Consent Urinalysis

  1. militarydefenselawyers331A urinalysis is constitutional if obtained with consent. Mil. R. Evid 314(e).
  2. Consent must be voluntary under totality of the circumstances. United States v. White, 27 M.J. 264 (C.M.A. 1988).
    1. Consent is involuntary if commander announces his intent to order the urine test should the accused refuse to consent. Mil. R. Evid. 314(e)(4).
    2. Consent is voluntary if the commander does not indicate his “ace in the hole” (authority to order a urinalysis). United States v. White, 27 M.J. 264 (C.M.A. 1988). See also United States v. Whipple, 28 M.J. 314 (C.M.A. 1989). Consent was voluntary where accused never asked what options were and commander intimated that he could order him to
      give a sample. See also United States v. Vassar, 52 M.J. 9 (C.A.A.F. 1999) (permissible to use trickery to obtain consent as long as consent was not coerced).
    3. If Soldier asks “what if I do not consent?”
      1. United States v. Radvansky, 45 M.J. 226 (C.A.A.F. 1996).
        Totality of the circumstances, not a bright-line rule, controls
        consent to urinalysis in the face of a command request.
        Notwithstanding First Sergeant’s comment that accused could
        “give a sample of his own free will or we could have the
        commander direct you to do so,” accused voluntarily consented
        to urinalysis. The mere remark that a commander can authorize
        a search does not render all subsequent consent involuntary.
      2. But see United States v. White, 27 M.J. 264 (C.M.A. 1988).
        Consent is involuntary if commander replies that he or she will
        order urine test.
    4. Consent is voluntary if commander meaningfully explains the
      consequences of a consent sample versus a fitness for duty or probable
      cause sample. United States v. White, 27 M.J. 264, 266 (C.M.A. 1988)
      (dicta). See also United States v. McClain, 31 M.J. 130 (C.M.A. 1990).
  3. Probable cause may cure invalid consent. United States v. McClain, 31 M.J. 130
    (C.M.A. 1990). Urinalysis was inadmissible where consent was obtained
    involuntarily even though commander had probable cause to order urinalysis.
    However, the Court stated that probable cause to order urine test may provide an
    alternative basis upon which to admit urine sample obtained through invalid
    consent where:

    1. Commander deals directly with accused in requesting consent, and would
      have authorized seizure of urine based on probable cause but for belief
      that he or she had valid consent; or,
    2. Commander actually orders urinalysis based on probable cause, but
      relaying official asks for consent (which later is found to be invalid).
  4. Requesting consent is not interrogation under Article 31,UCMJ, or the Fifth
    Amendment. United States v. Schroeder, 39 M.J. 471 (C.M.A. 1994). Civilian
    police officer apprehended accused for suspected use of drugs and later asked if
    he would consent to a urinalysis. This question was not custodial interrogation
    under the Fifth Amendment.
  5. Attenuation of taint from prior unwarned admissions. United States v. Murphy,
    39 M.J. 486 (C.M.A. 1994). Accused’s consent to urinalysis test was not tainted
    by prior admissions obtained prior to rights warnings. Prior questioning was not
    coercive and consent was given voluntarily.
  6. Consent. It’s OK to Trick. United States v. Vassar, 52 M.J. 9 (C.A.A.F. 1999).
    NCO told accused he needed to consent to urinalysis because of a head injury.
    Permissible to use trickery to obtain consent as long as it does not amount to
    coercion.

unwarned admissions

Attenuation of taint