CAAF strikes down urinalysis arising from really strange fact pattern

[Disclaimer: I am one of SrA Miller's counsel.]

Senior Airman Miller was a reservist serving on extended active duty at an Air Force reserve installation. The installation's urinalysis program manager randomly selected SrA Miller to provide a sample. Under the Air Force Instruction governing urinalysis programs, "Unit commanders are responsible for directing that drug tests be conducted." United States v. Miller, __ M.J. ___, No. 07-5004/AF, slip op. at 6 (C.A.A.F. May 20, 2008). The term "unit commander" includes a servicemember's immediate commander and higher-level commanders in the chain of command. Id.

But SrA Miller's immediate commander didn't order him to provide a urine sample. Nor did anyone in his chain of command. Rather, the order came from a reserve major who was in a civilian capacity, with no command authority, when he ordered SrA Miller to provide the sample. Id., slip op. at 3.

The military judge suppressed the evidence that resulted from the urinalysis and the Air Force Court affirmed. The Judge Advocate General of the Air Force then certified the case to CAAF. Splitting 3-2, CAAF affirmed. Judge Stucky wrote for a majority consisting of him, Judge Erdmann, and Judge Ryan. Judge Baker, joined by Chief Judge Effron, dissented.

The majority opinion emphasized that Military Rule of Evidence 313 defines an inspection as an examination "conducted as an incident of command." Mil. R. Evid. 313(b). "This tie, or connection, between the inspection and command authority is important in justifying the reasonableness of what is otherwise a warrantless search." Miller, No. 07-5004/AF, slip op. at 5-6. Again emphasizing that "a valid inspection is conducted as an incident of command," the majority observed that "the Government failed to establish that any commander in [SrA Miller's] chain of command at the installation directed that a test be conducted." Id., slip op. at 6. Providing the Government with a road map for avoiding similar cases in the future, CAAF expressly "recognize[d] that a commander can establish a drug testing program such that a random selection by the computer program equates to a direction to test." Id., slip op. at 7. But the Government produced no evidence that such a policy was in effect at Westover Air Reserve Base. Id. Rather, a reservist acting in a civilian capacity directed SrA Miller to provide a sample. Accordingly, the letter directing SrA Miller to provide a sample was not "a legitimate exercise of command authority." Id. The resulting urinalysis therefore "was not an incident of command and did not comply with M.R.E. 313."

Judge Stucky -- a retired Air Force Reserve colonel -- concluded with what was no doubt an Air Force pun: "Operating an inspection program on 'auto-pilot' without command input, as was done here, neither constitutes a legitimate order to test nor satisfied the requirements of M.R.E. 313." Id.

Miller is unlikely to lead to widespread invalidation of urinalysis results for at least three reasons: (1) the facts were so odd, it would be surprising if there were any other case on all fours; (2) it involved an interpretation of Air Force-specific regulations and would not likely govern urinalyses from any other service; and (3) MAJCOM SJAs will likely change their installation urinalysis program orders to provide the fail-safe that CAAF identified.

Miller continues a trend: it is the fourth of the five 2007 Air Force JAG-certified cases to be decided and it is the fourth in which the Air Force Court was affirmed. Of course, as the 3-2 split demonstrates, unlike United States v. Perez, 66 M.J. 164 (C.A.A.F. 2008) (per curiam), and United States v. Mackie, 66 M.J. 198 (C.A.A.F. 2008) (per curiam), Miller was well-suited for certification. The outcome of United States v. Melson, No. 08-5003/AF, which was orally argued on 12 March, will determine whether the Air Force Court enjoys a clean sweep on certified cases this term. (CAAF has also heard oral argument on a case certified by the Judge Advocate General of the Army: United States v. Gutierrez, No. 08-5004/AR, which was heard on St. Patrick's Day. A case certified by the Judge Advocate General of the Coast Guard on 22 April 2008, United States v. Yanger, No. 08-5006/CG, presumably won't be decided until next term.)

One consequence of the ruling is that Miller won't be the case to seek cert to review CAAF's holding in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), that it has jurisdiction to review a Court of Criminal Appeals' resolution of an Article 62 appeal. That issue will lie dormant until another term - and until after a possible cert petition in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008).