Petition for Writ of Certiorari — Taylor v. United States
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No.
GpRICE—OE—IHE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
KEITH T. TAYLOR, Petitioner
V.
UNITED STATES OF AMERICA, Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
PETITION FOR A WRIT OF CERTIORARI
RICHARD KEITH STUTZEL
Major, U.S. Marine Corps
Counsel of Record
BRIAN CHRISTOPHER LANSING
Lieutenant, Judge Advocate
General’s Corps
U.S. Naval Reserve
NAVY-MARINE CORPS APPELLATE
DEFENSE DIVISION
Washington Navy Yard
Washington, D.C. 20374-1111
(202) 433-4161
Counsel for Petitioner
December 1994
Se a a a a a
QUESTION PRESENTED
Does a so-called "unit sweep inspection" of Petitioner’s
military organization violate Petitioner’s Fourth Amendment right
against unreasonable searches and seizures when the inspection is
ordered following an anonymous report of Petitioner’s drug use to
command authorities and this information is wrongly withheld by
those individuals from the commanding officer authorizing the
inspection?
(i)
TABLE OF CONTENTS
Page
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CONSTITUTIONAL PROVISION AND REGULATIONS
a 2
RORREIEOE GF SEUSS 26 we cece ects 4
REASON FOR GRANTING THE PETITION .......... 5
Petitioner's Fourth Amendment right against
unreasonable searches and seizures was violated by
members of Petitioner’s chain of command when those
individuals, who suspected petitioner of illegal drug
use, misled Petitioner’s commanding officer into
conducting an inspection of Petitioner’s work section
where the purported inspection in actuality was a
subterfuge search because it was a deliberate attempt to
circumvent the requirement for a prior probable cause
determination.
EE OO ee eee eee ee ee 9
APPENDIX A (Opinion of the U.S. Court of
Ee ee la
APPENDIX B (Opinion of the U.S. Navy-Marine
Corps Court of Military Review) ................ 18a
iV
TABLE OF AUTHORITIES
Cases: Page
Franks v. Delaware, 438 U.S. 154 (1978) .......... 8,9
National Treasury Employees Union v. Von Raab,
ee li gd ake 5 he Se aaa ek OO 9
New York v. Burger, 482 U.S. 691 (1987) .......... 5,9
Skinner v. Railway Labor Executives’ Association,
re eee ee a ae 9
United States v. Barnett, 18 M.J. 166
ee eee ee eee eee ee eee 6
United States v. Bickel, 30 M.J. 277 (C.M.A. 1990) ... 5,9
United States v. Flowers, 23 M.J. 647
a Sy er ee ee 5
United States v. Gardner, 41 M.J. 189 (C.M.A. 1994) oo
United States v. House, 604 F.2d 1135 (8th Cir. 1979) ... 8
United States v. Johnston, 24 M.J. 271 (C.M.A. 1987) 9
United States v. Lange, 15 U.S.C.M.A. 486,
p Eee Re Fee Pe eee eee eee 6
United States v. Lefkowitz, 618 F.2d 1313 (9th Cir. 1980) . 8
United States v. Taylor, 41 M.J. 168 (C.M.A. 1994) .. 1,4,7
United States v. Taylor, No. 91-0669
(N.M.C.M.R. February 24, 1993) ............ 2,4
United States v. Thatcher, 28 M.J. 20 (C.M.A. 1989) Scan
United States v. Vasquez, 605 F.2d 1269 (2d Cir. 1979) .. 8
United States v. Williams, 737 F.2d 594 (7th Cir. 1984) 8
Constitutional Provision:
U.S. Constitution, Amendment IV ............. 2,5,10
Statutes:
Asters 36, ULI. 19 UBC. OGG vn cc cccviccnes 5
Article 67(aX(3), U.C.M.J., 10 U.S.C. § 867(aX3) ....... 4
Article 112a, U.C.M.J., 10 U.S.C.§ 912a ............ 4
Pe Ss SD a 5 Fk a ee ee oe ec es 2
Military Rules of Evidence:
Military Rule of Evidence 311(a), Manual for Courts-
Martial, United States, 1984 ............... 2,5
Military Rule of Evidence 313(b), Manual for Courts-
Martial, United States, 1984 ............... 3,5
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
KEITH T. TAYLOR, Staff Sergeant
United States Marine Corps,
Petitioner
Vv.
UNITED STATES OF AMERICA,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
The Petitioner, Keith T. Taylor, respectfully prays that a
writ of certiorari issue to review the judgment and opinion of the
United States Court of Military Appeals' rendered in this
proceeding on September 30, 1994.
OPINIONS BELOW
The opinion of the United States Court of Military
Appeals, United States v. Taylor, 41 M.J. 168 (C.M.A. 1994), is
reprinted as Appendix A.
' The United States Court of Military Appeals has been renamed the United
States Court of Appeals for the Armed Forces. All cases relevant to this petition
were decided before the name change, so the original name of the court is used
in this petition.
. (d)
2
The opinion of the United States Navy-Marine Corps Court
of Military Review’, United States v. Taylor, No. 91-0669
(N.M.C.M.R. February 24, 1993), is reprinted as Appendix B.
JURISDICTION
/
The United States Court of Military Appeals affirmed the
decision of the United States Navy-Marine Corps Court of Military
Review on September 30, 1994. Title 28 U.S.C. § 1259(3)
provides jurisdiction in this case and entitles Petitioner to seek
review of the United States Court of Military Appeals’ decision.
CONSTITUTIONAL PROVISION
AND REGULATIONS INVOLVED
The Fourth Amendment provides:
——The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated; and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched and the persons or things to be seized.
Military Rule of Evidence 311(a) provides:
Evidence obtained as a result of an unlawful
search or seizure made by a person acting in a
governmental capacity is inadmissible against the
accused if: (1) Objection. The accused makes a
timely motion to suppress or an objection to the
? The United States Navy-Marine Corps Court of Military Review has been
renamed the United States Navy-Marine Corps Court of Criminal Appeals. All
cases relevant to this petition were decided before the name change, so the
original name of the court is used in this petition.
3
evidence under this rule; and (2) Adequate
interest. The accused had a reasonable expectation
of privacy in the person, place or property
searched; the accused had a legitimate interest in
the property or evidence seized when challenging
a seizure; or the accused would otherwise have
grounds to object to the search or seizure under
the Constitution of the United States as applied to
members of the armed forces.
Military Rule of Evidence 313(b) provides, in pertinent part:
An "inspection" is an examination of the whole or
part of a unit . . . to determine and to ensure the
security, military fitness, or good order and
discipline of the unit... . An order to produce
body fluids, such as urine, is permissible in
accordance with this rule. An examination made
for the primary purpose of obtaining evidence for
use in a trial by court-martial or in other
disciplinary proceedings is not an inspection
within the meaning of this rule. If the purpose of
an examination is to locate weapons or
contraband, and if: (1) the examination was
directed immediately following a report of a
specific offense in the unit . . . and was not
previously scheduled; (2) specific individuals are
selected for examination; or (3) persons examined
are subjected to substantially different intrusions
during the same examination, the prosecution must
prove by clear and convincing evidence that the
examination was an inspection within the meaning
of this rule.
STATEMENT OF THE CASE
Petitioner, an active duty Marine, was charged with
wrongfully using marijuana within the period of December | to
December 12, 1989, in violation of Article 112a, Uniform Code of
Military Justice (U.C.M.J.), 10 U.S.C. § 912a. The evidence
consisted of a positive result for marijuana in a urinalysis test
administered to Petitioner pursuant to a purported inspection of his
work section, the S-1 section of Headquarters Company, Fifth
Marine Regiment, First Marine Division. At his Special Court-
Martial, Petitioner moved to suppress the results of the urinalysis
test on the grounds that the inspection conducted on his work
section was a subterfuge to allow his urine to be seized without a
probable cause search because anonymous allegations of drug use
had been made against him. Petitioner’s motion to suppress the
results was denied by the military judge.
Notwithstanding his pleas to the contrary, Petitioner was
found guilty of the wrongful use of marijuana. Petitioner was
sentenced to hard labor without confinement for 45 days, reduction
to the lowest enlisted pay grade, and to be discharged from the
Marine Corps with a bad-conduct discharge. The sentence was
approved by the convening authority.
The United States Navy-Marine Corps Court of Military
Review affirmed the findings and sentence. United States v.
Taylor, No. 91-0669 (N.M.C.M.R. February 24, 1993). In its
unpublished opinion, the court held by a two-to-one majority that
the order to conduct the urinalysis test on the members of
Petitioner's work section was not a subterfuge search for
contraband.
On appeal, pursuant to Article 67(a\(3), U.C.M.J., 10
U.S.C. § 867(a)(3), the United States Court of Military Appeals
affirmed Petitioner’s conviction and sentence. United States v.
Taylor, 41 M.J. 168 (C.M.A. 1994). In a three-to-two decision,
the court held that the urinalysis test conducted on the members of
Petitioner’s work section was not a subterfuge search for
contraband.
REASON FOR GRANTING THE PETITION
The protections of the Fourth Amendment are applied to
the military through the President’s promulgation of Rules of
Evidence pursuant to Article 36(a), Uniform Code of Military
Justice, 10 U.S.C. § 836(a). United States v. Taylor, 41 M.J. 168,
170 (C.M.A. 1994). Military Rule of Evidence 31 1(a) provides for
the suppression of evidence seized as a result of an unlawful search
or seizure. If the evidence is seized based upon a suspicion of
criminal activity, the suspicion must rise to the level of probable
cause. The evidence must be seized pursuant to an authorization
to search a specific person or place for specific evidence.
Improper attempts to circumvent the requirement for a probable
cause determination in such cases, or "subterfuge" searches,
constitute an illegal seizure, and will result in suppression of the
evidence at trial. United States v. Bickel, 30 M.J. 277 (C.M.A.
1990); cf New York v. Burger, 482 U.S. 691 (1987).
A legitimate military inspection, on the other hand, is
outside the parameters of probable cause searches. Military Rule
of Evidence 313(b) governs the admissibility of evidence seized
pursuant to an inspection. The basic distinction between a military
search and an inspection, as it pertains to evidence later used in a
court-martial, is the underlying rationale for the seizure. If the
seizure is based primarily upon a desire to procure evidence against
an individual for use in a prosecution, then it must proceed from
probable cause or some other legitimate exception to that
requirement. If the seizure has a legitimate inspection purpose,
then the later use of the evidence in a court-martial is permitted.
United States v. Flowers, 23 M.J. 647 (N.M.C.M.R. 1986).
However, when a contraband inspection focuses upon a particular
unit or portion of that unit to circumvent the requirement for
procuring a probable cause search of one of the members of that
unit, there must be clear and convincing evidence that the
inspection was not a subterfuge for a search. United States v.
Thatcher, 28 M.J. 20 (C.M.A. 1989).
In Petitioner’s case, the commanding officer of Petitioner’s
unit, Captain Lindsay, had decided to conduct an inspection of part
of his unit, but he did not select any particular part of the unit for
6
the inspection. On December 7, 1989, the unit Substance Abuse
Control Officer (SACO), Sergeant Ramon, had received an
anonymous telephone call that Petitioner had used marijuana.
Sometime the next day, December 8, or the following Monday,
December 11, he had relayed this information to the officer-in-
charge of the S-1 section, Captain Jackson. On December 11,
Captain Jackson called Captain Lindsay and encouraged selection
of the S-1 section, of which Petitioner was part, for the urinalysis
inspection. Captain Jackson did not inform Captain Lindsay of the
anonymous tips regarding Petitioner. Since volunteering a section
for a urinalysis inspection was highly unusual, the call aroused
suspicions on the part of Captain Lindsay, and he spoke to
Sergeant Ramon about them. He specifically asked Sergeant
Ramon, "Is there anything special going on in the S-1 section that
I should know about?" Sergeant Ramon replied, "I don’t think I’m
at liberty of discussing this with you at this particular time, sir."
Without pursuing his questioning any further, Captain Lindsay then
selected the S-1 section for a urinalysis inspection on the next day,
December 12. On the day of the urinalysis, Captain Jackson
discovered that Petitioner was at home recuperating from having
had three wisdom teeth extracted. Captain Jackson then telephoned
Petitioner and ordered him back to the base to prove that he was
authorized to stay home. When Petitioner showed Captain Jackson
the authorization he had received from his dentist, instead of
allowing him to go home, Captain Jackson ordered Petitioner to
provide a urine sample. The fact that Captain Jackson took great
effort to make certain that Petitioner provided a urine sample,
regardless of the fact that Petitioner was exempt from his duties,
demonstrates that Petitioner was specifically targeted for the
urinalysis by his superiors.
The underlying conduct of those executing inspections
must be reviewed in determining the legitimacy of the inspection.
United States v. Barnett, 18 M.J. 166 (C.M.A. 1984). The actions
of the superiors in Petitioner’s chain-of-command demonstrate that
the purported inspection of Petitioner’s urine, conducted under the
guise of a routine urinalysis test, was, in actuality, nothing more
than a pretext for obtaining evidence of Petitioner’s reputed drug
use. The facts in this case are not unlike the scenario presented in
United States v. Lange, 15 U.S.C.M.A. 486, 35 C.M.R. 458
7
(1965), in which the Court of Military Appeals held that a "shake-
down" inspection of a military barracks was not a valid inspection
because it was conducted only after a squadron administrative
officer had learned of a theft from the barracks. In Petitioner’s
case, the urinalysis sweep of Petitioner’s work section was urged
by Sergeant Ramon and Captain Jackson only after these
individuals received an anonymous tip that Petitioner was using
illegal drugs. Because the urinalysis was conducted with a view
toward obtaining evidence of unlawful drugs in Petitioner’s urine
sample, it is clear that the motive shared by Sergeant Ramon and
Captain Jackson was to search for evidence to be used in a
criminal prosecution, rather than to test the general readiness of the
S-1 section. Accordingly, the evideiice obtained against Petitioner
was seized by way of a search, not an inspection.
The lower courts, however, held that the principal focus,
in determining whether the inspection was valid, was on the
conduct of Captain Lindsay, since he ultimately ordered the
inspection of the S-1 section. Captain Lindsay, the lower courts
held, was isolated from any information implicating Petitioner as
a drug user, since no one had informed Captain Lindsay of the
anonymous tips. Therefore, Captain Lindsay’s ultimate decision
to inspect the S-1 section was not a pretext to seize Petitioner’s
urine. However, two important facts belie this conclusion: Captain
Lindsay saw the need to question Captain Jackson’s- motive for
volunteering his section for the urinalysis; and, upon questioning
Sergeant Ramon about his suspicions, he was given a patently
evasive answer which he elected not to pursue further. Thus, the
lower courts’ conclusion that Captain Lindsay’s suspicions were
satisfied by his exchange with Sergeant Ramon is insupportable.
It was preposterous that the commanding officer’s concerns were
allayed by the misleading information provided; nevertheless, he
selected the S-1 section for the inspection. Taylor, 41 M.J. 168,
at 175 (Wiss, J., dissenting). The evidence shows that Captain
Lindsay clearly had reason to suspect that Petitioner was using
drugs, which negates the legitimacy of labelling the urinalysis as
merely an innocent "inspection" of Petitioner’s work section.
Even if the lower court’s holding that the commanding
officer was not aware of the information about Petitioner is
accepted, his order to inspect the S-1 section falls outside the
8
parameters of a legitimate inspection because his subordinates
knowingly withheld information from him regarding Petitioner’s
alleged drug use, while manipulating his decision to include
Petitioner’s work section, and therefore Petitioner, in the
inspection. The Court of Military Appeals held that because
Captain Lindsay never received any information implicating
Petitioner, a wall of ignorance existed around him; therefore, his
choice of the S-1 shop was not tainted by the anonymous
information known to Captain Jackson and Sergeant Ramon. /d.
at 172. However, Captain Jackson and Sergeant Ramon
intentionally misled Captain Lindsay into believing that there was
no special reason to pinpoint the S-1 shop, despite the fact that
they had specific reason to pinpoint Petitioner, a member of that
shop, based upon the reports of his drug usage. By doing so they
improperly influenced the commander’s inspection decision. In
Franks v. Delaware, 438 U.S. 154 (1978), this Court held that an
essential statement made in a police affidavit for a search warrant
that is a deliberate falsehood, or made in deliberate disregard for
the truth, voids the warrant. Franks thereby opened the door to
attacks on the veracity of the facts underlying a probable cause
determination by focusing on the improper conduct of the "police"
authorities, and by admonishing that the fruit of such searches
would not be admissible in evidence. Furthermore, several Federal
circuits have held that Franks applies to omissions from affidavits,
if those omissions are material. United States v. Williams, 737
F.2d 594 (7th Cir. 1984); United States v. Lefkowitz, 618 F.2d
1313 (9th Cir. 1980); United States v. Vasquez, 605 F.2d 1269 (2d
Cir. 1979); United States v. House, 604 F.2d 1135 (8th Cir. 1979).
Although Petitioner’s case does not involve a probable cause
determination per se, it involves an analogous situation in which
a probable cause determination should have been made by the
commanding officer, but was precluded by the actions of his
subordinates.
Since positive results from a properly ordered inspection
would be admissible in a trial by court-martial, the facts
surrounding the authorization of the inspection must be carefully
scrutinized to ensure that the inspection is not being used to
circumvent the requirement for a prior probable cause
determination. The deliberate omission of material matters by
9
Captain Jackson and Sergeant Ramon while advising Captain
Lindsay on which section to choose for the urinalysis sweep
exhibits disregard for the whole truth on the part of those in a
position to influence the commanding officer’s decision to order an
inspection of a work section. The fact that these individuals were
fully aware that this work section contained a suspected drug user,
of whose identity they were well aware, evinces a deliberate
attempt to circumvent the requirement to obtain a probable cause
search authorization concerning that suspect. Moreover, the
actions of these two individuals amounts to official misconduct by
military command authorities with responsibilities analogous to
police authorities in this situation. The spirit of this Court’s
decision in Franks precludes these subordinates from intentionally
misleading their commanding officer into selecting Petitioner’s
work section for a unit inspection when they had material
information which they should have presented to the commanding
officer, but intentionally and deceptively omitted. The Fourth
Amendment’s requirement for a search authorization based upon
probable cause is intended to prevent the very type of
governmental violation of fundamental individual rights exhibited
in this case. Therefore, the lower courts have eroded the
protection against unreasonable searches and seizures available to
service members through the Fourth Amendment and the Military
Rules of Evidence by disregarding this Court’s precedence set forth
in Franks.
CONCLUSION
Inspections, both military and civilian, are proper under the
Fourth Amendment. Bickel, 30 M.J. at 282; United States v.
Gardner, 41 M.J. 189 (C.M.A. 1994); Skinner v. Railway Labor
Executives’ Association, 489 U.S. 602 (1989); National Treasury
Employees Union v. Von Raab, 489 U.S. 656 (1989). However,
when a so-called inspection is in reality a pursuit of specific
evidence against a particular individual, it is a search subject to the
requirements of the Fourth Amendment. New York v. Burger, 482
U.S. 691 (1987); United States v. Johnston, 24 M.J. 271 (C.M.A.
1987).
10
Petitioner’s case presents a fundamental question of
Constitutional Law which was resolved against Petitioner in
sharply divided opinions in both of the lower appellate courts:
Does a procedure in which urine is seized from a servicemember
where a previous anonymous complaint about the servicemember’s
drug use has been received, and the information is then used
against the servicemember both in ordering a unit sweep of his
work section, and in singling him out to provide the sample,
constitute a valid military inspection under the Fourth Amendment?
This is a significant question which, in view of the ever-increasing
drug testing in our society, needs to be resolved. This issue bears
directly on the ability of the military to fairly maintain good order
and discipline while ensuring the promotion of justice for service
members. Accordingly, this Court should issue a writ of certiorari.
Respectfully submitted,
RICHARD KEITH STUTZEL
Major, U.S. Marine Corps
Counsel of Record
BRIAN CHRISTOPHER LANSING
Lieutenant, Judge Advocate
General’s Corps
U.S. Naval Reserve
NAVY-MARINE CORPS APPELLATE
DEFENSE DIVISION
Washington Navy Yard
Building 111
Washington, D.C. 20374-1111
(202) 433-4161
Counsel for Petitioner
December 1994
APPENDICES
APPENDIX A
U.S. COURT OF MILITARY APPEALS
No. 93-0595
NMCM 91 0669
UNITED STATES, Appellee,
V.
KEITH T. TAYLOR, Appellant.
Argued March 16, 1994
Decided September 30, 1994
For Appellant: Lieutenant David P. Sheldon, JAGC, USNR
(argued)
For Appellee: Lieutenant J.L. Epperson, JAGC, USNR
(argued); Colonel T.G. Hess, USMC, Commander S.A. Stallings,
JAGC, USN, and Captain Brett D. Barkey, USMC (on brief).
Military Judge: A.M. Crebbin
Opinion of the Court
CRAWFORD, Judge:
Contrary tc his pleas, appellant was convicted of wrongful use
of marijuana, in violation of Article 112a, Uniform Code of
Military Justice, 10 USC § 912a. The convening authority
approved the sentence of a bad-conduct discharge, 45 days’ hard
(la)
2a
labor without confinement,’ and reduction to the lowest enlisted
grade. The Court of Military Review affirmed the findings and
sentence in an unpublished opinion. We granted review on the
following issue:
WHETHER APPELLANT’S COMMAND
CONDUCTED A SUBTERFUGE SEARCH
WHEN’ SEIZING APPELLANT’S URINE
WHICH WAS PURPORTEDLY SEIZED
PURSUANT TO AN INSPECTION.
We hold that appellant’s command complied with Mil.R.Evid.
313(b), Manual for Courts-Martial, United States, 1984, and did
not conduct a subterfuge search in directing a_ urinalysis
examination which resulted in seizure of appellant’s urine.
FACTS
Appellant was an administrator in the S-1 section of the Sth
Marine Regiment, Ist Marine Division, Camp Pendleton,
California. On December 7, 1989, he had three wisdom teeth
removed and was placed on 24-hours of bed rest. The
commissioned officer in charge of the S-1 section was Captain
(Capt.) Jackson. The Marines of the S-1 section fell under the
command of Capt. Lindsay, the headquarters company commander
of the Sth Marine Regiment.
On the same date that appellant had his teeth pulled, Sergeant
(Sgt.) Ramon, the Regimental Substance Abuse Control Officer
(SACO), received an anonymous telephone message on his
answering machine that someone in the S-1 section had been using
drugs.
On the following day, Friday, December 8, 1989, Capt. Lindsay
made a decision to order a random urinalysis test the following
week. Capt. Lindsay was not aware of the anonymous tip received
'The court below erroneously stated this as confinement. Unpub. op. at 1.
3a
by Sgt. Ramon. Capt. Lindsay told his executive officer to tell
Sgt. Ramon about his decision to order the random urinalysis.
Capt. Lindsay had several responsible and legitimate reasons for
ordering a urinalysis inspection. First, Sgt. Ramon, an experienced
SACO, was scheduled to separate from the service and Capt.
Lindsay wanted to conduct the inspection prior to his separation.
Second, with the Christmas holiday season approaching, Capt.
Lindsay wanted to deter use of drugs in his command. And
finally, he wanted to comply with Marine Corps directives
requiring urinalysis testing. Capt. Lindsay had only a limited
number of vials and had not yet decided how to select the section
to be tested. He discussed the options with Sgt. Ramon.
Sometime that same day Sgt. Ramon told Capt. Jackson about the
anonymous call he had received about drug use by someone in the
S-1 section.
On Monday, December 11, 1989, Sgt. Ramon told Capt. Jackson
that a former member of the S-1 section had reported to him that
appellant was a drug user. Thereafter, the Court of Military
Review found:
Captain Jackson called Captain Lindsay and asked when
Captain Lindsay planned on doing urinalysis testing.
Captain Lindsay replied, "Well, this week." Captain
Jackson responded, "How do you plan to do it?” After
Captain Lindsay replied, "It’s going to be random,"
Captain Jackson stated, "Well, what about the S-1
section?" Captain Lindsay then said, "Fine, that fits right
along, and why not just go ahead and get it out of the
way." (R. 46). During the conversation, Captain Jackson
did not tell Captain Lindsay about information he had
received from Sergeant Ramon....
Unpub. op. at 2-3.
Capt. Lindsay testified that no one had ever volunteered a
section before. With his suspicion perhaps raised, Capt. Lindsay
asked Sgt. Ramon, "Is there anything special going on in the S-1
shop that I should know about?" Ramon replied to the effect of
4a
"Not at this time." After this conversation on Monday, December
11, Capt. Lindsay then directed that the SACO conduct a urinalysis
sweep of the S-1 section the next day.
That same Monday afternoon appellant’s noncommissioned
officer told him to go home because his face was swollen and he
was not feeling well. Since his pain persisted, at 8:00 p.m.
appellant went to the dental clinic and was given a pain killer and
a "no duty" chit which excused him from duty until 8:00 a.m.,
Wednesday, December 13, 1989.
On Tuesday, December 12, 1989, appellant remained at home
based on his excusal from work because of a "no duty" chit.
During the early afternoon Sgt. Ramon told Capt. Jackson that he
had received another report that appellant had smoked marijuana
earlier with a female friend and had requested "Gold Seals,"
supposedly a diuretic to conceal drugs in the urine. At
approximately 3:00 p.m. Capt. Jackson, not being sure whether
appellant had a "no duty" chit, told appellant’s NCOs to have
appellant come to work. Appellant did. At this time he was told
to provide the urine specimen that formed the, basis for his
conviction.
DISCUSSION
As we stated in United States v. Lopez, 35 M.J. 35, 39 (CMA
1992):
The military, like the Federal and state systems, had
hierarchical sources of rights. These sources are the
Constitution of the United States; Federal Statutes,
including the Uniform Code of Military Justice; Executive
Orders containing the Military Rules of Evidence;
Department of Defense Directives; service directives; and
Federal common law. Unlike the Federal Rules of
Evidence, Section III of the Military Rules of Evidence
"codifies" the constitutional rules. Normal rules of
statutory construction provide that the highest source
authority will be paramount, unless a lower source creates
Sa
rules that are constitutional and provide greater rights for
the individual; for example, Mil.R.Evid. 305(e) as to
notice to counsel, or Article 31, UCMJ, 10 USC § 831,
requiring warnings to suspects not in custody.
The paramount source is the U.S. Constitution. The Fourth
Amendment to the Constitution provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
The next applicable source is the Uniform Code of Military
Justice, 10 USC §§ 801-934. Pursuant to Article 36(a), UCMJ, 10
USC § 836(a), the President has promulgated Rules of Evidence.
Mil.R.Evid. 311(a) sets forth the modern understanding of the
Fourth Amendment by stating that "[e]vidence obtained as a result
of an unlawful search or seizure made by a person acting in a
governmental capacity is inadmissible against" a person with
standing to challenge its admissibility.
Mil.R.Evid. 311 through 317, like the decisions of the Supreme
Court, divide Fourth Amendment issues between coverage (that is,
when the Fourth Amendment is applicable) and protections.
Mil.R.Evid. 314(d) provides that "[g]overnment property may be
searched .. . unless the person to whom the property is issued or
assigned has a reasonable expectation of privacy therein at the time
of the search." See also United States v. Wooten, 34 M.J. 141
(CMA 1992) (no expectation of privacy in bank records): United
States v. Parrillo, 34 M.J. 112 (CMA 1992) (overheard telephone
call not a search); United States v. Schmitt, 33 M.J. 24 (CMA
1991) (automobile may have been abandoned); United States v.
Britton, 33 M.J. 238 (CMA 1991) (no expectation of privacy in
another’s locker even though not used for 5 months); see United
States v. Thatcher, 28 M.J. 20, 23 (CMA 1989).
6a
We have discussed the privacy interest in numerous cases before
this Court. See United States v. McCarthy, 38 M.J. 398 (CMA
1993); United States v. Middleton, 10 M.J. 123 (CMA 1981). As
we indicated in Middleton:
In considering what expectations of privacy a service-
member may reasonably entertain concerning military
inspections, we must recognize that such inspections are
time-honored and go back to the earliest days of the
organized militia.
10 M.J. at 127.
In McCarthy we stated:
We need not determine the outer limits of appellant’s
"reasonable" expectation of privacy. Suffice it to say that
he could not reasonably expect to avoid apprehension in
this case by retreating to his room.
38 M.J. at 403.
We also indicated in Lopez that "the Supreme Court has never
expressly applied the Bill of Rights to the military, but has
assumed they applied." Jd. at 41.’
7As the Court stated in Davis v. United States, 114 S.Ct. 2350, 2354 n.*
(1994):
We have never had occasion to consider whether the Fifth Amendment
privilege against self incrimination, or the attendant right to counsel
during custodial interrogation, applies of its own force to the military, and
we need not do so here. The President, exercising his authority to
prescribe procedures for military criminal proceedings, see Art. 36(a),
UCMJ, 10 U.S.C. § 836(a), has decreed that statements obtained in
violation of the Self-Incrimination Clause are generally not admissible at
trials by court-martial. Mil.R.Evid 304(a) and (c)(3). Because the Court
of Military Appeals has held that our cases construing the Fifth
Amendment right to counsel apply to military interrogations and control
the admissibility of evidence at trials by court-martial, see, e.g.,
United States. v. McLaren, 38 M.J. 112, 115 (1993); United States
‘
7a
This is not only of academic importance, but also it is important
to the President in deciding what rules should be applied to the
military.’ Because of the "special needs" in the military, Skinner
v. Railway Labor Executives Ass'n, 489 U.S. 602, 628 (1989) (case
for testing without individualized suspicion is "compelling"); cf
New Jersey v. T.L.O., 469 U.S. 325 (1985) (inspection based upon
a reasonable suspicion is appropriate), the Fourth Amendment may
not apply in total. See United States v. McCarthy, supra. Judge
Cox’s view concerning the reasonable commander and the
reasonableness clause of the Fourth Amendment may apply. That
view is as follows:
The Fourth Amendment only protects military members
against unreasonable searches within the context of the
military society. Something as drastic as a "shakedown
inspection" can only be justified in the military because of
the overriding need to maintain an effective force.
Likewise, preemptive strikes on drugs and other dangers
can only be reasonable because of their impact on the
v. Applewhite, 23 M.J. 196, 198 (1987), and the parties do not contest
this point, we proceed on the assumption that our precedents apply to
courts-martial just as they apply to state and federal criminal
prosecutions.
>The discussion concerning application of the Fourth Amendment is more than
an academic discussion. It relates directly to the bright-line rules set forth in
Section III of the Military Rules of Evidence, Manual for Courts-Martial, United
States, 1984. While these rules are helpful for commanders, promulgating the rules
can be a very tedious process, taking sometimes up to 4 years to promulgate a rule.
Draft Mil.R.Evid. 305(e), which seeks to conform military practice to Minnick v.
Mississippi, 498 U.S. 146 (1990) and McNeil v. Wisconsin, 111 S.Ct. 2204
(1991), has not been approved as of yet. Judge Cox has emphasized his concern
about the rules in United States v. Lopez, 35 M.J. 35, 42 (CMA 1992) (Cox, J.,
concurring with modest reservations), and United States v. Alexander, 34 M.J.
121, 127 (CMA 1992) (Cox, J., concurring in the result). Finally, this Court in
United States v. Middleton, 10 M.J. 123 (CMA 1981), while recognizing
Mil.R.Evid. 313(b) did not set forth why the rule was promulgated and the impact
of Middleton on the prior cases--United States v. Roberts, 2 M.J. 31 (CMA
1976), and United States v. Thomas, 1 M.J. 397 (CMA 1976). See also
Lederer and Borch, Does the Fourth Amendment Apply to the Armed Forces?,
3 William and Mary Bill of Rights J. 219 (Summer 1994).
8a
mission. The United States Court of Military Appeals has
the obligation to ensure that inspections, searches, and
seizures in the military society are reasonable in their
inception and in their conduct. This means that
commanders must have rules which are honest, simple,
forthright, and easy for both the commander and the
command to understand.
United States v. Lopez, 35 M.J. at 45 (citations omitted) (Cox, J.,
concurring with modest reservations).
Unless there are changes to the Rules, we are bound by
Mil.R.Evid. 313(b), which provides in part:
An "inspection" is an examination of the whole or part of
a unit ... to determine and to ensure the security, military
fitness, or good order and discipline of the unit .... An
order to produce body fluids, such as urine, is permissible
in accordance with this rule. An examination made for the
primary purpose of obtaining evidence for use in a trial by
court-martial or in other disciplinary proceedings is not an
inspection within the meaning of this rule. If a purpose of
an examination is to locate weapons or contraband, and if:
(1) the examination was directed immediately following a
report of a specific offense in the unit, ... and was not
previously scheduled; (2) specific individuals are selected
for examination; or (3) persons examined are subjected to
substantially different intrusions during the same
examination, the prosecution must prove by clear and
convincing evidence that the examination was an
inspection within the meaning of this rule.
In United States v. Bickel, 30 M.J. 277 (CMA 1990), we upheld
the constitutionality of this provision.
But Mil.R.Evid 313(b), which makes a distinction between
administrative inspections for prosecutorial purposes, is probably
more restrictive than it need be. See e.g., Michigan Department of
State Police v. Sitz, 496 U.S. 444 (1990); National Treasury
9a
Employees Union v. Von Raab, 489 U.S. 656 (1989); Skinner v.
Railway Labor Executives Ass'n, supra. Cf Griffin v. Wisconsin,
483 U.S. 868 (1987); New Jersey v. T.L.O., supra.
The threshold question in this case is whether Capt. Lindsay’s
decision to order a urinalysis examination was a subterfuge search
for contraband rather than a lawful inspection. Our principal focus
is on the role of Capt. Lindsay. He decided to order a random
urinalysis of his unit because he knew that the unit’s experienced
SACO was scheduled to separate from the service; he wanted to
deter drug use during the Christmas holidays; and he wanted to
comply with Marine Corps policy and directives requiring
urinalysis testing. When Capt. Lindsay made his decision to
conduct the urinalysis examination, there had not been a "report of
a specific offense in the unit." There were no "specific individuals
... selected for examination" or "substantially different intrusions”
made a part of this urinalysis testing. Further, an inspection may
include examination of a "whole or part of a unit." Thus, we
conclude that Capt. Lindsay’s decision to order a urinalysis
examination was a legitimate action to conduct a lawful inspection
in compliance with Mil.R.Evid. 313(b).
We are mindful that Sgt. Ramon and Capt. Jackson had received
information linking appellant to drug use. However, there is no
evidence that either of them conveyed this information to Capt.
Lindsay. At the time of Jackson’s phone call to Lindsay during
which he volunteered the S-1 section for testing, Jackson was in
receipt of two pieces of information. First, he was aware that Sgt.
Ramon had received an anonymous tip that someone in the S-1
section had used drugs. And second, he was also aware that Sgt.
Ramon had thereafter received an allegation that appellant was a
drug user. We need not answer the question whether these two
pieces of information constitute "a report of a specific offense in
the unit.” There is no indication that either of these allegations
were known to Capt. Lindsay. Further, Capt. Lindsay’s decision
to accept Capt. Jackson’s suggestion to test the S-1 section
followed Lindsay’s legitimate decision to conduct a urinalysis
inspection. While Capt. Lindsay testified he pinpointed the S-1
section after he talked to Capt. Jackson, the primary purpose of
10a
ordering the inspection was to "deter and to disencourage personnel
from using ... drugs." There is no indication of a so-called "wink
and a nod" (see __- M.J. at (1) (Wiss, J., dissenting) between
Capt. Lindsay, Capt. Jackson, and Sgt. Ramon to create a pretext
for an inspection. And finally, we will not impute the knowledge
of either Capt. Jackson or Sgt. Ramon to Capt. Lindsay. In
conclusion, we hold that, under the facts of this case, there was a
proper inspection of part of a unit by a commander and, therefore,
the evidence obtained through that inspection is admissible.
The decision of the United States Navy-Marine Corps Court of
Military Review is affirmed.
Judges COX and GIERKE concur.
SULLIVAN, Chief Judge (dissenting):
A
The granted issue in this case 1s:
WHETHER APPELLANT’S COMMAND
CONDUCTED A SUBTERFUGE SEARCH
WHEN SEIZING APPELLANT’S URINE
WHICH WAS PURPORTEDLY SEIZED
PURSUANT TO AN INSPECTION.
An initial question arises from the majority opinion concerning its
legal basis (or lack thereof) for deciding this issue. Appellant
argues that subterfuge searches are prohibited by Mil.R.Evid. 313,
Manual for Courts-Martial, United States, 1984, and our case law,
and their fruits are inadmissible at courts-martial. See Mil.R.Evid.
311 and 315; United States v. Johnston, 24 M.J. 271 (CMA 1987).
In addition, I note that administrative inspections which are mere
pretexts to search for criminal evidence are unreasonable searches
for purposes of the Fourth Amendment. New York v. Burger, 482
U.S. 691, 716 n.27 (1987). Accordingly, I must disassociate
myself from the majority opinion’s resolution of the granted issue
without reference to military or civilian case law. ___ M.J. at
lla
(10-11) .
My next concern is the factual basis of the majority opinion-
concerning the legitimacy of the challenged inspection. The court
below commented on Captain Jackson’s role both before and after
the decision to inspect had been made by Captain Lindsay, as
follows:
Obviously, Captain Lindsay’s decision to select the S-1
section for urinalysis testing was influenced to some extent
by Captain Jackson’s telephone call to him. However, that
fact is not dispositive of the issue. At the time of the
conversation, Captain Lindsay had already decided to
conduct random testing. Al// the call did was to subtlety
suggest to him that he should select the S-1 for testing; it
in no way singled out the appellant for testing.
* * *
In this case, the commander simply decided that an
entire section would be tested. He did so without
knowledge that two members of the section, Captain
Jackson and Sergeant Ramon, suspected that another
member of the section had illegally used drugs. We deem
it of no significance that the appellant was ordered to
report to his work section from his quarters after receiving
a "no duty" chit from a dental officer. In our opinion,
Captain Jackson had authority to order the appellant, his
subordinate, to report to work for urinalysis testing despite
the appellant's receipt of a "no duty" chit from his dentist.
Additionally, we observe that Captain Jackson had
investigated the appellant’s situation on 12 Dec 1989 and
been advised by someone at the dental clinic that appellant
had not been to the dental clinic. Although not pivotal to
our decision, this fact manifests to us that Captain Jackson
was diligently pursuing his duties as an officer of Marines
in an appropriate manner, albeit he received "bad scoop"
from someone at the dental clinic.
12a
At the bottom line, this is not a case where a
servicemember has been unreasonably singled out for
urinalysis testing by a commander who merely suspects
drug use. This appellant was required to do only what was
required of all Marines in his work section...
Unpub. op, at 4-5 (emphasis added.) I disagree with the decision
of the majority to disregard these facts as irrelevant to the granted
issue.
The key question to me in this case is whether the knowledge
and conduct of Captain Jackson can be considered on the issue of
whether a "subterfuge" search occurred. The majority’s opinion
holds that these facts are not relevant since they were not
communicated to Captain Lindsay (__ MJ. at 11) and he is "our
principal focus" (_ | M.J. at 10) under Mil.R.Evid. 313(b).
Principal, however, does not mean exclusive; accordingly, I cannot
join the majority’s ultimate conclusion of irrelevance. Moreover,
our case law and civilian case law make clear that it is necessary
to consider the conduct of those executing the inspection in
determining whether it was a legitimate administrative inspection
or a subterfuge for a search for criminal evidence. See United
States v. Barnett, 18 M.J. 166 (CMA 1984) (mere presence of law
enforcement agents who suspect appellant of crime not sufficient
to turn regular inventory into subterfuge search); United States v.
Thatcher, 28 M.J. 20, 25-26 (CMA 1989) (conduct of persons
conducting inspection after searching accused’s spaces relevant on
question of whether subterfuge search occurred); Winters v. Board
of County Commissioners, 4 F.3d 848, 854-55 (10th cir. 1993),
cert. denied, 114 S.Ct. 1539 (1994); United States v. Johnson, 994
F.2d 740, 743 (10th Cir. 1993). Therefore, I join Judge Wiss in
concluding that the majority opinion is fatally flawed.
B.
I also join Judge Wiss in his recognition and rejection of the
majority’s general musings on the rights of servicemembers under
the Constitution, the Code, and the Manual for Courts-Martial.
The general thrust of this dicta is to raise doubt concerning the
l3a
protections afforded by the Constitution to members of our armed
forces and to disparage the efforts of the President in providing for
the re-enforcement of these rights at courts-martial. Contra United
States v. Johnston, No. 93-0465, = MJ. , ___ (CMA Sep.
23, 1994) (Sullivan, C.J., dissenting). Judicial restraint dictates
that this Court refrain from such disruptive conjecture and from
legal opinions suggesting that a servicemember is too generously
protected under military law.
Judge Crawford has at times signaled her intent to drive a wedge
between the American servicemember and his Constitutional rights.
See, e.g., United States v. Weiss, 36 M.J. 224, 234 (CMA 1992)
(Crawford, J., concurring in the result) (tie Appointments Clause
in Article II of the Constitution does not apply to the selection of
a military judiciary) United States v. Lopez, 35 M.J. 35, 41 (CMA
1992) (There "is an implicit recognition that the Supreme Court
has never expressly applied the Bill of Rights to the military, but
has assumed they applied."). Contra Nunn, The Fundamental
Principles of The Supreme Court's Jurisprudence in Military Cases
(hereafter Nunn), 29 Wake Forest L. Rev. 557, 564 (1994), where
it was stated: "Although the constitutional guarantees of the Bill
of Rights are generally available to servicemembers, the application
of these guarantees in the military setting differs considerably from
the manner in which they apply in civilian society." Today, she,
joined by a majority of this Court, signals her further
dissatisfaction with Presidential rulemaking designed to protect the
privacy of servicemembers.
In Weiss v. United States, US. ,__, 114. S.Ct. 752, 757
(1994), however, the Supreme Court squarely rejected Judge
Crawford’s position that military trial and appellate judges need
not be appointed pursuant to the Appointments Clause of the
Constitution. Moreover, in Middendorf v. Henry, 425 U.S. 25, 96
S.Ct. 1281 (1976), the Supreme Court expressly held that military
accused "are entitled to the due process of law guaranteed by the
Fifth Amendment." Then-Justice Rehnquist further commented
that the extent to which a particular constitutional right is available
to an accused is based on an "analysis of the interests of the
individual and those of the regime to which he is subject.” 425
14a
U.S. at 43, 96 S.Ct. at 1291. I see nothing in Davis v. United
States, _-: U.S. __, 114 S.Ct. 235 (1994), to the contrary,
particularly with respect to the Fourth Amendment ("Because the
Court of Military Appeals has held that our cases construing the
Fifth Amendment right to counsel apply to military interrogations
and control the admissibility of evidence that our precedents apply
to courts-martial[.]" (Citations omitted.)). Jd. at 2354 n.*/.
The Supreme Court "gives particular deference to the
determination of Congress" when analyzing the availability of
specific Constitutional safeguards in military prosecutions and
investigations. Moreover, it also provides some deference to the
President in these matters. See United States v. Mitchell, 39 M.J.
131, 136 (CMA 1994), citing Weiss v. United States, 114 S.Ct.
760-61; Goldman v. Weinberger, 475 U.S. 503, 507-08 (1986)
cert. filed in Mitchell, No. 94-174, 63 U.S.L.W. 3093 (July 18,
1994). Of course, this deference is not absolute. See Schlesinger
v. Councilman, 420 U.S. 738, 758-61 (1975). But see Rostker v.
Goldberg, 453 U.S. 57, 68 (1981) ("In deciding the question before
us we must be particularly careful not to substitute our judgment
of what is desirable for that of Congress, or our own evaluation of
evidence for a reasonable evaluation by the Legislative Branch.").
I for one do not join the majority’s woeful lament concerning the
President’s authorized rule-making in this area of the law. United
States v. McCarthy, 38 M.J. 398, 404 (CMA 1992) (Sullivan, C.J.,
concurring in result). See United States v. Lopez, 35 M.J. 35, 46,
48-49 (CMA 1992). (Sullivan, C.J., Concurring in the result). See
generally Nunn, supra, 29 Wake Forest L. Rev. at 564 and n.27.
I only add this final thought. In America’s eyes, the urinalysis
program of the United States Armed Forces and its success rests
on application of basic fairness for all servicemembers. Viewing
this case with the heart of a soldier, I see basic fairness lacking.
Captain Lindsay had decided to conduct random testing. Through
the manipulations of Captain Jackson and Sergeant Ramon
(members of this unit’s command structure), appellant was
purposefully selected to be tested. This situation is no different
from one where Captain Jackson and Sergeant Ramon preordained
appellant as the one to be tested by preparing a helmet full of
lSa
names for Captain Lindsay to pick from--and the helmet was full
of slips of paper all bearing appellant’s name.
This was not a random or a fair inspection. Such deception and
underhandedness should not be allowed in the American Armed
Forces. We expect fairness for ourselves and should require no
less for the American servicemember. Since Sun Tsu Wu in the
fourth century B.C., leaders of successful armed forces have
recognized that the right to be treated fairly has been the hallmark
of a superior fighting force. Let’s not give up that tradition and
undermine unit cohesiveness by condoning manipulation of our
system, especially when a Marine’s liberty is at stake. Perhaps this
Marine is guilty, but we cannot sacrifice fairness to convict him.
If we do, then all innocent servicemembers are at risk in the future
as a result of similar machinations of the system by those aiding
a commander in conducting an inspection.
WISS, Judge (dissenting):
Applying Mil.R.Evid 313(b), Manual for Courts-Martial, United
States, 1984, and the precedent of this Court to the inspection here
in issue, I disagree with the majority’s reasoning and its conclusion
that Captain Lindsay’s order to inspect the S-1 section was
permissible. The very essence of this rule is to serve legitimate
military exigencies while, at the same time, preserving to the
extent militarily possible the worth of individual privacy.
Lindsay’s search is outside of Mil.R.Evid 313’s protection for two
reasons.
First, the Government did not carry its burden of persuasion that
Lindsay’s own motivations were untainted. The record is clear:
Lindsay had decided upon a random urinalysis but had not decided
which unit elements to inspect. Out of nowhere, Captain Jackson
mysteriously asks a series of beat-around-the-bush questions about
Lindsay’s intentions and then offers up S-1 section for inspection.
Lindsay’s suspicions obviously and justifiably aroused by this
unheard-of volunteering for inspection, he asked Sergeant Ramon,
l6a
"Is there anything special going on in the S-1 shop that I should
know about?," to which Ramon replied, "I don’t think I’m at
liberty of discussing this with you at this particular time, sir." The
majority claims not to see a "’wink and a nod’" in this scenario.
___ M.J. at (12). To the contrary, I think it is preposterous that a
commander would have his suspicions satisfied by this exchange.
If anything, the response likely heightened, rather than allayed, his
suspicions.
Second, I do not agree with the Chinese Wall that the majority
builds up around the commander who made the inspection decision
here, isolating him and insulating him as a matter of law from
information held by his subordinates. I would not impute to such
a commander, without more, the knowledge held only by a
subordinate; but where that subordinate, because of that
knowledge, affirmatively influences the commander’s decision
whether to inspect or whom in inspect, the whole rationale
underlying Mil.R.Evid. 313 is undermined. A subordinate cannot
knowingly withhold information from the commander or mislead
the commander in some material respect and then proceed to
influence the commander’s inspection decision. Cf Franks v.
Delaware, 438 U.S. 154 (1978) (essential statement in police
affidavit for search warrant that is a deliberate falsehood or made
in deliberate disregard of the truth voids warrant).
II
Not content to limit itself to answering the granted issue, the
majority spends substantial time--via dicta of the highest order--
signaling an apparent readiness to roll back decades of struggle by
this Court to reconcile the legitimate needs of military authorities
emanating from the unique demands of military readiness, on the
one hand, with the often-subconscious but nonetheless firmly
implanted expectations of human and civil rights held by citizens
of this country, on the other. That is not always an easy fit, but
it is one that must be sought.
In very general terms, that fit has been found by inquiring in
each instance whether a claimed "military exception" to an
17a
otherwise protected area of individual rights truly was necessary:
If so, the individual rights of those then in military service give
way for the good of the larger society which they serve; if not,
those rights shield the uniformed citizen as much as his or her
civilian brothers and sisters against the might of government. See
generally Weiss v. United States, 114 S.Ct. 752, 769 (Jan. 19,
1994) (Ginsburg, J., concurring) ("The care the Court has taken to
analyze petitioners’ claims demonstrates once again that men and
women in the Armed Forces do not leave constitutional safeguards
and judicial protection behind when they enter military service.").
In my view, the majority’s gratuitous comments on the military
search totally disregard the historical development in this area of
our jurisprudence and are of academic interest at best.
idan 5
18a
APPENDIX B
DEPARTMENT OF THE NAVY
OFFICE OF THE JUDGE ADVOCATE GENERAL
200 STOVALL STREET
ALEXANDRIA VA 22332-2400
IN THE U.S. NAVY-MARINE CORPS
COURT OF MILITARY REVIEW
BEFORE
JAA. FREYER EDWIN W. WELCH’ R.M. MOLLISON
UNITED STATES
v.
KEITH T. TAYLOR, 276 48 9753
STAFF SERGEANT (E-6), U.S. MARINE CORPS
NMCM 91 0669 Decided 24 February 1993
Sentence adjudged 3 May 1990. Military Judge: A. M. Crebbin.
Review pursuant to Article 66(c), UCMJ, of Special Court-Martial
convened by Commanding Officer, Sth Marine Regiment, Ist
Marine Division (Rein), FMF, Camp Pendleton, CA 92055-5507.
LT DAVID P. SHELDON, JAGC, USNR, Appellate Defense
Counsel
Capt BRETT D. BARKEY, USMCR, Appellate Government
Counsel
AS AN UNPUBLISHED DECISION, THIS OPINION DOES
NOT SERVE AS PRECEDENT.
WELCH, Judge:
19a
The appellant was convicted of wrongful use of marijuana
within 12 days prior to 12 Dec 1989! despite his pleas of not
guilty and testimony proclaiming his innocence. We affirm the
decision of the trial court.
I. The Factual Setting
Before discussing the issues raised by the assignments of error’,
we state the sequence of events presented in the record.
Thursday, 7 Dec 1989
The appellant had three wisdom teeth removed. His dentist gave
him a 48 hour "no duty" chit (to be followed by 24 hours of bed
rest). He was then a sergeant working as an administrator in the
S-1 section of the Sth Marine Regiment, Ist Marine Division, at
Camp Pendleton, California.
Captain Jackson was the adjutant and head of the S-1 section;
Gunnery Sergeant Bench was the senior noncommissioned officer.
Approximately 18 Marines were assigned to the S-1 Section,
including Sergeant Ramon, the regimental Substance Abuse
Control Officer (SACO), and other Marines who worked in the
SACO’s section (Corporal Siteman, Corporal Montion, and
Sergeant Stoll). Marines of the S-1 were under the command of
'In violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 912a. He was tried by a special court-martial that included officers and
enlisted members. The sentence: confinement for 45 days, reduction to pay grade
E-1, and a bad-conduct discharge, which was approved by the convening authority.
21, THE MILITARY JUDGE SHOULD HAVE SUPPRESSED
THE RESULTS OF THE URINALYSIS IN THIS CASE.
Il. THE MILITARY JUDGE ERRED IN NOT PERMITTING
THE DEFENSE TO PUT ON EXCULPATORY EVIDENCE
OF APPELLANT’S NON-USE OF MARIJUANA.
Ill. THE GOVERNMENT FAILED TO PROVE APPELLANT'S
GUILTY BEYOND A REASONABLE DOUBT.
sins al
3
20a
Captain Lindsay, the Commanding Officer, Headquarters
Company, Sth Marine Regiment.
According to Sergeant Ramon, he received an anonymous
telephone call that was recorded on his answering machine during
the night of 7 Dec 1989. The caller advised that someone in the
S-1 had been using drugs.
Friday, 8 Dec 1989
Sometime during the day, Captain Lindsay made the decision to
order random urinalysis testing during the following week. He
told his executive officer to begin the process and to tell his SACO
that he wanted the testing done. He had several reasons for the
decision. First, he anticipated that Sergeant Ramon would be
separated from the Marine Corps sometime in the immediate
future, and he did not want to conduct a urinalysis testing at the
last minute during Sergeant Ramon’s turn-over with his relief.
Second, he wanted to deter the use of illegal drugs by Marines
during the approaching holiday season. Third, he wanted to
comply with Marine Corps directives requiring urinalysis testing.
When Captain Lindsay made the decision to conduct random
urinalysis testing, he had not decided exactly how the testing
would be conducted (e.g., whether to "pull a section out of a hat
or to say everyone with this particular number ending SSN, or a
percentage wide across the board.") (R. 70). That day, Captain
Lindsay discussed the options with Sergeant Ramon.
Sometime during the day, Sergeant Ramon told Captain Jackson
about the anonymous report on his answering machine reporting
drug use by someone in the S-1. Captain Jackson told Sergeant
Ramon that he would "get back with him." (R. 33).
Monday, 11 Dec 1989
Sometime during the morning, Sergeant Ramon told Captain
Jackson that a former member of the S-1 section had reported to
him that the appellant was a drug user. Initially, Sergeant Ramon
2la
did not tell Captain Jackson the identity of the Marine who made
the report. About an hour later, he told Captain Jackson the
identity of the informer.
Captain Jackson called Captain Lindsay and asked when Captain
Lindsay planned on doing urinalysis testing. Captain Lindsay
replied, "Well, this week." Captain Jackson responded, "How do
you plan to do it?" After Captain Lindsay replied, "It’s going to
be random," Captain Jackson stated, "Well, what about the S-|
section?" Captain Lindsay then said, "Fine, that fits right along,
and why not just go ahead and get it out of the way." (R. 46).
During the conversation, Captain Jackson did nos tell Captain
Lindsay about information he had received trom Sergeant Ramon.
Later, Captain Lindsay signed a letter directing that random
urinalysis testing of members of the S-1 section begin at 9730,
Tuesday 12 Dec 1989.
Corporal Siteman testified that he saw the appellant, during the
morning, typing the letter directing the urinalysis testing. (R. at
246). The appellant denies that he typed the letter.
While the letter was being processed, just prior to lunch,
Corporal Siteman heard the appellant making a telephone call. He
heard the appellant say: "Hey, staff sergeant, this is Taylor. Can
you hook me up with some Golden Seal," and that "he would be
over that night to pick it up." (R. at 249). Apparently, "Golden
Seal" is the diuretic believed by some to flush illegal drugs from
their body.
At about 1300, Gunnery Sergeant Bench told the appellant to
leave work and go home because the appellant’s face was swollen
and the appellant was not feeling well. The appellant did as
directed.
At about 2000, the appellant went to the dental clinic and
complained of pain. He was given "percocets,” a pain killer, and
a "no duty" chit that would expire at 0800, Wednesday, 13 Dec
1989.
Tuesday, 12 Dec 1989
22a
At about 0720, the appellant called Gunnery Sergeant Bench
from home and told the gunnery sergeant about going to the dental
clinic the prior night and obtaining a "no duty” chit. Gunnery
Sergeant Bench told the appellant not to come to work.
Sometime between 0800 and 1000, Captain Jackson called the
appellant at home. After their discussion, Captain Jackson called
the dental clinic and was incorrectly advised that the appellant had
not come to the dental clinic the prior night.
At about 1500, Captain Jackson told Gunnery Sergeant Bench
to tell the appellant to get into work and to bring his "no duty"
chit. At about 1630, the appellant arrived at the office and
presented his chit. He was then told to provide a urine specimen.’
Il. The Order to Provide Urine
We disagree with the appellant’s contention that Captain
Lindsay’s order to conduct urinalysis was a subterfuge search for
contraband rather than a lawful- inspection. We find that the
primary purpose of the order was to comply with Marine Corps
policy concerning urinalysis testing (i.e., to deter use of illegal
drugs). More importantly, we find that Captain Lindsay’s actions
were not motivated by a desire to provide a subterfuge for
avoiding limitations that apply to a seatch and seizure in a criminal
investigation. See United States v. Thatcher, 28 M.J. 20 (C.M.A.
1989) and United States v. Rogers, 30 M.J. 824 (C.G.C.M.R.),
petition denied, 32 M.J. 45 (C.M.A. 1990).
True, Captain Jackson and Sergeant Ramon had acquired
knowledge concerning the accused’s illegal use of drugs.
However, they never conveyed this information to Captain
Lindsay, their commanding officer. This lack of knowledge by
Captain Lindsay, coupled with the undisputed evidence of his
desire to complete urinalysis testing before his experienced SACO
left the command, convinces us that we should not impute to
*The trial judge made extensive findings concerning the sequence of events.
(R. 386-389).
23a
Captain Lindsay the knowledge acquired by his subordinates,
which is, essentially, the position advocated by the appellant.’
We do not agree with the appellant’s contention that Mil.R.Evid.
313(b)’ required the Government to prove the existence of an
inspection by clear and convincing evidence. Our conclusion is
based on the fact that Captain Lindsay did not know there had
been a recent report of a specific offense in his unit when he
ordered urinalysis testing of members of his S-1 section. The
"conscious command decision" necessary to trigger the clear and
convincing burden of proof required by Mil.R.Evid. 313(b) is
lacking in this case. See United States v. Pappas, 30 M.J. 513,
517 (A.F.C.M.R.), petition denied, 31 M.J. 490 (C.M.A. 1990).
Obviously, Captain Lindsay’s decision to select the S-1 scction
for urinalysis testing was influenced to some extent by Captain
Jackson’s telephone call to him. However, that fact is not
dispositive of the issue. At the time of the conversation, Captain
Lindsay had already decided to conduct random testing. All the
call did was to subtlety suggest to him that he should select the S-|
for testing; it in no way singled out the appellant for testing.
We agree with the Government’s argument that case law does
not require that a commanding officer’s selection of a unit or
section to be tested must be based on an absolutely random basis.
In our opinion, a commanding officer has some discretion in such
‘If we did impute the knowledge acquired by Captain Jackson and Sergeant
Ramon to their commanding officer, then we would resolve this case adversely to
the appellant on the alternative theory advanced by the Government in footnote 2
of its brief (i.e., that the commanding officer had probable cause to order appellant
to submit to urinalysis testing, per guidance in United States v. Middleton, 10
M.J. 123, 134 (C.M.A. 1987)).
‘Which states in part that the Government must prove the existence of an
inspection by “clear and convincing" evidence if the purpose of a challenged
examination is to locate contraband, and the examination was "immediately
following a report of a specific offense in the unit." We add that if the burden to
prove the existence of an inspection in this case was by "clear and convincing”
evidence, we would find that the Government had carried that burden.
24a
matters, so long as his actions do not arbitrarily focus on one or
more individuals whom he suspects used drugs illegally. Stated
otherwise, we do not think that a commander has to "roll the dice"
or "pick a number" when he selects a unit for inspection by
urinalysis testing, albeit, such a method moots many appellate
issues. See United States v. Flowers, 26 M.J. 463 (C.M.A. 1988).
In this regard, the applicable Marine Corps Order®, states in part
that random urinalysis
must be conducted on all Marines . . . on a routine
basis... . A system should be used to ensure that
all Marines are tested annually in a random
fashion. Random testing may take several forms,
to include unit sweeps (simultaneous testing of all
members of a command), partial testing by... .
work section.
Thus, Captain Lindsay’s decision to test all members of his S-1
section clearly comported with directives of the Commandant of
the Marine Corps. Guidance in the U.S. Navy is similar. See
United States v. Daskam, 31 M.J. 77 (C.M.A. 1990).
In this case, the commander simply decided that an entire
section would be tested. He did so without knowledge that the two
members of the section, Captain Jackson and Sergeant Ramon,
suspected that another member of the section had illegally used
drugs. We deem it of no significance that the appellant was
ordered to report to his work section from his quarters after
receiving "no duty" chit from a dental officer. In our opinion,
Captain Jackson had authority to order the appellant, his
subordinate, to report to work for urinalysis testing despite the
appellant’s receipt of a "no duty" chit from his dentist.
Additionally, we observe that Captain Jackson had investigated the
appellant’s situation on 12 Dec 1989 and been advised by someone
at the dental clinic that appellant had not been to the dental clinic.
Although not pivotal to our decision, this fact manifests to us that
® MCO P5300.12, 4 3003.3.
25a
Captain Jackson was diligently pursuing his duties as an officer of
Marines in an appropriate manner, albeit he received a "bad scoop"
from someone at the dental clinic.
At the bottom line, this is not a case where a servicemember has
been unreasonably singled out for urinalysis testing by a
commander who merely suspects drug use. This appellant was
required to do only what was required of all Marines in his work
section. In our opinion, issuance of the order that led to
appellant’s conviction was in accordance with principles
established by a growing line of cases concerning urinalysis
testing. See United States v. Williams, 35 M.J. 323 (C.M.A. 1992),
and United States v. Daskam, supra, and cases cited therein.
III. Procedural Irregularities in the Urine Collection Process
We disagree with the appellant’s position that irregularities in
the collection process made the results of urinaiysis iesting
unreliable as a matter of law.
The trial judge made extensive findings concerning the steps
taken by Marines involved in the collection process (see R. 524-
527 or pages 13-15 of Government counsel’s brief), and appellate
counsel have thoroughly briefed and argued the issues relating to
the trial judge’s findings. In a nutshell, appellant complains that
the following five alleged errors occurred:
a. The SACO, Sergeant Ramon, was not a_ staff
noncommissioned officer, contrary to wording in the Urinalysis
Coordinator’s Handbook (handbook), which cites a need to assign
either an officer or staff noncommissioned officer to this important
position to "maintain the credibility and integrity of the program"
etc.
b. One individual, Sergeant Ramon, served as both the observer
and coordinator for the collection of appellant’s specimen, contrary
to cited wording in the handbook and applicable local order,
Marine Corps Base Order P5300.13A.
26a
c. The observer, Sergeant Ramon, also supplied a specimen for
testing, contrary to cited wording in the handbook and applicable
local order.
d. After the appellant’s urine specimen tested negative during
the screening test at Camp Pendleton’s Consolidated Substance
Abuse Center (CSACC), the specimen was not destroyed as
required by the applicable base order; rather, it was sent to the
Navy Drug Screening Laboratory in San Diego, where it tested
positive.
e. The appellant’s sample sat for seven days at Camp Pendleton
before it was sent to the laboratory in San Diego, contrary to cited
wording in the handbook which recommends against storage of
such specimens for any length of time.
Our reading of United States v. Pollard, 27 M.J. 376 (C.M.A.
1989), United States v. Konieczka, 31 M.J.289 (C.M.A. 1990), and
United States v. Whipple, 28 M.J. 314 (C.M.A. 1989) leads us to
adopt the position advocated by the Government with regard to
each of the alleged discrepancies. More specifically, proceeding
seriatim, we conclude:
a. The assignment of a sergeant SACO, vice an officer of staff
noncommissioned officer, was not so significant in terms of
ensuring the fundamental reliability of the specimen collection
process that the military judge abused his discretion in admitting
the urinalysis result and allowing the matter to be considered by
the members. Whipple; Pollard.
b. An observer was not required as a condition precedent to
admissibility of appellant’s specimen.
c. Sergeant Ramon and the appellant did not provide specimens
in the same batch of specimens. Sergeant Ramon’s was in batch
number 124, the first batch; the appellant’s was in batch number
126. Sergeant Ramon never touched batch number 124; Sergeant
Stoll handled that batch. Sergeant Ramon assisted Sergeant Stoll
by filling out the top part of the urine sample custody document
27a
that accompanied the appellant’s specimen (R. 726); however, he
did not handle the specimens in batch number 126 (ergo, he was
not in a position to switch appellant’s sample with his).
d. Appellant’s urine specimen tested negative as the CSACC at
Camp Pendleton, based on EMIT testing. (R. 863). Thereafter,
the Officer-in-Charge of the CSACC directed that 1000 samples
screened as negative be sent to the Navy Drug Screening
Laboratory in San Diego. The appellant’s specimen was one of
the 1000; it tested positive when exposed to more sophisticated
testing, and the results led to his conviction. Though the base
order provided for the disposal of negative urine specimens by
CSACC, the import of the order was more in the nature of a grant
of authority for the disposal of unneeded urine, than it was the
grant of amnesty or the creation of some technical persona! right
against detection. Additionally, the motive for forwarding the
block of samples--quality control--was legitimate. The size and
status of the block of specimens forwarded belie any notion that
the appellant was discriminated against or in some way targeted as
in Konieczka. Like the initial screening, the subsequent analysis
by the laboratory was an administrative inspection, and nothing
occurred that transmogrified it into something else.
e. We consider that the handbook’s comments regarding storage
of specimens are merely hortatory; they grant no rights to the
accused which form the basis of any relief before this Court.
Additionally, the comments are contrary to guidance mandating
storage of specimens at the Navy Drug Screening Laboratory in
San Diego.
IV. Exclusion of Testimony
The Government agrees that the trial judge erred by (a) not
letting the appellant’s girl friend, Ms. Goins, testify that neither she
nor the appellant used marijuana, and (b) not allowing the
appellant to testify that his girl friend did not use marijuana.
We agree with the Government that an application of the
principles in United States v. Weeks, 20 M.J. 22 (C.M.A. 1985) to
28a
the case at bar leads to the conclusion that the error does not
require reversal of the conviction. Weeks requires that we analyze
four factors when a judge erroneously denies an accused the
presence of a requested witness: (a) the strength of the
Government’s case, (b) the plausibility of the defense theory, (c)
the materiality of the proffered testimony, and (d) the quality of
the defense evidence and whether there is any substitute for the
excluded evidence in the record.
Focusing on the first Weeks factor, we conclude that there are at
least eight items of evidence indicative of an exceptionally strong
* case against the appellant. These eight items are listed below in
Part V of our opinion, our evaluation of the evidence. Turning to
the second factor, we observe that the defense theory on the merits
was that the urinalysis testing was flawed from start to finish (i.e.,
that the Government could not prove beyond reasonable doubt that
the appellant’s urine tested positive) and that the appellant had a
good character (i.e., he was not the type person who would commit
the offense charged). Frankly, in the face of the evidence
marshalled by the government, we have little confidence in the
theory of innocence, and, as our following discussion will indicate,
we do not believe that either the proffered testimony of Ms. Goins
or the appellant would significantly advance this theory. In this
case, factors three and four of the Weeks factors run together. In
our opinion, the materiality of both Ms. Goins’ testimony and the
appellant’s testimony about her is quite low. In reaching this
conclusion, we have reviewed the proffered testimony of Ms.
Goins that appears in Appellate Exhibit XXI ("She is expected to
testify that she has never done drugs of any kind nor encouraged
Staff Sergeant Taylor to misuse them. Ms. Goins is expected to
testify that Staff Sergeant Taylor has never used marijuana in her
presence nor has he ever given her any indication that he was
under the influence of marijuana."). If the above-cited testimony
had been offered, along with the appellant’s testimony that Ms.
Goins had never smoked marijuana, we are confident that it would
have received little weight. This evaluation is based upon
considerations discussed by the trial judge when he excluded this
evidence (e.g., that the testimony does not exclude the possibility
that the appellant smoked marijuana at a time when Ms. Goins was
29a
not present) and our belief that testimony of this nature is
frequently viewed with skepticism by court members.
Additionally, the appellant presented four witnesses who testified
to his good military character, plus copies of numerous documents
in his service record indicative of his good military character.
Based upon these factors, we find that the appellant was not
prejudiced by the actions of the judge that are the subject of the
second assignment of error.
V. Evaluation of Evidence
We find that the evidence proves the appellant’s guilt beyond
reasonable doubt.
As evidenced by the weight of the record of trial and
accompanying papers we have evaluated, this case was thoroughly
litigated at both the trial and appellate level. The evidence against
the appellant includes the following damning proof of guilt:
a: The positive urinalysis test result based on sophisticated
testing at the Navy Screening Laboratory in San Diego. (R. 755-
794).
b. Expert testimony indicating that the re-test of appellant's
specimen might not have disclosed the presence of percocet even
if the appellant had taken the drug. (R. 986).
c. Corporal Siteman’s testimony that he heard the appellant on
the telephone on 11 Dec 1989 asking a staff sergeant to assist him
in getting "Golden Seal," a substance believed by some to flush
drugs from the system.
d. Corporal Siteman’s testimony that the appellant had told him
during the first week in Dec 1989 about smoking marijuana with
a girl friend.
e. Sergeant Ramon’s testimony that the appellant had told him
"off the record" during the urine collection process that he, the
appellant, had used marijuana, that he indicated that he would
30a
"pop-positive," and that he stated while urinating "[t]here goes my
career."
f. The appellant’s admission that he had said that he was going
to "pop" "just to find out what was going on as far as being
recalled to work." (R. 1033).
g. The evidence that appellant was in pain because of dental
surgery and that he received pain killers and a "no duty" chit,
factors indicating a reason and opportunity to use marijuana with
a diminished expectation of being caught.
h. Testimony indicating that the appellant acquired knowledge
that his section would undergo urinalysis testing and soon
thereafter managed to be sent home.
In summary, we are convinced beyond a reasonable doubt that
the requested witness would not have tipped the balance in the
appellant’s favor and that the evidence of guilt was so strong as to
show no reasonable possibility of prejudice concerning his
conviction for marijuana use. United States v. Fisher, 24 M.J. 358
(C.M.A. 1987). We view as particularly fanciful the appellant’s
theory that he was framed.
For the reasons stated, we conclude that the findings and
sentence are correct in law and fact and that no error materially
prejudicial to the substantial right of the appellant was committed.
Accordingly, the findings and sentence as approved on review
below are affirmed.
EDWIN W. WELCH
(SEE CONCURRING/DISSENTING OPINION)
J. A. FREYER
Judge MOLLISON concurs.
3la~
R. M. MOLLISON
FREYER, Senior Judge (concurring in part and dissenting in part):
I concur in the excellent analysis of the evidence contained in
the principal opinion and agree that, if the results of the urinalysis
were properly admitted, the conviction should stand.
I cannot, however, accept the conclusion that the urinalysis
satisfied the criteria for a random inspection. The principal
opinion acknowledges the unquestionable reality that Captain
Jackson’s volunteering of his section influenced Captain Lindsay's
selection of that section for testing. The evidence also shows that
Captain Jackson volunteered his section immediately after receiving
a report that the appellant was a drug user, and that legally
significant circumstance, elucidated further by the persistent efforts
made to ensure that the appellant was tested, while the executive
officer was permanently excused when he was temporarily unable
to provide a sample, ' establishes that the report received by
Captain Jackson concerning the appellant strongly influenced his
decision to volunteer his section in order to "catch" the appellant.
If the report that the appellant was a drug user motivated Captain
Jackson to volunteer his section, and Captain Jackson's
volunteering of his section influenced Captain Lindsay to single
out that particular section for urinalysis, | cannot understand how
the report that the appellant was a drug user did not play a
proximately causative role in the resulting urinalysis of Captain
Jackson’s section so as to destroy its randomness.
In some respects, this situation strikes me as analogous to the
situation in which material facts are omitted from the affidavit
supporting an application for a search warrant. Had Captain
Jackson candidly informed Captain Lindsay that he was
volunteering his section because he wanted to catch the appellant
after having received what was at the time an unsubstantiated
report that the appellant was a drug user, Captain Lindsay would
\ Soe United States v. Parker, 27 M.J. $22, 527 (A.F.C.M.R. 1988).
32a
have been precluded from ordering an "inspection" urinalysis of
that particular section, unless it happened, nevertheless, to be
picked for inspection by some process ensuring random selection,
which the Government would have the burden of proving by clear
and convincing evidence. Not surprisingly, therefore, Captain
Jackson intentionally omitted that material information from his
communication to Captain Lindsay. In my view, the principles of
Franks v. Delaware, 438 U.S. 154 (1978), which have been held
to apply equally to omissions as to express falsehoods, United
States v. Williams, 737 F.2d 594, 604 (7th Cir. 1984), also vitiate
the randomness of the urinalysis ordered by Captain Lindsay in
this case.
Other information acquired by Captain Jackson may have
attained the level of probably cause to seize the appellant’s urine,
but it was acquired after the "inspection" of Captain Jackson’s
section had already been ordered by Captain Lindsay. There is no
evidence that it was ever communicated to Captain Lindsay. In
United States v. Middleton, 10 M.J. 123 (C.M.A. 1987), the
commander with power to order a search was on the scene and was
personally aware of the information constituting probable cause
when the search was conducted; hence, his authorization, albeit
unarticulated, could be implied from the circumstarices. Probable
cause does not exist in the air; it must at least reside in the mind
of the official empowered to authorize a search before an
authorization can be implied so as to convert a "bad" inspection
into a "good" search. If the mere existence of probable cause were
sufficient to validate any unauthorized (in the sense of warrantless)
search, the authorization requirement would, in effect, be banished
from military law, and every unauthorized search would be
examined retrospectively, like an apprehension, for probable cause.
That is not a search-and-seizure doctrine which either the
Constitution would tolerate or the President had prescribed. In any
event, I am aware of no basis for imputing to Captain Lindsay any
knowledge acquired by Captain Jackson after Captain Lindsay had
already ordered the "inspection" of Captain Jackson’s section.
Absent any other basis for admitting the urinalysis results, I am
of the opinion that the motion to suppress them should have been
33a
granted.
J. A. FREYER
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.