United States v. Bruno

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
________________________
Misc. Dkt. No. 2017-03
________________________
UNITED STATES
Appellant
v.
David W. BRUNO
Second Lieutenant (O-1), U.S. Air Force, Appellee
________________________
Appeal by the United States Pursuant to Article 62, UCMJ
Decided 23 August 2017
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Military Judge: Christina M. Jimenez.
GCM convened at Barksdale Air Force Base, Louisiana.
For Appellant: Major Tyler B. Musselman, USAF (argued); Colonel
Katherine E. Oler, USAF; Major Mary Ellen Payne, USAF; Major Mer-
edith L. Steer, USAF.
For Appellee: Captain Allen S. Abrams, USAF (argued); Lieutenant
Colonel Nicholas W. McCue, USAF.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge MAYBERRY and Senior Judge JOHNSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
SPERANZA, Judge:
The Government filed an appeal under Article 62, Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. § 862, asserting that the military judge erred
when she excluded evidence of Appellee’s second urinalysis. The Government
United States v. Bruno, Misc. Dkt. No. 2017-03
maintains that Appellee’s second urinalysis was taken in accordance with a
standing inspection order issued by the installation commander and minor
deviations in the execution of the policy did not mandate suppression. We
agree and find the military judge abused her discretion in excluding the evi-
dence.
I. BACKGROUND
Appellee is charged with two specifications of wrongful use of metham-
phetamine in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The allega-
tions are based, in large part, on Appellee’s two positive urinalysis tests. Ap-
pellee provided the first urine sample on 2 August 2016 after being selected
for random urinalysis. On 23 August 2016, Appellee provided another urine
sample for urinalysis under circumstances that ultimately led to this appeal.
Appellee elected to be tried by a military judge alone and raised several
motions after arraignment. Accordingly, the parties litigated Appellee’s mo-
tion to suppress statements he made to the Air Force Office of Special Inves-
tigations (AFOSI) and to another military member, Captain (Capt) CVA. Af-
ter the military judge granted this motion in part and suppressed Appellee’s
statements to AFOSI and any derivative evidence, trial defense counsel oral-
ly raised a motion to suppress evidence of Appellee’s second urinalysis test.
Trial defense counsel argued:
[T]he second urinalysis is derivative evidence of the interac-
tions with OSI that was suppressed. I understand that the gov-
ernment’s probably operating under the premise that the sec-
ond urinalysis was the result of a Bickel1 policy; a standing
Bickel policy. And it’s not our position that there is no Bickel
policy or there’s a problem with it, necessarily but, just the way
it played out.
....
And the defense is not aware of any authority that says OSI is
the enforcer of the Bickel policy. It is a command policy run by
the Installation Commander, which is essentially delegated
and run by the individual Squadron Commander for each
squadron to run, and not OSI.
So, it’s the defense’s position that the second urinalysis was,
essentially—not necessarily a lawful order by OSI, but not un-
1 Referencing United States v. Bickel, 30 M.J. 277 (C.M.A. 1990).
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United States v. Bruno, Misc. Dkt. No. 2017-03
der the policy of the Bickel memo, but instead, OSI directing
[Appellee’s escort] to take [Appellee] over [to the testing facili-
ty]. And there was no testimony that [Appellee’s escorts, Capt
CVA and Master Sergeant (MSgt) M were] aware of the Bickel
policy, and that [Appellee] had to go to [Drug Demand Reduc-
tion Program (DDRP)] to test, because of a Bickel policy that
may have been in place at the time.
Trial defense counsel attempted to clarify their position with the military
judge by maintaining their motion to suppress the second urinalysis is “based
on the legal theory that it’s derivative of the OSI interview and OSI’s interac-
tion with [Appellee] that day.” The military judge summarized the Defense’s
position as “[the test] did not follow a Bickel order.” Trial defense counsel
agreed with this summation, adding “they were not following the Bickel poli-
cy; they were following direction from OSI, without any explanation of a
Bickel policy, which is a Commander’s policy, not OSI’s policy . . . And im-
proper application of the Bickel policy.”
After trial counsel ostensibly “fleshed out the defense’s argument for how
[the second urinalysis] was derivative evidence,” the Government initially
presented the military judge with the installation commander’s re-inspection
policy memorandum. The Defense countered with portions of Air Force In-
struction (AFI) 90-507, Military Drug Demand Reduction Program, and the
argument that “a Bickel program is constitutional as a re-inspection, as long
as the delineated policy is followed, per the [commander’s] written memoran-
dum or standing order.” Special Agent (SA) JR, the AFOSI agent who inter-
viewed Appellee just prior to Appellee providing the second urinalysis sam-
ple, testified on behalf of the Government. After SA JR’s testimony, the par-
ties presented additional argument.
The military judge granted the defense motion and articulated the basis
for her ruling orally on the record. The military judge first found the follow-
ing facts “by at least a preponderance of the evidence:”
[T]here is a 2d Bomb Wing Commander policy letter issued on
7 June 2016 . . . that, in fact, requires a urinalysis re-inspection
upon the specified circumstance, those delineated in paragraph
three [of the policy letter].2 If those conditions are met, then the
2Paragraph 3 of the policy letter requires mandatory urinalysis for military mem-
bers:
(Footnote continues on next page)
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United States v. Bruno, Misc. Dkt. No. 2017-03
member’s commander will order the members following the
procedure outlined in AFI 90-507[.]3
AFI 90-507 provides sample written notification as the means
in which to notify a member[.] The accused’s commander in
this case did not issue an order, oral or written, on or about 23
August 2016 to the accused. The accused was taken by [Capt
CVA], his acting supervisor, along with [MSgt CM], the addi-
tional duty First Sergeant, and [Capt CVA] was acting by in-
formation given to him through OSI. [SA JR] from OSI knew of
the 2d Bomb Wing Commander’s policy regarding re-inspection
of urinalysis [sic]. He likewise had no authority himself to or-
der someone to submit to a urinalysis at DDR and [SA JR] did,
by practice, remind or inform inexperienced first sergeants of
the wing commander’s policy.
The military judge concluded that the squadron commander could have
complied with the policy’s requirement that he order Appellant to provide a
urinalysis sample in accordance with the AFI and the squadron commander
simply failed to do so. Consequently, the military judge found nothing to con-
nect Appellant’s second urinalysis with the legitimate exercise of command
authority and held that the urinalysis failed to meet Mil. R. Evid. 313’s re-
quirements.
The Government requested a recess to “discuss the ruling.” After the re-
cess, the Government sought reconsideration of the ruling and asked that the
military judge’s ruling be provided in writing. In support of its reconsidera-
tion request, the Government provided the military judge additional portions
of AFI 90-507, as well the testimony of Lieutenant Colonel (Lt Col) RK, Ap-
pellee’s squadron commander, and Capt CVA, Appellee’s acting supervisor
a. Whose urine sample has a positive result for the presence of any
controlled substance, the presence of which is without legal justifica-
tion or authorization;
b. Whose urine sample is deemed to be “untestable” by the Drug Test-
ing Laboratory, to include samples determined to be a substance oth-
er than urine, or urine that has been adulterated or diluted with a
foreign substance; and
c. Who are AWOL for more than 8 hours.
3 Air Force Instruction, 90-507, Military Drug Demand Reduction Program, (22 Sep.
2014), establishes the roles and responsibilities within the service’s drug demand re-
duction program, to include command authority, delegation of authority, member
testing availability, formal notification, documentation, and testing procedures.
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United States v. Bruno, Misc. Dkt. No. 2017-03
and escort the day of the second urinalysis. The military judge entertained
further argument but affirmed her prior ruling in writing.
The military judge “incorporated” her previous oral ruling into her writ-
ten ruling. The written ruling purported to “clarif[y] and correct[ ] any earlier
findings and law applicable to the issue[.]” The military judge first “adopt[ed]
as fact for the purposes of [her] ruling all matters contained within [Urinaly-
sis Re-Inspection Policy and the AFI 90-507 excerpts] as accurately reflecting
the items or information identified therein.”
The “Urinalysis Re-Inspection Policy” refers to a memorandum from the
2d Bomb Wing commander (2 BW/CC). This memorandum is styled and
reads, in pertinent part, as follows:
MEMORANDUM FOR ALL MILITARY PERSONNEL
TESTED UNDER AUTHORITY OF
THE BARKSDALE AFB DRUG
DEMAND REDUCTION PROGRAM
FROM: 2 BW/CC
SUBJECT: Urinalysis Re-Inspection Policy
1. This memorandum outlines my policy, as the Barksdale AFB
installation commander, of requiring military personnel tested
under my authority of the Barksdale AFB Drug Demand Re-
duction Program to report for urinalysis re-inspection following
a positive, inconclusive, or diluted test or after having been ab-
sent without leave (AWOL). Those members who meet any of
the criteria below will be required to submit to follow-up uri-
nalysis testing by the Barksdale AFB Drug Demand Reduction
Program as a re-inspection.
2. The unlawful use of controlled substances by a military
member has the potential to seriously undermine our mission
and endanger the lives of other members of my command as
well as other personnel and missions we support. The purpose
of random urinalysis inspection, to include unit sweeps, is to
determine and ensure the safety, security, military fitness,
readiness, and good order and discipline of military members.
The random urinalysis inspection program requires service
members to be randomly selected for urinalysis and to report to
the testing facility to provide a urine sample. Follow-up testing
and re-inspection will be used as a continuation of the original
inspection. These urinalysis inspections are part of my random
urinalysis program, and not a criminal investigative tool, re-
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United States v. Bruno, Misc. Dkt. No. 2017-03
gardless of the admissibility of such test results as evidence in
Uniform Code of Military Justice actions.
3. All military personnel, to include Reservists and Air Nation-
al Guard in Title 10 status (Inactive Duty Training, Active Du-
ty, and/or Annual Training), and personnel located at Geo-
graphically Separated Units (GSUs), who meet one or more cri-
teria listed below will be required to report for a urinalysis in-
spection of the first duty day following receipt of the test re-
port. Members subject to mandatory re-testing include military
tested under the authority of the Barksdale AFB Drug Demand
Reduction Program:
a. Whose urine sample has a positive result for the presence
of any controlled substance, the presence of which is without
legal justification or authorization;
b. Whose urine sample is deemed to be “untestable” by the
Drug Testing Laboratory, to include samples determined to be
a substance other than urine, or urine that has been adulterat-
ed or diluted with a foreign substance; and
c. Who are AWOL for more than 8 hours.
4. Upon notification that a member meets a criterion listed
above in paragraph 3, the member’s commander will order the
member, IAW procedures in AFI 90-507, Military Drug De-
mand Reduction Program, to submit to follow-up urinalysis
testing or re-inspection. This is not to be confused with “com-
mander-directed urinalysis.” If the member is on leave or TDY
at the time of the positive test result notification, the com-
mander will order the urinalysis immediately upon the mem-
ber’s return to duty. Follow-up testing and re-inspection shall
be repeated until a negative result is received by the testing fa-
cility. All other urinalysis testing policies remain in effect.
The military judge also found the following relevant facts “by at least a
preponderance of the evidence:”
[ ] Lt Col RK became . . . the [Appellee’s] commander. Prior to
taking command he attended the commander’s course hosted
by his [Major Command (MAJCOM)]. In 24 years of active du-
ty, this is his first command. [Appellee’s] case is the first time a
member of his command tested positive in a urinalysis (and the
only one to date).
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United States v. Bruno, Misc. Dkt. No. 2017-03
[ ] When DDR receives a positive urinalysis, it forwards the in-
formation to the medical review officer, Capt [AC], for a full
medical records search. Capt [AC] reviewed [Appellee’s] records
that covered the last eight years and prescriptions from 2011
through 2014.
....
[ ] On 23 August 2016, Lt Col [RK] received an email from
Drug Demand Reduction (DDR) indicating [Appellee] tested
positive in an earlier random urinalysis. Lt Col [RK] was in-
formed of the name of the drug [Appellee] tested positive for
and looked up the drug on google. . . . He then called and spoke
with a member of the legal office for advice, after which he
called OSI as directed by the legal advice. No one advised
Lt Col [RK] on the 2 BW/CC urinalysis re-inspection policy or
its existence.
[ ] On 23 August 2016, Capt [CVA], [Appellee’s] acting supervi-
sor since May 2016, and MSgt [CM], the additional duty first
sergeant, escorted [Appellee] to OSI after learning [Appellee]
had a positive urinalysis. . . .
[ ] SA [JR], OSI, questioned [Appellee] about amphetamine use
and later told [Appellee] he was investigating the alleged of-
fense of “Article 112” (without clarification or correction). . .
[ ] After OSI completed its processing of [Appellee], Capt [CVA]
and MSgt [CM] returned to OSI to pick up [Appellee]. SA [JR]
knew that per the 2 BW/CC’s urinalysis re-inspection policy
“anytime there was a hot urinalysis” there was an “automatic”
retest, although he did not know the policy required an ac-
cused’s commander to order an accused to re-test. SA [JR]
knew he did not have authority to order [Appellee] to submit to
a re-inspection urinalysis at DDR on 23 August 2016. SA [JR]
did not order [Appellee] to DDR or to accomplish a re-
inspection urinalysis. It was SA [JR’s] practice in over 40 drug
cases to remind inexperienced first sergeants of the wing uri-
nalysis re-inspection policy when they picked up a subject.
[ ] OSI did not provide Capt [CVA] or MSgt [CM] any infor-
mation as to what [Appellee] said or what occurred during the
preceding, approximate two hours at the OSI detachment. Per
OSI’s direction, Capt [CVA] and MSgt [CM] took [Appellee] to
DDR after departing OSI in order for [Appellee] to submit to a
urinalysis. Capt [CVA] understood DDR to be “part of the pro-
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United States v. Bruno, Misc. Dkt. No. 2017-03
cess” and told [Appellee] the same. Capt [CVA] did not know
about the wing’s urinalysis re-inspection policy until sometime
after 24 August 2016. Capt [CVA] did not order [Appellee] to
DDR or to submit to a re-inspection urinalysis.
[ ] Capt [CVA] escorted [Appellee] directly to DDR and once
signed into DDR, Capt [CVA] told [Appellee] he could not leave
DDR until he provided a sample. Per observer training, Capt
[CVA] believed [Appellee] had to remain in DDR once [Appel-
lee] handed over his military identification and until he provid-
ed a urine sample. Capt [CVA] did not hear MSgt [CM] convey
any order to [Appellee] that he had to submit to a urinalysis re-
inspection.
[ ] Lt Col [RK] received telephonic updates from his personnel
on the status of [Appellee’s] whereabouts and the investigation.
On 23 August 2016, one such phone call alerted Lt Col [RK] to
the existence of the wing commander’s urinalysis re-inspection
policy as [Appellee] was in route [sic] to DDR. Lt Col [RK] was
not aware of the policy prior to receiving the phone call inform-
ing him [Appellee] was being taken to DDR. The phone call was
informational only and Lt Col [RK] acknowledged receipt of the
information. Lt Col [RK] did not read the policy until sometime
after 23 August 2016. Lt Col [RK] did not order [Appellee], ei-
ther verbally or in writing, to submit to a re-inspection urinaly-
sis per the 2 BW/CC’s policy.
In addition to finding the aforementioned facts in her written ruling, the
military judge wrote “Further findings of the Court shall be addressed below,
and shall be based upon at least a preponderance of the evidence.”
The military judge found the Government “failed to meet its burden of
clear and convincing evidence that the collection and drug testing of [Appel-
lee’s] urine on 23 August 2016, was accomplished as part of a lawful inspec-
tion based on [Appellee’s] prior positive drug test.” Consequently, the military
judge concluded the second urinalysis “was not conducted pursuant to an in-
spection under [Mil. R. Evid.] 313, and is therefore an unlawful intrusion of
[Appellant’s] privacy and is suppressed.” The Government lodged this timely
appeal in response.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to hear this appeal under Article 62(a)(1)(B), UCMJ,
10 U.S.C. § 862(a)(1)(B), which authorizes the Government to appeal “[a]n
order or ruling which excludes evidence that is substantial proof of a fact ma-
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United States v. Bruno, Misc. Dkt. No. 2017-03
terial in the proceeding” in a court-martial where a punitive discharge may
be adjudged.
We review a military judge’s ruling on a motion to suppress evidence for
an abuse of discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F.
2008) (citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). The
military judge’s findings of fact are reviewed for clear error, but her conclu-
sions of law are reviewed de novo. United States v. Keefauver, 74 M.J. 230,
233 (C.A.A.F. 2015). “[T]he abuse of discretion standard of review recognizes
that a judge has a range of choices and will not be reversed so long as the de-
cision remains within that range.” United States v. Gore, 60 M.J. 178, 187
(C.A.A.F. 2004). However, “[a] military judge abuses h[er] discretion when
h[er] findings of fact are clearly erroneous, when [s]he is incorrect about the
applicable law, or when [s]he improperly applies the law.” United States v.
Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004). “In reviewing a ruling on a motion
to suppress, we consider the evidence in the light most favorable to the pre-
vailing party.” United States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016)
(citing Keefauver, 74 M.J. at 233).
Because this issue is before us pursuant to a Government appeal, we may
act only with respect to matters of law. Article 62(b), UCMJ. We may not
make findings of fact, as we are limited to determining whether the military
judge’s factual findings are clearly erroneous or unsupported by the record.
United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995). “When a court is
limited to reviewing matters of law, the question is not whether a reviewing
court might disagree with the trial court’s findings, but whether those find-
ings are ‘fairly supported by the record.’” Gore, 60 M.J. at 185 (quoting United
States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985)). “In an Article 62, UCMJ,
petition, this Court reviews the military judge’s decision directly and reviews
the evidence in the light most favorable to the prevailing party at trial.”
United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014) (citing United States v.
Baker, 70 M.J. 283, 287–88 (C.A.A.F. 2011)).
III. DISCUSSION
When the Defense moves to suppress evidence obtained from searches
and seizures, “the prosecution has the burden of proving by a preponderance
of the evidence that the evidence was not obtained as a result of an unlawful
search or seizure[.]” Mil. R. Evid. 311(d)(5)(A).
Evidence obtained from a lawful inspection in the Air Force is admissible
at trial when relevant and not otherwise inadmissible under the Military
Rules of Evidence. Mil. R. Evid. 313(a).
A lawful inspection is generally
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United States v. Bruno, Misc. Dkt. No. 2017-03
an examination of the whole or part of a unit, organization, in-
stallation, vessel, aircraft, or vehicle, including an examination
conducted at entrance and exit points, 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 disci-
pline of the unit, organization, installation, vessel, aircraft, or
vehicle.
Mil. R. Evid. 313(b) (emphasis added).
The authority to order an inspection under [Mil. R. Evid.] 313
is directly tied to a commander’s inherent authority; it is the
connection with command authority, and the commander’s re-
sponsibility to ensure fitness of a unit, that keeps a valid in-
spection scheme within constitutional parameters. This tie, or
connection, between the inspection and command authority is
important in justifying the reasonableness of what is otherwise
a warrantless search.
United States v. Miller, 66 M.J. 306, 308 (C.A.A.F. 2008) (citations omitted)
(citing United States v. Bickel, 30 M.J. 277, 280, 282, 285–86 (C.M.A. 1990)).
Despite finding Appellee was subject to the installation commander’s “val-
id Bickel follow-up urinalysis policy” and, in fact, met one of the policy’s crite-
ria requiring he submit to re-inspection after he tested positive for the pres-
ence of a controlled substance without legal justification or authorization, the
military judge concluded “[Appellee’s] urine sample was not collected at the
direction of his commander or any commander.” (Emphasis added.)
In her analysis, the military judge identified the first “issue” as “whether
the 2 BW/CC’s identification of certain officials with responsibility is to the
restriction of all others, and a requirement to effective implementation of an
inspection pursuant to this policy.” She resolved this issue by finding, “It is
and it does. Those under the 2 BW/CC are obligated to follow his policy, as he
expressed it.”
The “next question,” according to the military judge, was “whether such
an official ordered the [Appellee] in this instance [to submit to follow-up uri-
nalysis testing or re-inspection] as set forth in the policy.” The military judge
found that such an order was never issued.
Accordingly, the military judge reasoned that,
There is no reason the [unit] commander could not have com-
plied with the wing commander’s policy and he did so in the
first urinalysis in this case. There’s also no reason he could not
have complied later that same day. There is no prevention of
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United States v. Bruno, Misc. Dkt. No. 2017-03
ordering someone to pee, again. Without the order from the
[unit] commander, the presence of [Appellee] at DDR on the
23rd of August 2016, existed solely under the auspices of [Capt
CVA] bringing him there. [Capt CVA] had already taken him to
OSI that day indicating some authority over him, and clearly,
[Capt CVA] had no authority to issue a re-inspection of a uri-
nalysis.
Under these facts, there’s nothing that connects [Appellee’s]
presence at DDR and subsequent urinalysis with the legitimate
exercise of command authority. As [Appellee’s] urinalysis test
was not an incident [of] command and did not comply with the
2d Bomb Wing Commander’s policy or MRE 313. Operating a
urinalysis re-inspection program on autopilot without com-
mand input, as was done here, neither constitutes a legitimate
order to test nor satisfies the requirements of MRE 313.
(Emphasis added.)
In the military judge’s estimation, “[t]he discrepancies in the execution of
this policy are more than mere technicalities and undermine its legitimacy.”
Thus, the military judge found that the unit commander’s failure to fulfill the
policy’s purely ministerial function of notifying Appellee, through an order in
accordance with the Air Force instruction, rendered Appellee’s second urinal-
ysis “an unlawful search without probable cause” and “an unlawful intrusion
of [Appellee’s] privacy.” We find that the military judge abused her discretion
in reaching such conclusions.
The critical question is not whether Appellee’s unit commander or some
other subordinate on the installation lawfully ordered Appellee to submit to
the mandatory urinalysis as established in the installation commander’s re-
inspection policy, but rather, whether Appellee’s second urinalysis was a re-
inspection conducted as an incident of command consistent with Mil. R. Evid.
313. See Miller, 66 M.J. at 310 (Baker, J., dissenting). We answer this ques-
tion by agreeing with trial defense counsel’s assessment of Appellee’s second
urinalysis—“[I]t’s obviously a re-inspection.”
Appellee’s second urinalysis was conducted as an incident of the 2d Bomb
Wing Commander’s authority as set forth in what the military judge correctly
found to be a “valid Bickel follow-up urinalysis testing policy [that] was in
effect for military personnel tested under the authority of the Barksdale AFB
drug demand reduction program.” Moreover, no deviations from a regulation
or instruction that sets out the procedures for collection, transmission or test-
ing of Appellee’s second urine sample allegedly occurred; thus, evidence of the
second urinalysis is sufficiently reliable. See United States v. Pollard, 27 M.J.
11United States v. Bruno, Misc. Dkt. No. 2017-03
376, 377 (C.M.A. 1989). The only matter in issue is how Appellee happened to
arrive at the testing facility to provide a urine sample.
Upon the legal office’s advice, Appellee’s inexperienced commander di-
rected Capt CVA and MSgt CM to escort Appellee to AFOSI, where Appellee
was interviewed by SA JR. SA JR was aware of the installation commander’s
inspection policy and its standing order that military members on the instal-
lation whose urine previously tested positive for the presence of a controlled
substance without legal justification or excuse be “automatic[ally] retest[ed].”
As part of his standard practice or procedure, SA JR would remind a subject’s
escorts of the installation commander’s re-inspection policy requiring “auto-
matic” retesting and that the subject was required to go to the testing facility
for follow-on urinalysis. Accordingly, SA JR reasonably advised Appellee’s
escorts, Capt CVA and MSgt CM, to take Appellee to the testing facility so
Appellee could be retested. SA JR’s purpose in advising the escorts was to en-
sure that they were aware of the installation commander’s re-inspection poli-
cy. SA JR did not issue an independent re-inspection order on behalf of
AFOSI or in furtherance of his investigation. The escorts reasonably took Ap-
pellee to the testing facility for another urinalysis as “part of the process”4—
pursuant to the “valid Bickel follow-up urinalysis testing policy.” Appellee’s
urine sample was properly collected and tested. Under these facts, Appellee’s
presence at DDR and subsequent urinalysis are connected directly to the 2d
Bomb Wing Commander’s legitimate exercise of command authority.
The military judge found nothing to connect Appellee’s presence at DDR
and second urinalysis to a legitimate exercise of command authority because
her analysis was guided by an incorrect view and application of Mil. R. Evid.
313.5 Importantly, the military judge erred by focusing on the unit command-
4During his testimony on the motion, Capt CVA was examined by the military judge
and explained OSI’s directions as follows:
Q. To the greatest extent possible do you remember what OSI said to
you when you and [MSgt CM] went to pick up [Appellee]?
A. All they explained to us, ma’am, it was that simple, that the next
step for [Appellee], as part of the process was to take him over to
DDRP and provide a urine sample. They did say that the urine sam-
ple was already ordered and they would be expecting us to arrive—
the test, not the sample, but the test.
5The military judge first abused her discretion by erroneously holding the Govern-
ment to the higher burden of proof—clear and convincing evidence—applicable to
examinations to locate and confiscate weapons or contraband without making the
Rule’s requisite preliminary findings. See Mil. R. Evid. 313(b)(3).
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United States v. Bruno, Misc. Dkt. No. 2017-03
er’s failure to order Appellee to submit to the re-inspection in accordance with
AFI 90-507, as required by the installation commander’s policy. She found,
“While [Appellee’s] commander did have authority to order [Appellee] to
submit to a urinalysis retest, no military order in fact provided the means for
compelling [Appellee] to provide the specimen.” However, Mil. R. Evid. 313
does not require the subordinate “command input” upon which the military
judge insists. The installation commander’s re-inspection policy properly re-
moves discretion from subordinate commanders and merely imposes an ad-
ministrative responsibility upon those commanders to—as the military judge
acknowledged—“effective[ly] implement[ ] an inspection pursuant to this pol-
icy.” To require the command input seemingly endorsed by the military judge
would only provide “the opportunity for arbitrariness” such re-inspection pol-
icies seek to eliminate. See Bickel, 30 M.J. at 286. Here, the installation
commander’s choice to enhance the management or effectiveness of his policy
by requiring his subordinate commanders to order, in accordance with AFI
90-507, military members who meet the mandatory retesting criteria to sub-
mit to urinalysis as a continuation of the original inspection, although per-
missible, is not required. See Miller, 66 M.J. at 310 (Baker, J., dissenting).
Such a requirement “is for the benefit of the service, not the individual, and
does not create an individual right to exclude evidence under [Mil. R. Evid.]
313.” Id. The military judge abused her discretion in creating such a right
and suppressing relevant evidence obtained from a lawful re-inspection.
IV. CONCLUSION
The appeal of the United States under Article 62, UCMJ, is GRANTED.
The military judge’s ruling to grant the defense motion to suppress evidence
of Appellee’s 23 August 2016 urinalysis is REVERSED. The record is re-
turned to The Judge Advocate General for remand to the military judge for
action consistent with this opinion.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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