In United States v. Bruno, No. 2017-03 (A.F. Ct. Crim. App. Aug. 23, 2017) (link to slip op.), a three-judge panel of the Air Force CCA reverses a military judge’s ruling suppressing the results of a urinalysis, agreeing with the prosecution 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.
Slip op. at 2.
The accused – Second Lieutenant (O-1) Bruno – tested positive for methamphetamine on a random urinalysis, and then tested positive a second time on a follow-up urinalysis. The military judge suppressed the results of the second urinalysis after finding that it was the product of an interrogation by AFOSI (that was also suppressed). But the CCA finds that the second urinalysis was the product of a standing order that required follow-up urinalysis any time a member tests positive on a random urinalysis (a Bickel policy, named after United States v. Bickel, 30 M.J. 277, 287 (C.M.A. 1990), in which the court observed that “it was quite rational for Bickel’s company commander to determine whether any member of his unit who had tested positive on one occasion–and so was indicated by the test to be unfit for military duty–had corrected his substandard condition”).
The standing order at issue requires the commanding officer of the service member to order a second urinalysis, but Bruno’s commander didn’t actually give the order (or even know about the policy). As a result, the military judge concluded that:
the Government “failed to meet its burden of clear and convincing evidence that the collection and drug testing of [Appellee’s] urine on 23 August 2016, was accomplished as part of a lawful inspection based on [Appellee’s] prior positive drug test.” Consequently, the military judge concluded the second urinalysis “was not conducted pursuant to an inspection under [Mil. R. Evid.] 313, and is therefore an unlawful intrusion of [Appellant’s] privacy and is suppressed.”
Slip op. at 8. The panel, however, finds that:
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 reinspection policy, but rather, whether Appellee’s second urinalysis was a reinspection 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 question by agreeing with trial defense counsel’s assessment of Appellee’s second urinalysis—“[I]t’s obviously a re-inspection.”
Slip op. at 11. Observing (in a footnote) that the military judge erroneously applied a clear and convincing burden of proof, the panel concludes that:
[T]he military judge erred by focusing on the unit commander’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.” . . . 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 submit to urinalysis as a continuation of the original inspection, although permissible, 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.
Slip op. at 12-13.