                        UNITED STATES, Appellee

                                     v.

                  Benjamin AYALA, Airman First Class
                       U.S. Air Force, Appellant

                               No. 10-0013
                         Crim. App. No. S31550

       United States Court of Appeals for the Armed Forces

                         Argued April 6, 2010

                         Decided June 9, 2010

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


                                  Counsel


For Appellant: Captain Marla J. Gillman (argued); Major Shannon
A. Bennett (on brief).

For Appellee: Captain G. Matt Osborn (argued); Colonel Douglas
P. Cordova, Lieutenant Colonel Jeremy S. Weber, and Gerald R.
Bruce, Esq. (on brief).

Military Judge:    Gregory O. Friedland


        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ayala, No. 10-0013/AF


     Judge STUCKY delivered the opinion of the Court.

     At trial, the military judge convicted Appellant of using

illegal drugs, based on the results of two command-directed

urinalyses conducted as follow-ups to a previous positive random

drug test.   The military judge concluded that the follow-up

urinalyses were lawful inspections, not inadmissible searches.

Whether a follow-up urinalysis constitutes an inspection turns

on the purpose of that examination.      We granted review of the

following issue:

     WHETHER THE MILITARY JUDGE ERRED IN FINDING
     APPELLANT’S ADDITIONAL URINALYSES CONDUCTED PURSUANT
     TO UNITED STATES V. BICKEL, 30 M.J. 277 (C.M.A. 1990),
     WERE FOR A PERMISSIBLE PURPOSE.

We hold that the military judge did not err in finding that the

follow-up urinalyses were conducted for permissible purposes,

and affirm the judgment of the United States Air Force Court of

Criminal Appeals (CCA).

                                  I.

     A special court-martial consisting of a military judge

sitting alone convicted Appellant, consistent with his plea, of

one specification of using marijuana.     Article 112a, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2006).

Contrary to his pleas, the military judge convicted Appellant of

two specifications of using marijuana at other times, and one

specification of using cocaine.    Id.    The convening authority



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United States v. Ayala, No. 10-0013/AF


approved the adjudged sentence:    a bad-conduct discharge,

confinement for five months, forfeiture of $800.00 per month for

five months, and reduction to the lowest enlisted grade.      The

CCA affirmed.   United States v. Ayala, No. ACM S31550, 2009 CCA

LEXIS 266, at *9, 2009 WL 2211462, at *3 (A.F. Ct. Crim. App.

July 15, 2009) (unpublished).

                                  II.

      On January 30, 2007, the staff judge advocate (SJA)

proposed a new drug policy to the wing commander.   “This policy

would require all members whose urine tests positive for illegal

drugs to provide another sample for testing by the end of the

first duty day following receipt of a positive test result.”

The SJA provided several reasons for his recommendation,

including:

  •   “If the only evidence available at trial of illegal drug
      use is the positive urinalysis test, court members are
      frequently hesitant to convict the member for illegal drug
      use.”

  •   “Because of the increased opportunity for acquittal in
      illegal drug use prosecutions based solely on a positive
      urinalysis test, more often than not, the accused elects to
      litigate his case at trial. The costs associated with such
      litigation [are expensive].”

  •   “The proposed Urinalysis Re-Inspection provides an
      opportunity to secure a second positive test result against
      the member. . . . [which] would be available at
      trial. . . . [and] substantially increases the likelihood
      of conviction [or guilty plea] . . . .”

  •   Noting United States v. Bickel, 30 M.J. 277 (C.M.A. 1990),
      the SJA recommended the re-inspection “to further aid in


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United States v. Ayala, No. 10-0013/AF


     detecting drug abusers within our active duty population,
     potentially decrease litigation risks and costs, and
     potentially aid in swifter judicial action.”

Emphases added.

     Two days later, on February 1, 2007, the wing commander

announced the new policy and stated his purpose for adopting it:

     The purpose of urinalysis inspection is to ensure the
     security, military fitness, and good order and
     discipline. To fulfill that purpose, follow-up
     urinalysis inspection will be utilized as a
     continuation of the original random inspection. The
     unlawful use of controlled substances by a member of
     this installation has the potential to seriously
     undermine our missions, endanger the lives of other
     members, and negatively impact the nation’s security.
     Follow-up urinalysis inspections are part and parcel
     to the random urinalysis inspection program at [Davis-
     Monthan Air Force Base], and not a criminal
     investigative tool, regardless of the admissibility of
     such test results as evidence in [UCMJ] actions.

Emphases added.

     In June 2008, Appellant was randomly selected to provide a

urine sample.   In early July, when Appellant’s sample was

reported as being positive for marijuana, he was directed to

provide another urine sample for testing, pursuant to the policy

established by the wing commander on February 1, 2007.    A few

weeks later, when the second sample tested positive for

marijuana, Appellant was again directed to provide another urine

sample for testing.   This test yielded a positive result for

both marijuana and cocaine.




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United States v. Ayala, No. 10-0013/AF


     At trial, Appellant moved to suppress the follow-up

examinations as subterfuge searches.   As evidence on the motion,

the Government submitted, without defense objection, an

affidavit from the then-retired wing commander, which stated:

     The purpose of the policy was to ensure security,
     military fitness, and good order and discipline. As I
     stated in the 1 Feb [20]07 memorandum, the unlawful
     use of controlled substances by a member assigned to
     the installation has the potential to seriously
     undermine the mission, endanger the lives of other
     members, and negatively impact national security.
     Follow-up urinalysis inspections are part of the
     random urinalysis inspection program . . . and not a
     criminal investigation tool.

Applying the clear and convincing evidence standard, the

military judge found that Appellant’s urine samples were

collected “pursuant to a valid inspection” in accordance with

Military Rule of Evidence (M.R.E.) 313, and denied the motion.

                              III.

     Evidence obtained from inspections conducted in accordance

with M.R.E. 313 “is admissible at trial when relevant and not

otherwise inadmissible” under the Military Rules of Evidence.

M.R.E. 313(a).

     An “inspection” is an examination of the whole or part
     of a unit, organization, [or] installation, . . .
     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, [or]
     installation . . . . An examination made for the
     primary purpose of obtaining evidence for use in a
     trial by court-martial or in other disciplinary



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United States v. Ayala, No. 10-0013/AF


     proceedings is not an inspection within the meaning of
     this rule.

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

                                  A.

     At trial, the Government conceded that it had to establish

by clear and convincing evidence that the examinations were not

made for the primary purpose of obtaining evidence for trial.1

The military judge found that the Government had established by

clear and convincing evidence that the primary purpose of the

second and third urinalyses was not to obtain evidence for

courts-martial, given the wing commander’s sworn statements.

The military judge further reasoned that an otherwise valid

inspection does not become an illegal search simply because a

commander consults with a legal officer or uncovers

incriminating evidence.

                                  B.

     We have in the past held that “the military judge’s finding

regarding the ‘primary purpose’ is a matter of fact, the issue

of whether the examination is an inspection is a matter of law

that this Court will review de novo.”    United States v. Gardner,

41 M.J. 189, 191 (C.M.A. 1994); accord United States v. Shover,



1
  As the Government agreed at trial that it had to prove by clear
and convincing evidence that the examination was an inspection,
we need not determine whether that is the appropriate standard
in this case.

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United States v. Ayala, No. 10-0013/AF


45 M.J. 119, 122 (C.A.A.F. 1996).2     “Purpose and intent . . . are

themselves classic questions of fact.”     United States v.

McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997).     Although the

commander’s stated purpose of conducting an examination is not

dispositive of the issue, the “primary purpose” of an

examination is solely dependent upon the intent of the person

who ordered the examination.   This is a question of historical

fact for the military judge to determine and which we review for

clear error.   Shover, 45 M.J. at 122; cf. McCarthy, 47 M.J. at

165 (reviewing for clear error whether brig officials had an

intent to punish); United States v. Curtis, 33 M.J. 101, 105

(C.M.A. 1991) (reviewing for clear error the military judge’s

ruling as to discriminatory intent of trial counsel in

exercising a peremptory challenge).3


2
  More recently, we suggested that the “primary purpose” of an
examination might be a mixed question of fact and law. United
States v. Jackson, 48 M.J. 292, 295 (C.A.A.F. 1998) (citation
and quotation marks omitted).
3
  The Supreme Court has held that questions of intent or purpose
are still questions of fact reviewable for clear error, even if
the result in a case turns on the factual finding. See Pullman-
Standard v. Swint, 456 U.S. 273, 286 & n.16, 287-88 (1982)
(civil context; Fed. R. Civ. P. 52(a)); Maine v. Taylor, 477
U.S. 131, 145 (1986) (criminal context) (“[T]he considerations
underlying Rule 52(a) -- the demands of judicial efficiency, the
expertise developed by trial judges, and the importance of
firsthand observation -- all apply with full force in the
criminal context . . . . Accordingly, the ‘clearly erroneous’
standard of review long has been applied to nonguilt findings of
fact by district courts in criminal cases.”) (citation omitted);
see also Lynch v. City of New York, 589 F.3d 94, 105 (2d Cir.
2009) (primary purpose of breathalyzer policy); United States v.

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United States v. Ayala, No. 10-0013/AF


                                IV.

     In this case, the military judge had three pieces of

evidence before him relating to the purpose of the re-

examinations:   (1) the SJA’s legal memorandum to the wing

commander focusing on the benefits of additional urinalyses in

obtaining convictions; (2) the wing commander’s subsequent

policy memorandum to his commanders and first sergeants stating

military purposes; and (3) the wing commander’s affidavit

reiterating those military purposes.

     While the SJA’s memorandum is strong evidence of his intent

in recommending the retesting policy be implemented, our focus

is on the commander’s purpose in ordering the examination, and

we do not attribute to the commander “every instance of advice

or expression of opinion by an SJA.”   United States v. Hamilton,

41 M.J. 32, 37 (C.M.A. 1994).

     The wing commander initially stated that his purpose in

ordering the re-examinations was to ensure “security, military

fitness, and good order and discipline,” and he subsequently

reaffirmed that purpose in his affidavit.   That comports with

M.R.E. 313(b)’s definition of an inspection:   “an

examination . . . conducted as an incident of command the

primary purpose of which is to determine and to ensure the


Green, 293 F.3d 855, 859 (5th Cir. 2002) (primary purpose of
checkpoint); United States v. Davis, 270 F.3d 977, 980 (D.C.


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United States v. Ayala, No. 10-0013/AF


security, military fitness, or good order and discipline of the

unit.”   Appellant offered no objection to the admission of the

wing commander’s affidavit.   If Appellant had desired to further

test the purpose of the policy, he could have sought to depose

the wing commander or demand his presence at trial so he would

be subject to cross-examination.       Appellant did not do so, and

did not present any other evidence showing that the

examination’s purpose was other than the one announced by the

wing commander.

     As such, the military judge’s finding that the Government

had proved by “clear and convincing” evidence that the

examination was conducted “to ensure the security, military

fitness and good order and discipline of the 355th Wing” was not

clearly erroneous.   That being the case, the military judge did

not err in finding that Appellant’s additional urinalyses were

conducted for a permissible purpose.

                                V.

     The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.




Cir. 2001) (same).

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United States v. Ayala, No. 10-0013/AF


     EFFRON, Chief Judge, with whom ERDMANN, Judge, joins

(dissenting):

     A drug testing program based upon misapplication of the law

governing inspections produced the evidence used to convict

Appellant of the charges at issue.    The prosecution at trial

failed to meet its burden of demonstrating by clear and

convincing evidence that the evidence was obtained from a lawful

inspection.    For the reasons set forth below, I would set aside

the findings at issue and remand the case for further

proceedings.



                    I.   SEARCHES AND INSPECTIONS

     Military law provides a critical distinction between

searches and inspections.    Under the Military Rules of Evidence

(M.R.E.), a search of a person or area for specified property or

evidence may be authorized by competent military or civilian

authority based upon probable cause.    M.R.E. 315.    In the

absence of probable cause, evidence obtained from a reasonable

search is admissible under the limited circumstances specified

in M.R.E. 314.

     M.R.E. 313, which governs military inspections, contains

substantive and procedural provisions that reinforce the

distinction between inspections and searches.       In pertinent

part, the rule defines an inspection as “an examination . . .
United States v. Ayala, No. 10-0013/AF


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 . . . .”

M.R.E. 313(b).    An inspection may include an examination to

ensure that “personnel are present, fit, and ready for duty.”

Id.     An inspection may include “an examination to locate and

confiscate unlawful weapons and other contraband,” and may

include an order “to produce body fluids, such as urine . . . .”

Id.     However, 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” under the

rule.    Id.   In short, the determination of whether an

examination constitutes an inspection or a search depends on its

primary purpose.

        When “a purpose of an examination is to locate weapons or

contraband,” the rule sets forth a specific procedure for

determining whether the examination is a search or an

inspection.    Id.   In pertinent part, the rule provides that when

“specific individuals are selected for examination . . . the

prosecution must prove by clear and convincing evidence that the

examination was an inspection within the meaning of this rule.”

Id.

        Depending on the circumstances, a drug test designed to

locate illegal substances may constitute an inspection or a


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United States v. Ayala, No. 10-0013/AF


search.   As with any other examination for contraband, the

determination of whether a drug test is an inspection or a

search depends on whether the prosecution can meet the burden of

establishing by clear and convincing evidence that the

circumstances constituted an inspection under the rule.    The

distinction is crucial.    If the examination is a search, the

evidence is inadmissible unless the prosecution can establish

that the search was an authorized probable cause search under

M.R.E. 315, or that the search fits within an exception under

M.R.E. 314.     If, however, the prosecution establishes by clear

and convincing evidence that the examination constituted an

inspection, then the evidence is admissible without regard to

the requirements of M.R.E. 314 or 315.    See M.R.E. 313(a).



          II.   THE DRUG TESTING PROGRAM DESIGNED BY THE SJA

     In the present case, the SJA recommended that the unit

commander approve and implement the SJA’s proposal for a

“Urinalysis Re-Inspection Policy.”     Under the SJA’s proposed

policy, servicemembers whose urine tested positive for illegal

drugs would be required to provide another sample for testing.

The SJA included with his policy proposal an “attached

memorandum” for the commander to sign to implement the program.

     The SJA’s recommendation memorandum describes, defends, and

recommends a program of drug testing that focuses expressly and


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United States v. Ayala, No. 10-0013/AF


directly on the prosecution of drug cases.    The SJA informed the

commander that:    “If the only evidence available at trial of

illegal drug use is the positive urinalysis test, court members

are frequently hesitant to convict the member for illegal drug

use.”    The SJA expressed concern that “the increased opportunity

for acquittal in illegal drug use prosecutions based solely on a

positive urinalysis test,” meant that “more often than not, the

accused elects to litigate his case at trial,” leading to “costs

associated with such litigation . . . .”

        The SJA further stated that the proposed policy would

remedy this problem by creating the potential for the court-

martial to consider two positive test results.    In his opinion,

that would “increase[] the likelihood of conviction if the trial

is litigated”; establish “a significant[] likelihood that the

member would plead guilty”; and incentivize members to “request

early and rapid disposition of charges associated with the

initial positive test before the results of the second test are

known.”    The SJA recommended that the commander establish the

retesting program “to further aid in detecting drug abusers

within our active duty population, potentially decrease

litigation risks and costs, and potentially aid in swifter

judicial action.”

        The SJA’s recommendation memorandum, infused with concern

about the litigation of drug cases, constituted a proposal to


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United States v. Ayala, No. 10-0013/AF


use drug testing “for the primary purpose of obtaining evidence

for use in a trial by court-martial or other disciplinary

proceedings.”    M.R.E. 313(b).   As such, the proposal amounted to

a proposal to conduct searches, not inspections.    See id.



          III.    THE COMMANDER’S IMPLEMENTING MEMORANDUM

     Two days after receiving the SJA’s proposal, the commander

signed an implementing memorandum entitled “Urinalysis Re-

Inspection.”    The implementing memorandum set forth the

program’s requirements and included the following:

     The purpose of urinalysis inspection is to ensure the
     [sic] security, military fitness, and good order and
     discipline. To fulfill that purpose, follow-up
     urinalysis will be utilized as a continuation of the
     original random inspection. The unlawful use of
     controlled substances by a member of this installation
     has the potential to seriously undermine our missions,
     endanger the lives of other members, and negatively
     impact the nation’s security. Follow-up urinalysis
     inspections are part and parcel to the random
     urinalysis inspection program [at the base], and not a
     criminal investigative tool, regardless of the
     admissibility of such test results as evidence in
     Uniform Code of Military Justice actions. Follow-up
     urinalysis inspections should not interfere with or
     impede any potential criminal investigation.

     Subsequently, at trial, the Government introduced into

evidence a two-paragraph affidavit from the commander taken

approximately twenty months after implementation of the policy.

In the affidavit, which echoed the implementing memorandum, the

commander stated:



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United States v. Ayala, No. 10-0013/AF


     The purpose of the policy was to ensure security,
     military fitness, and good order and discipline. As I
     stated in the 1 Feb 07 memorandum, the unlawful use of
     controlled substances by a member assigned to the
     installation has the potential to seriously undermine
     the mission, endanger the lives of other members, and
     negatively impact national security. Follow-up
     urinalysis inspections are part of the random
     urinalysis inspection program at Davis-Monthan AFB,
     and not a criminal investigation tool.

     In the present appeal, the findings at issue were based on

evidence obtained under the retesting program.   The military

judge denied a defense motion to suppress the evidence, ruling

that the retesting program constituted a valid inspection.



                          IV.   DISCUSSION

     The SJA provided the commander with a detailed

recommendation for a program that would serve the purpose of

enhancing the prosecution’s litigation posture in drug testing

cases.   Under M.R.E. 313(b), 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.”   Do the brief

statements in the implementing memorandum, echoed in the

commander’s affidavit, meet the Government’s burden to establish

by “clear and convincing evidence that the examination was an

inspection” under M.R.E. 313(b)?




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United States v. Ayala, No. 10-0013/AF


     The SJA’s policy proposal to the commander came in the form

of a recommendation.   As such, the commander was free to reject

the SJA’s views.   In the two-day period between receipt of the

SJA’s recommendation and issuance of the commander’s

implementing memorandum, it is possible that the commander

engaged in or otherwise obtained independent legal research,

identified the deficiencies in the SJA’s proposal, rejected the

SJA’s approach, and drafted his own implementing memorandum.

Did the prosecution prove, by clear and convincing evidence,

that the commander did so?

     The Government had the opportunity at trial to demonstrate

that the implementing memorandum signed by the commander

differed from the draft attached to the SJA’s recommendation

memorandum, but the Government did not place the draft into

evidence or otherwise offer evidence on that matter.      The

Government had the further opportunity to offer testimony by the

commander, the SJA, or other officials to demonstrate that the

commander had rejected the policy’s purpose expressed in the

SJA’s recommendation memorandum.       The Government did not do so.

The prosecution offered no evidence on those points, and the

military judge entered no findings of fact as to whether the

commander had rejected or adopted the views of his SJA.

     The record in this case reflects two competing narratives.

In one, the SJA drafted a policy for an improper purpose,


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United States v. Ayala, No. 10-0013/AF


provided the commander with an implementing memorandum that

masked that purpose behind the facade of an inspection policy,

and the commander adopted the policy in that context.    In the

second, the SJA drafted a policy for an improper purpose, the

commander rejected that purpose, and the commander drafted a new

implementing policy with a proper purpose.   In the face of the

SJA’s detailed and unambiguous recommendation that the commander

adopt a program to produce evidence for use in courts-martial,

the prosecution was obligated to fill in the details -- to

demonstrate by clear and convincing evidence that the commander

rejected the SJA’s improper purpose for the program and that he

authorized an inspection program for a proper purpose.   The

prosecution did not do so.   Because the prosecution failed to

meet its burden, I respectfully disagree with the majority’s

decision to affirm.




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