonnade Catering, supra, and
Biswell, supra, inspections are thus reasonable searches and
may be made without warrant.
An additional rationale for military inspection is found
within the Supreme Court’s other administrative inspection
cases. See Marshall v. Barlow’s Inc., 486 U.S. 397 (1978);
Camara v. Municipal Court, 387 U.S. 523 (1967); See v. City
of Seattle, 387 U.S. 541 (1967). Under these precedents an ad-
ministrative inspection is constitutionally acceptable for
health and safety purposes so long as such an inspection is
first authorized by warrant. The warrant involved, however,
need not be upon probable cause in the traditional sense,
rather the warrant may be issued “if reasonable legislative or
administrative standards for conducting an area inspection
are satisfied ...” Camara, supra, 387 U.S. at 538. Military
inspections are intended for health and safety reasons in a
twofold sense: they protect the health and safety of the per-
sonnel in peacetime in a fashion somewhat analagous to that
which protects the health of those in a civilian environment,
and, by ensuring the presence and proper condition of armed
forces personnel, equipment, and environment, they protect
those personnel from becoming unnecessary casualties in the
event of combat. Although Marshall v. Barlow’s Inc.,
Camara, and See, supra, require warrants, the intent behind
the warrant requirement is to ensure that the person whose
property is inspected is adequately notified that local law re-
quires inspection, that the person is notified of the limits of
the inspection, and that the person is adequately notified that
the inspector is acting with proper authority. Camara v.
Municipal Court, 387 U.S. 523, 532 (1967). Within the armed
forces, the warrant requirement is met automatically if an in-
spection is ordered by a commander, as commanders are em-
powered to grant warrants. United States v. Ezell, 6 M.J. 307
(C.M.A. 1979). More importantly, the concerns voiced by the
court are met automatically within the military environment
in any event as the rank and assignment of those inspecting
7a
and their right to do so are known to all. To the extent that
the search warrant requirement is intended to prohibit in-
spectors from utilizing inspections as subterfuge searches, a
normal inspection fully meets the concern, and Rule 313(b)
expessly prevents such subterfuges. The fact that an inspec-
tion that is primarily administrative in nature may result in a
criminal prosecution is unimportant. Camara v. Municipal
Court, 387 U.S. 523, 530-31 (1967). Indeed, administrative in-
spections may inherently result in prosecutions because such
iispections are often intended to discover health and safety
defects the presence of which are criminal offenses. /d. at
531. What is important, to the extent that the Fourth
Amendment is applicable, is protection from unreasonable
violations of privacy. Consequently, Rule 313(b) makes it
clear that an otherwise valid inspection is not rendered in-
valid solely because the inspector has as his or her purpose a
secondary “purpose of obtaining evidence for use in a trial by
court-martial or in other disciplinary proceedings. . .” An ex-
amination made, however, with a primary purpose of pro-
secution is no longer an administrative inspection. Inspec-
tions are, as has been previously discussed, lawful acceptable
measures to ensure the survival of the American armed
forces and the accomplishment of their mission. They do not
infringe upon the limited reasonable expectation of privacy
held by service personnel. It should be noted, however, that it
is possible for military personnel to be granted a reasonable
expectation of privacy greater than the minimum inherently
recognized by the Constitution. An installation commander
might, for example, declare a BOQ sacrosanct and off limits
to inspections. In such a rare case the reasonable expectation
of privacy held by the relevant personnel could prevent or
substantially limit the power to inspect under the Rule. See
Rule 311(c). Such extended expectations of privacy may,
however, be negated with adequate notice.
An inspection “may be made ‘of the whole or part’ of a unit,
organization, installation, vessel, aircraft, or vehicle. . . [and
is] conducted as an incident of command. “Inspections are
usually quantitative examinations insofar as they do not nor-
mally single out specific individuals or small groups of in-
Sa
dividuals. There is, however, no requirement that the en-
tirety of a unit or organization be inspected. Unless authority
to do so has been withheld by competent superior authority,
any individual placed in a command or appropriate super-
visory position may inspect the personnel and property
within his or her control.
Inspections for contraband such as drugs have posed a
major problem. Initially, such inspections were viewed simply
as a form of health and welfare inspection, see, e.g., United
States v. Unrue, 22 C.M.A. 446, 47 C.M.R. 556 (1973). More
recently, however, the Court of Military Appeals has tended
to view them solely as searches for evidence of crime. See e.g.
United States v. Roberts, 2 M.J. 31 (C.M.A. 1976); but see
United States v. Harris, 5 M.J. 44, 58 (C.M.A. 1978). Illicit
drugs, like unlawful weapons, represent, however, a poten-
tial threat to military efficiency of disastrous proportions.
Consequently, it is entirely appropriate to treat inspections
intended to rid units of contraband that would adversely af-
fect military fitness as being health and welfare inspections,
see, e.g. Committee for G.I. Rights v. Callaway, 518 F.2d 466
(D.C. Cir. 1975), and the Rule does so.
A careful analysis of the applicable case law, military and
civilian, easily supports this conclusion. Military cases have
long recognized the legitimacy of “health and welfare” inspec-
tions and have defined those inspections as examinations in-
tended to ascertain and ensure the readiness of personnel
and equipment. See, e.g., United Stutes v. Gebhart, 10 C.M.A.
606, 610 n. 2, 28C.M.R. 172, 176 n. 2 (1959); “[these] types of
searches are not to be confused with inspections of military
personnel . .. conducted by a commander in furtherance of
the security of his command”; United States v. Brashears, 45
C.M.R. 438 (A.C.M.R. 1972), rev'd on other grounds, 21
C.M.A. 522, 45 C.M.R. 326 (1972). Among the legitimate in-
tents of a proper inspection is the location and confiscation of
unauthorized weapons. See e.g., United States v. Grace, 19
C.M.A. 409, 410, 42 C.M.R. 11, 12 (1970). The justification
for this conclusion is clear; unauthorized weapons are a
serious danger to the health of military personnel and
therefore to mission readiness. Contraband that “would af-
Ya
fect adversely the security, military fitness, or good order
and discipline” is thus identical with unauthorized weapons
insofar as their effects can be predicted. Rule 313(b)
authorizes inspections for contraband, and is expressly in-
tended to authorize inspections for unlawful drugs. As
recognized by the Court of Military Appeals in United States
v. Unrue, 22 C.M.A. 466-469-700, 47 C.M.R. 556, 559-60
(1973), unlawful drugs pose unique problems. If uncontrolled,
they may create an “epidemic.” 47 C.M.R. at 559. Their use is
not only contagious as peer pressure in barracks, aboard
ship, and in units, tends to impel the spread of improper drug
use, but the effects are known to render units unfit to ac-
complish their missions. Viewed in this light, it is apparent
that inspection for those drugs which would “affect adversely
the security, military fitness, or good order and discipline of
the command” is a proper administrative intent well within
the decisions of the United States Supreme Court. See, e.g.,
Camara v. Municipal Court, 387 U.S. 523 (1967); United
States v. Unrue, 22 C.M.A. 446, 471 47 C.M.R. 556, 561
(1973) [Judge Duncan dissenting]. This conclusion is but-
tressed by the fact that members of the military have a
diminished expectation of privacy, and that inspections for
such contraband are “reasonable” within the meaning of the
Fourth Amendment. See, e.g., Committee for G.I. Rights v.
Callaway, 518 F.2d 466 (D.C. Cir. 1975). Although there are
a number of decisions of the Court of Miitary Appeals that
have called the legality of inspections for unlawful drugs into
question, see United States v. Thomas, supra; United States v.
Roberts, 2 M.J. 31 (C.M.A. 1977), those decisions with their
multiple opinions are not dispositive. Particularly important
to this conclusion is the opinion of Judge Perry in United
States v. Roderts, supra. Three significant themes are pres-
ent in the opinion: lack of express authority for such inspec-
tions, the perception that unlawful drugs are merely evidence
of crime, and the high risk that inspections may be used for
subterfuge searches. The new Rule is intended to resolve
these matters fully. The rule, as part of an express Executive
Order, supplies the explicit authorization for inspections then
lacking. Secondly, the Rule is intended to make plain the fact
10a
that an inspection that has as its object the prevention and
correction of conditions harmful to readiness is far more than
a hunt for evidence. Indeed, it is the express judgment of the
Committee that the uncontrolled use of unlawful drugs
within the armed forces creates a readiness crisis and that
continued use of such drugs is totally incompatible with the
possibility of effectively fielding military forces capable of ac-
complishing their assigned mission. Thirdly, Rule 313(b)
specifically deals with the subterfuge question in order to pre-
vent improper use of inspections.
Rule 313(b) requires that before an inspection intended “to
locate and confiscate unlawful weapons or other contraband,
that would affect adversely the ... command” may take
place, there must be either “a reasonable suspicion that such
property is present in the command” or the inspection must
be “a previously scheduled examination of the command.”
The former requirement requires that an inspection not
previously scheduled be justified by “reasonable suspicion
that such property is present in the command.” This standard
is intentionally minima! and requires only that the person
ordering the inspection have a suspicion that is, under the cir-
cumstances, reasonable in nature. Probable cause is not re-
quired. Under the latter requirement, an inspection shall be
scheduled sufficiently far enough in advance as to eliminate
any reasonable probability that the inspection is being used
as a subterfuge, i.e., that it is being used to search a given in-
dividual for evidence of crime when probable cause is lacking.
Such scheduling may be made as a matter of date or event. In
other words, inspections may be scheduled to take place on
any specific date, e.g., a commander may decide on the first
of a month to inspect on the 7th, 9th, and 21st, or on the oc-
currence of a specific event beyond the usual control of the
commander, e.g., whenever an alert is ordered, forces are
deployed, a ship sails, the stock market reaches a certain level
of activity, etc. It should be noted that “previously scheduled”
inspections that vest discretion in the inspector are permissl
ble when otherwise lawful. So long as the examination, e.().,
an entrance gate inspection, has been previously scheduled,
the fact that reasonable exercise of discretion is involved in
lla
singling out individuals to be inspected is not improper; such
inspection must not be in violation of the Equal Protection
clause of the 5th Amendment or be used as a subterfuge in-
tended to allow search of certain specific individuals.
The Rule applies special restrictions to contraband inspec-
tions because of the inherent possibility that such inspection
may be used as subterfuge searches. Although a lawful in-
spection may be conducted with a secondary motive to pros-
ecute those found in possession of contraband, the primary
motive must be administrative in nature. The Rule recognizes
the fact that commanders are ordinarily more concerned with
removal of contraband from units—thereby eliminating its
negative effects on unit readiness— than with prosecution of
those found in possession of it. The fact that possession of
contraband is itself unlawful renders the probability that an
inspection may be a subterfuge somewhat higher than that
for an inspection not intended to locate such material.
An inspection which has an its intent, or one of its intents,
in whole or in part, the discovery of contraband, however
slight, must comply with the specific requirements set out in
the Rule for inspections for contraband. An inspéction which
does not have such an intent need not so comply and will yield
admissible evidence if contraband is found incidentally by the
inspection. Contraband is defined as material the possession
of which is by its very nature unlawful. Material may be
declared to be unlawful by appropriate statute, regulation, or
order. For example, if liquor is prohibited aboard ship, a ship-
board inspection for liquor must comply with the rules for in-
spections for contraband.
Before unlawful weapons or other contraband may be the
subject of an inspection under Rule 313(b), there must be a
determination that “such property would affect adversely the
security, military fitness, or good order and discipline of the
command.” In the event of an adequate defense challenge
under Rule 311 to an inspection for contraband, the prosecu-
tion must establish by a preponderance that such property
would in fact so adversely affect the command. Although the
question is an objective one, its resolution depends heavily on
factors unique to the personnel or location inspected. If such
12:
contraband would adversely affect the ability of the com-
mand to complete its assigned mission in any significant way,
the burden is met. The nature of the assigned mission is
unimportant, for that is a matter within the prerogative of
the chain of command only. The expert testimony of those
within the chain of command of a given unit is worthy of
great weight as the only purpose for permitting such an-in-
spection is to ensure military readiness. The physiological or
psychological effects of a given drug on an individual are nor-
mally irrelevant except insofar as such evidence is relevant to
the question of the user’s ability to perform duties without im-
paired efficiency. As inspections are generally quantitative
examinations, the nature and amount of contraband sought is
relevant to the question of the government’s burden. The ex-
istence of five unlawful drug users in an Army division, for
example, is unlikely to meet the Rule’s test involving adverse
effect, but five users in an Army platoon may well do so.
The Rule does not require that personnel to be inspected be
given preliminary notice of the inspection although such ad-
vance notice may well be desirable as a matter of policy or in
the interests, as perhaps in gate inspections, of establishing
an alternative basis, such as consent, for the examination.
Rule 313(b) requires that inspections be conducted in a
“reasonable fashion.” The timing of an inspection and its
nature may be of importance. Inspections conducted at a
highly unusual time are not inherently unreasonable -—ex-
pecially when a legitimate reason of such timing is present.
However, a 0200 inspection, for example, may be unrea-
sonable depending upon the surrounding circumstances.
The Rule expressly permits the use of “any reasonable or
natural technological aid.” Thus, dogs may be used to detect
contraband in an otherwise valid inspection for contraband.
This conclusion follows directly from the fact that inspections
for contraband conducted in compliance with Rule 313 are
lawful. Consequently, the technique of inspection is generally
unimportant under the new rules. The Committee did,
however, as a matter of policy require that the natural or
technological aid be “reasonable.”
13a
Rule 313(b) recognizes and affirms the commander's power
to conduct administrative examinations which are primarily
non-prosecutorial in purpose. Personnel directing inspections
for contraband must take special care to ensure that such in-
spections comply with Rule 313(b) and thus do not constitute
improper general searches or subterfuges.
1984 Amendment: Much of the foregoing Analysis was
rendered obsolete by amendments made in 1984. The third
sentence of Rule 313(b) was modified and the fourth and sixth
sentences are new.
The fourth sentence is new. The Military Rules of Evidence
did not previously expressly address production of body
fluids, perhaps because of United States v. Ruiz, 23
U.S.C.M.A. 181, 48 C.M.R. 797 (1979). Ruiz was. implicitly
overruled in United States v. Armstrong, 9 M.J. 374 (C.M.A.
1980). Uncertainty concerning the course of the law of in-
spections may also have contributed to the drafter’s silence
on the matter. See. United States v. Roberts, 2 M.J. 31
(C.M.A. 1976); United States v. Thomas, 1 M.J. 397 (C.M.A.
1976). Much of the uncertainty in this area was dispelled in
United States v. Middleton, 10 M.J. 123 (C.M.A. 1981). See
also Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1988).
Despite the absence in the rules of express authority for
compulsory production of body fluids, it apparently was the
intent of the drafters to permit such production as part of in-
spections, relying at least in part of the medical purpose ex-
ception in Mil. R. Evid. 312(f). Mil. R. Evid. 312(d) applies
only to nonconsensual extraction (e.g., cateterization, draw-
ing blood) of body fluids. This was noted in the Analysis, Mil.
R. Evid. 312(d), which went on to state that “compulsory
urinalysis, whether random or not, made for appropriate
medical purposes, see Rule 312(f), and the product of such a
procedure if otherwise admissible may be used at a court-
martial.”
There is considerable overlap between production of body
fluid for a medical purpose under Mil. R. Evid. 312(f) and for
determining and ensuring military fitness in a unit, organiza-
tion, installation, vessel, aircraft, or vehicle. Frequently the
two purposes are coterminous. Ultimately, the overall health
Lda
of members of the organization is indivisible from the ability
of the organization to perform the mission. To the extent that
a “medical purpose” embraces anything relating to the
physical or mental state of a person and that person’s ability
to perform assigned duties, then the two purposes may be
identical. Such a construction of “medical purpose” would
seem to swallow up the specific rules and limitations in Mil.
R. Evid. 312(f), however. Therefore, a distinction may be
drawn between a medical purpose — at least to the extent that
that term is construed to concern primarily the health of the
individual — and the goal of ensuring the overall fitness of the
organization. For example, it may be appropriate to test—by
compulsory production of urine- persons whose duties entail
highly dangerous or sensitive duties. The primary purpose of
such tests is to ensure that the mission will be performed
safely and properly. Preserving the health of the individual is
an incident— albeit a very important one-of that purpose. A
person whose urine is found to contain dangerous drugs is
relieved trom duty during gunnery practice, for example, not
so much to preserve that person’s health as to the protect the
safety of others. On the other hand, a soldier who is ex-
tremely ill may be compelled to produce urine (or even have it
extracted) not so much so that the soldier can return to
duty — although the military has a interest in this—as for that
soldier’s immediate health needs.
Therefore, Mil. R. Evid. 313(b) provides an independent,
although often closely related basis for compulsory produc-
tion of body fluids, with Mil. R. Evid. 312(f). By expressly
providing tor both, possible confusion or an unnecesarily nar-
row construction under Mil. R. Evid. 312(f) will be avoided.
Note that all of the requirements of Mil. R. Evid. 313(b) apply
to an order to produce body fluids under that rule. This in-
cludes the requirement that the inspection be done in a
reasonable fashion. This rule does not prohibit, as part of an
otherwise lawful inspection, compelling a person to drink a
reasonable amount of water in order to facilitate production
ot a urine sample. See Unite d States v. Mitche ll. 16 M..J. 654
(N.M.C.M.R. 19883).
15a
The sixth sentence is based on United States v. Middleton,
supra, Middleton was not decided on the basis of Mil. R.
Evid. 313, as the inspection in Middleton occurred before the
effective date of the Military Rules of Evidence. The Court
discussed Mil. R. Evid. 313(b) but “did not now decide on the
legality of this Rule [or] bless its application.” United States v.
Middleton, supra at 181. However, the reasoning and the
holding in Middleton suggest that the former language in Mil.
R. Evid. 313(b) may have established unnecessary burdens
for the prosecution, yet still have been inadequate to protect
against subterfuge inspections, under some circumstances.
The former language allowed an inspection for “unlawful
weapons and other contraband when such property would af-
fect adversely the security, military fitness, or good order
and discipline of the command and when (1) there is a
reasonable suspicion that such property is present in the com-
mand or (2) the examination is a previously scheduled ex-
amination of the command.” This required a case-by-case
showing of the adverse effects of the weapons or contraband
(including controlled substances) in the particular unit,
organization, installation, aircraft, or vehicle examined. See
Analysis, Mil. R. Evid. 313(b) In addition, the examination
had to be based on a reasonable suspicion such items were
present, or be previously scheduled.
Middleton upheld an inspection which had as one of its pur-
poses the discovery of contraband -—i.e., drugs. Significantly,
there is no indication in Middleton that a specific showing of
the adverse effects of such contraband in the unit or
organization is necessary. The court expressly recognized
(see United States v. Middleton, supra at 129; ef. United
States v. Trottier, 9 M.J. 337 (C.M.A. 1980)) the adverse ef-
fect of drugs on the ability of the armed services to perform
the mission without requiring evidence on the point. Indeed,
it may generally be assumed that if it is illegal to possess an
item under a statute or lawful regulation, the adverse effect
of such item on security, military fitness, or good order and
discipline is established by such illegality, without requiring
the commander to personally analyze its effects on a case-by-
case basis and the submission of evidence at trial. The
17a
The new language removes these problems and is more
compatible with Middleton. It does not establish unnecessary
hurdles for the prosecution. A commander may inspect for
contraband just as for any other deficiencies, problems, or
conditions, without having to show any particular justifica-
tion for doing so. As the fifth sentence in the rule indicates,
any examination made primarily for the purpose of prosecu-
tion is not a valid inspection under the rule. The sixth
sentence identifies those situations which, objectively, raise a
strong likelihood of subterfuge. These situations are based on
United States v. Lange, supra and United States v. Hay, 3
M.J. 654, 655-56 (A.C.M.R. 1977) (quoted in United States v.
Middleton, supra at 127-28 n.7; see also United States v.
Brown, supra). “Specific individuals” means persons nam« *
or identified on the basis of individual characteristics, rather
than by duty assignment or membership in a subdivision of
the unit, organization, instaliation, vessel, aircraft, or vehi-
cle, such as a platoon or squad, or on a random basis. See
United States v. Harris, 5 M.J. 44 (C.M.A. 1978). The first
sentence of subsection (b) makes clear that a part of one of
the listed categories may be inspected. Cf. United States v.
King, 2 M.J. 4 (C.M.A. 1976).
The existence of one or more of the three circumstances
identified in the fifth sentence does not mean that the ex-
amination is, per se, not an inspection. The prosecution may
still prove, by clear and convincing evidence, that the purpose
of the examination was to determine and ensure security,
military fitness, and good order and discipline, and not for
the primary purpose of prosecution. For example, when an
examination is ordered immediately following a report of a
specific offense in the unit, the prosecution might prove the
absence of subterfuge by showing that the evidence of the
particular offense had already been recovered when the in-
spection was ordered and that general concern about the
welfare of the unit was the motivation for the inspection.
Also, if a commander received a report that a highly
dangerous item (e.g., an explosive) was present in the com-
mand, it might be proved that the commander's concern
about safety was the primary purpose for the examination,
not prosecution. In the case in which specific individuals are
examined, or subjected to more intrusive examinations than
lSa
others, these indicia of subterfuge might be overcome by
proof that these persons were not chosen with a view of pros-
ecution, but on neutral ground or for an independent pur-
pose —e.g., individuals were selected because they were new
to the unit and had not been thoroughly examined previously.
These examples are not exclusive.
The absence of any of the three circumstances in the fifth
sentence, while indicative of a proper inspection, does not
necessarily preclude a finding of subterfuge. However, the
prosecution need not meet the higher burden of persuasjpn
when the issue is whether the commander's purpose Was
prosecutorial, in the absence of these circumstances.
The new language provides objective criteria by which to
measure a subjective standard, 1.e., the commander’s pur-
pose. Because the standard is ultimately subjective, however,
the objective criteria are not conclusive. Rather they provide
concrete and realistic guidance for commanders to use in the
exercise of their inspection power, and for judicial authorities
to apply in reviewing the exercise of that power.
(c) Inventories. Rule 313(c) codifies prior law by recognizing
the admissibility of evidence seized via bona fide inventory.
The rationale behind this exception to the usual probable cause
requirement is that such an inventory is not prosecutorial in
the nature and is a reasonable intrusion. See, e.g., South
Dakota v. Opperman, 428 U.S. 364 (1976).
An inventory may not be used as a subterfuge search,
United States v. Mossbauer, 20 C.M.A. 584, 44 C.M.R. 14
(1971), and the basis for an inventory and the procedure
utilized may be subject to challenge in any specific case. In-
ventories of the property of detained individuals have usually
been sustained. See. e.g., United States v. Brashears, 21
C.M.A. 552, 45 C.M.R. 326 (1972).
The Committee does not, however, express an opinion as to
the lawful scope of an inventory. See, e.g., South Dakota v.
Opperman.428 U.S. 364 (1976), in which the court did not
determine the propriety of opening the locked trunk or
gloyebox during the inventory of a properly impounded
automobile.
Inventories will often be governed by regulation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.