# Petition for Writ of Certiorari — Cox v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0349%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 825 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0349%3A1. Public record. Not legal advice.