                        UNITED STATES, Appellant

                                         v.

                  Michael C. MILLER, Senior Airman
                      U.S. Air Force, Appellee

                                  No. 07-5004
                       CCA Misc. Dkt. No. 2007-02

       United States Court of Appeals for the Armed Forces

                          Argued January 7, 2008

                           Decided May 20, 2008

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. BAKER, J., filed a dissenting opinion,
in which EFFRON, C.J., joined.

                                     Counsel


For Appellant: Captain Jamie L. Mendelson (argued); Colonel
Gerald R. Bruce and Captain Jefferson E. McBride (on brief);
Major Matthew S. Ward, Major Donna S. Rueppell, and Captain Ryan
N. Hoback.

For Appellee: Dwight H. Sullivan, Esq. (argued); Lieutenant
Colonel Mark R. Strickland and Captain Anthony D. Ortiz (on
brief).

Military Judge:    Gary M. Jackson


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Miller, No. 07-5004/AF


     Judge STUCKY delivered the opinion of the Court.

     The Judge Advocate General of the Air Force certified an

issue to this Court under Article 67(a)(2), Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2000), asking

whether a military judge abused his discretion in granting a

motion to suppress all evidence resulting from Appellee’s

urinalysis.   We find that the military judge did not abuse his

discretion in suppressing the urinalysis results.1

                                 I.

     Senior Master Sergeant (SMSgt) Van Lingen was assigned as

the Drug Demand Reduction Program Manager and the Drug Testing

Program Administrative Manager at Westover Air Reserve Base,

Massachusetts, an Air Force Reserve installation.    As part of

the installation drug testing program run with the tacit

approval of the installation commander, SMSgt Van Lingen used a

computer program to generate a random list of names of

individuals to be tested.   It also produced the notification

letters provided to personnel selected for testing.

     Appellee was a reservist who was serving an extended active

duty tour.    SMSgt Van Lingen’s computer program randomly


1
  Appellee’s motion to attach documents in support of a motion to
dismiss is granted. Appellee’s motion to strike Appellant’s
opposition to Appellee’s motion to dismiss is denied, and
Appellee’s motion to dismiss for lack of jurisdiction is denied.
See United States v. Lopez de Victoria, 66 M.J. 67, 71 (C.A.A.F.
2008).

                                  2
United States v. Miller, No. 07-5004/AF


selected Appellee to provide a urine specimen for drug testing.

Major Ryan, an Air Reserve Technician (ART), signed the letter

notifying Appellee of the requirement to provide a urine

specimen for testing.

     ARTs are full-time civilian employees of the Air Force who

are also members of the Air Force Reserve unit by which they are

employed in their civilian capacity.    Dep’t of the Air Force,

Instr. 36-108, Air Reserve Technician (ART) Program, Attachment

1 (July 26, 1994).   In his civilian capacity, Major Ryan wore

his military uniform and served as the assistant mission support

officer.   When serving on active duty, he was assigned as the

mission support group vice commander.   Major Ryan was serving in

his civilian, not his military, capacity when he signed the

letter notifying Appellee that he was required to provide a

urine specimen.

     Appellee had not been suspected of using drugs before his

positive urinalysis test.   Once he tested positive for cocaine,

however, agents from the Air Force Office of Special

Investigations called Appellee into their office for

questioning.   In response to their questions, Appellee admitted

to using cocaine on about four occasions since he was ordered

onto active duty status.

     At trial, Appellee moved to suppress his confession and the

results of his urinalysis test.   He argued that the test was the


                                  3
United States v. Miller, No. 07-5004/AF


product of an unlawful order issued by a civilian ART who did

not have command authority to issue the order and that the

confession was the fruit of the unlawful urinalysis.     The

Government opposed the motion, arguing the order was lawful and

a product of the installation commander’s random urinalysis

program.   The military judge heard evidence and ruled that the

testing of Appellee’s urine was based on an unlawful order and

was thus not incident to command.      He suppressed the urinalysis

results as an unlawful search and the confession as fruit of

that search.

     The Government gave proper notice and appealed to the

United States Air Force Court of Criminal Appeals under Article

62, UCMJ, 10 U.S.C. § 862 (2000).      The Court of Criminal Appeals

affirmed the military judge’s rulings.     United States v. Miller,

Misc. Dkt. No. 2007-02, 2007 CCA LEXIS 252, at *8, 2007 WL

2050646, at *4 (A.F. Ct. Crim. App. June 26, 2007)

(unpublished).   The Air Force Judge Advocate General certified

the issue to this Court for consideration.

                                 II.

     We review a military judge’s decision to suppress or admit

evidence for an abuse of discretion.     United States v. Beckett,

49 M.J. 354, 356-57 (C.A.A.F. 1998); United States v. Ayala, 43

M.J. 296, 298 (C.A.A.F. 1995).   A military judge abuses his

discretion when his findings of fact are clearly erroneous, the


                                  4
United States v. Miller, No. 07-5004/AF


court’s decision is influenced by an erroneous view of the law,

or the military judge’s decision on the issue at hand is outside

the range of choices reasonably arising from the applicable

facts and the law.   See United States v. Gore, 60 M.J. 178, 187

(C.A.A.F. 2004) (citing United States v. Wallace, 964 F.2d 1214,

1217 n.3 (D.C. Cir. 1992); United States v. Sullivan, 42 M.J.

360, 363 (C.A.A.F. 1995)).

     Evidence obtained from a military inspection is admissible

at trial when relevant and not otherwise inadmissible under the

Military Rules of Evidence.   Military Rule of Evidence (M.R.E.)

313(a).

    An “inspection” is an examination of the whole or part
    of a unit, organization, installation, 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 discipline of the unit, organization,
    installation, vessel, aircraft, or vehicle. . . . An
    order to produce bodily fluids, such as urine, is
    permissible in accordance with this rule.

M.R.E. 313(b) (emphasis added).

     The authority to order an inspection under M.R.E. 313 is

directly tied to a commander’s inherent authority; it is the

connection with command authority, and the commander’s

responsibility to ensure fitness of a unit, that keeps a valid

inspection scheme within constitutional parameters.   United

States v. Bickel, 30 M.J. 277, 280, 282 (C.M.A. 1990).   This



                                  5
United States v. Miller, No. 07-5004/AF


tie, or connection, between the inspection and command authority

is important in justifying the reasonableness of what is

otherwise a warrantless search.   Id. at 285-86.

     Air Force installation commanders are tasked with ensuring

that the service’s drug testing program is conducted in

accordance with all applicable directives.   Dep’t of the Air

Force, Instr. 44-120, Drug Abuse Testing Program (July 1, 2000)

[hereinafter AFI 44-120].   Unit commanders are responsible for

directing that drug tests be conducted.   Id. para. 4.7.6.1.    A

unit is a “military organization constituted by directives

issued by HQ USAF.”    Dep’t of the Air Force, Instr. 38-101, Air

Force Organization para. 2.1.2. (Apr. 4, 2006) [hereinafter AFI

38-101].   Thus, we recognize that the term “unit commander” is

not limited to an individual’s immediate commander, but also

includes higher-level commanders in the chain of command.

     As discussed earlier, a valid inspection is conducted as an

incident of command.   But the Government failed to establish

that any commander in Appellee’s chain of command at the

installation directed that a test be conducted.    Although SMSgt

Lingen testified that he ran the installation-wide urinalysis

program on behalf of the installation commander, the Government

failed to prove the existence of any local policy letter,

directive, or other instruction to establish that Westover Air




                                  6
United States v. Miller, No. 07-5004/AF


Reserve Base had such a program.2    We recognize that a commander

can establish a drug testing program such that random selection

by the computer program equates to a direction to test.    There

is, however, no evidence such was the case at Westover Air

Reserve Base.   At the time he signed the letter directing

Appellee to provide a urine specimen, Major Ryan was in civilian

status and, therefore, not able to act as a commander.    AFI 38-

101 para. 2.1.2.1.1; Op. JAGAF 1993/19, 5 Civ. Law Ops. 233, 234

(Feb. 22, 1993).   Under these facts, there is nothing that

connects the letter directing Appellee to test with a legitimate

exercise of command authority.   Thus Appellee’s urinalysis test

was not an incident of command and did not comply with M.R.E.

313.   Operating an inspection program on “auto-pilot,” without

command input, as was done here, neither constitutes a

legitimate order to test nor satisfies the requirements of

M.R.E. 313.




2
  The dissent would find that an Aerospace Medicine Operating
Instruction, promulgated by the order of the 439th Aerospace
Medical Squadron Commander, constitutes an exercise of the
installation commander’s inherent command authority to inspect
members assigned to the installation. However, there is no
evidence the installation commander delegated his
responsibilities under AFI 44-120 to the Aerospace Medical
Squadron Commander, nor is there evidence the Aerospace Medical
Squadron Commander was in Appellee’s chain of command for the
purposes of M.R.E. 313 inspections.

                                 7
United States v. Miller, No. 07-5004/AF


                              III.

     Under these circumstances, we affirm the decision of the

United States Air Force Court of Criminal Appeals and sustain

the military judge’s suppression of Appellee’s urinalysis and

the resulting confession.




                                8
United States v. Miller, No. 07-5004/AF


     BAKER, Judge, with whom EFFRON, Chief Judge, joins

(dissenting):

     I disagree with the majority’s conclusion that there was no

command-directed urinalysis program at Westover Air Reserve Base

(ARB).   To the contrary, the installation commander established

a program under Military Rule of Evidence (M.R.E.) 313; Appellee

was selected to provide a urinalysis by a neutral official who

used an authorized random selection process compliant with

M.R.E. 313; Appellee provided a sample; the result was positive;

and, it was admissible under M.R.E. 313.   Therefore, I would

reverse the decision of the United States Air Force Court of

Criminal Appeals.   Moreover, the lawful order analysis applied

by the military judge in suppressing the urinalysis in this

case, is confusing and off-target and should not be affirmed by

this Court.   As a result, I respectfully dissent.

     The majority invalidates the result of Appellee’s

urinalysis test on the grounds that:

(1) “[T]he Government failed to establish that any commander in
appellee’s chain of command directed that a test be conducted”;

(2) There is “no evidence” that there was a command-directed
drug testing program at Westover Air Reserve Base; and

(3) “[T]here is nothing that connects the letter directing
Appellee to test with a legitimate exercise of command
authority.”

United States v. Miller, __ M.J. __ (6-7) (C.A.A.F. 2008).
United States v. Miller, No. 07-5004/AF


  In my view, each of these conclusions is erroneous based on

the following facts and analysis:

     First, Air Force Instruction 44-120 states at the top in

     bold type:    “BY ORDER OF THE SECRETARY OF THE AIR FORCE.”

     Dep’t of the Air Force, Instr. 44-120, Drug Abuse Testing

     Program at 1 (July 1, 2000) [hereinafter AFI 44-120].   It

     also states:   “COMPLIANCE WITH THIS PUBLICATION IS

     MANDATORY.”    Further, the instruction directs commanders to

     ensure that drug abuse testing programs aboard their

     installations are conducted in accordance with all

     applicable higher headquarters guidance.   Id. para,

     4.7.1.1.   It also directs that random inspections “should

     be the predominate type of test used.” Id. para. 4.7.1.2.

     In essence, the instruction assigns overall responsibility

     for drug program implementation to installation commanders.


     Second, AFI 44-120 directs that the Reserve Medical Unit

     Commander (in the case of a reserve base) shall serve as

     the office of primary responsibility for installation drug

     testing programs.   Id. para. 4.7.2.


     Third, the publicly accessible website for Westover Air

     Reserve Base lists Brigadier General (Brig Gen) Wallace W.

     Farris Jr. as “commander of the Air Force Reserve Command’s

     439th Airlift Wing, Westover Air Reserve Base, Mass.”


                                  2
United States v. Miller, No. 07-5004/AF


     Westover Air Reserve Base, http://www.westover.afrc.af.mil

     (last visited Apr. 4, 2008).     Brig Gen Farris is the most

     senior officer listed and there is no other officer listed

     as the base commander.


     Fourth, the record includes a copy of Aerospace Medicine

     Squadron Operating Instruction 44-104 promulgated on

     January 4, 2005, “BY ORDER OF THE COMMANDER 439th AEROSPACE

     MEDICINE SQUADRON.”   Dep’t of the Air Force, Aerospace

     Medicine Operating Instr. 44-104, Drug Abuse Testing

     Program at 1 (Jan. 4, 2005) [hereinafter AMDS Operating

     Instruction].   According to the website, the 439th

     Aerospace Medicine Squadron is a subordinate command under

     the 439th Airlift Wing at Westover ARB.    The second

     sentence of the AMDS Operating Instruction states that it

     “directs the 439th Aerospace Medicines Squadron’s

     responsibilities in the Drug Demand Reduction Control

     Program at Westover ARB, MA.”     Id. (emphasis added).   The

     defense did not contend at trial, and the military judge

     did not find, that the AMDS Operating Instruction was

     invalid, or that Appellee was not subject to the

     instruction.    On the contrary, both parties and the

     military judge proceeded on the basis that the program was

     in existence and that Appellee was subject to it.



                                  3
United States v. Miller, No. 07-5004/AF


     Finally, this directive states that “Once selected and

     notified for testing, only [the] 439th Airlift Wing

     Commander can release an individual from testing.”      Id.

     para 4.2.

     Based on the foregoing, the medical squadron generated

Appellee’s name through random selection and conveyed his name

to Major (Maj) Ryan for notification.   Thus, Appellee was

directed to undergo random urinalysis based on the authority of

the installation commander, Brig Gen Farris, pursuant to the

Secretary of the Air Force’s directive.   Brig Gen Farris

exercised his command authority through the Aerospace Medicine

Squadron, as provided in the AFI 144-120.

     Notwithstanding the existence of these two directives, the

majority leaves one to conclude that:   (1) Brig Gen Farris

ignored the secretary’s directive to establish a urinalysis

program, (2) the Aerospace Medicine Squadron commander

purportedly acted with the authority of the installation

commander without having in fact received authority from the

installation commander to do so, and/or (3) individuals selected

for testing could obtain permission from the wing commander for

exemption from a urinalysis program that, according to the

majority, was never authorized by him in the first place.     A

more precise record might indicate exactly when, where, and how

the installation commander, or his predecessors, ordered


                                4
United States v. Miller, No. 07-5004/AF


implementation of the base urinalysis program.   Nonetheless,

this record conclusively indicates that the program at Westover,

ARB, was conducted as an incident of command.

     As a result, any legal issues surrounding Maj Ryan’s

authority to issue an order are not relevant.1   As indicated

during his testimony, Maj Ryan was performing a ministerial

function in communicating to Appellee his selection for random

urinalysis pursuant to the base testing program.2   Thus, as the

Government has noted, the real issue is not whether the order

signed by Maj Ryan was lawful, but rather, whether the

urinalysis inspection was administered properly as an incident

of command in accordance with M.R.E. 313.   The short answer is

yes; it was conducted as an incident of Brig Gen Farris’s

command in accordance with the requirements set forth by the

Secretary of the Air Force.

     As a separate matter, I think it important for this Court

to distinguish its analysis from that used at trial.   The

military judge’s analysis is erroneous as applied to M.R.E. 313.


1
  It might be a different matter had Appellee been charged with
violating Maj Ryan’s order, but here the only matter in issue
was the procedure used to seize Appellee’s urine.
2
  Maj Ryan himself testified that he was not issuing an order at
the time he directed Appellee to report for a urinalysis,
instead he was performing the ministerial function of
notification incident to the installation commander’s directive
that Appellee submit to a urinalysis.



                                5
United States v. Miller, No. 07-5004/AF


The military judge erred by focusing on the authority to issue a

punitive order under Article 92, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 892 (2000).   There is no requirement

under M.R.E. 313 that an individual be notified of his/her

selection to participate in an inspection through a punitive

order under Article 92, UCMJ.   If the service chooses to enhance

its management of the urinalysis program by requiring issuance

of a punitive and enforceable order, that is a matter of

internal management.   A regulation providing for communication

of selection through a punitive order, although permissible, is

not required.   Such a regulation is for the benefit of the

service, not the individual, and does not create an individual

right to exclude evidence under M.R.E. 313.   See United States

v. Caceres, 440 U.S. 741, 752-53 (1979). The critical question

is whether such an inspection is conducted as an incident of

command consistent with M.R.E. 313.

     Further, the analysis is problematic to the extent it is

viewed as applying to lawful orders generally.   Quoting an Air

Force Instruction and an Air Force Court of Criminal Appeals

case, the military judge concluded:

     For an “inspection order” or order to submit to a random
     urinalysis to be lawful there must be, inter alia, a unity
     of status between the commander who issues the order and
     the subordinate who receives the order. “Commanders must
     have unity of status with their troops to fully enforce
     their orders. Conversely, before exposing a member who is
     subjected to the UCMJ to disciplinary action for an offense


                                 6
United States v. Miller, No. 07-5004/AF


        based on a commander’s order, it is evident that both the
        member and the commander must be subject to the UCMJ.”

        . . . .

        “Although they may hold supervisory positions and provide
        work direction, civilians cannot command Air Force units. .
        . .”

Emphasis and citations omitted.    Based on these factors the

military judge further concluded that Maj Ryan “was not on

active duty, was not subjected to the UCMJ and thus did not have

unity of status with the Accused . . . As such . . . Major

[Ryan’s] 12 September 2006 written order to the Accused to

provide a urine sample was unlawful.”

        The concepts of “unity of status,” jurisdiction under the

UCMJ, and “command” may be helpful in determining whether an

action is taken as an “incident of command.”3    Certainly, if an

inspection is not conducted as an incident of command (or is not

otherwise authorized), then an order to submit to such an

inspection would not be lawful.    These factors may also be

helpful in determining whether to prosecute under Article 92,

UCMJ.    However, these factors are not generally determinative as

to whether an order is “lawful” when this term is used in a more

common vernacular as opposed to its meaning under Article 92,


3
  I say “may,” because the nomenclature seems to be drafted for
lawyers by lawyers, rather than for those personnel who most
need to understand the concept of lawful command, the officers
who exercise it and the airmen who are subject to it.



                                   7
United States v. Miller, No. 07-5004/AF


UCMJ.     For sure, Maj/Mr. Ryan could not have issued a lawful

order while acting in his civilian capacity.     However, the

President, Secretary of Defense, and Secretary of the Air Force

most certainly can issue “lawful” orders to military personnel,

notwithstanding the absence of any unity of status with the

military personnel over whom they exercise constitutional and

statutory command, in the case of the President and the

Secretary of Defense,4 or administrative control, in the case of

the Secretary of the Air Force.     Recall that AFI 44-120, at

issue in this case, was transmitted in the form of an “ORDER”

from the Secretary of the Air Force.

        Reliance on the factors enunciated by the military judge to

determine whether an order is lawful might also place in doubt

the status of many general, or standing orders, if applied

literally and not otherwise limited to questions involving

M.R.E. 313.     Consider, for instance, the case of a commanding

general’s standing orders that remain in effect after the

general leaves command and thus, loses “unity of status” with

the members of that command.

4
  “Unless otherwise directed by the President, the chain of
command to a unified or specified combatant command runs –-

        (1) from the President to the Secretary of Defense; and

        (2) from the Secretary of Defense to the commander of the
            combatant command.”

10 U.S.C. § 162(b) (2000).

                                   8
