1. militarydefenselawyers330A urinalysis is constitutional if it is part of a valid random inspection. Mil. R. Evid. 313(b); United States v. Gardner, 41 M.J. 189 (C.M.A. 1994). The fact that the results of urinalysis inspections are made available to prosecutors did not make the inspection an unreasonable intrusion. (Note: This ruling has not been
    challenged since the U.S. Supreme Court’s decision in Ferguson v. City of Charleston, 532 U.S. 67 (2001), which found a similar policy unconstitutional).
    See also Skinner v. Railway Labor Executives, 489 U.S. 602 (1989) (urine tests of train operators involved in accidents are reasonable searches) and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (urine testing of employees who apply to carry firearms or be involved in drug interdiction does not require a warrant). Chandler v. Miller, 520 U.S. 305 (1997) (to conduct
    urinalysis without probable cause, must show “special need”).
  2. Authority to order urinalysis inspections. United States v. Evans, 37 M.J. 867
    (A.F.C.M.R. 1993). Commander of active duty squadron to which accused’s
    reserve unit was assigned had authority to order urinalysis inspection. But see
    United States v. DiMuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005) (Commander
    of 162nd FW, a national guard unit, had no authority to order accused to submit
    to urinalysis because accused was at the time in “Title 10” status vice “Title 32”
    status even though accused was still part of 162nd FW); United States v. Miller,
    66 M.J. 306 (C.A.A.F. 2008) (where urinalysis which was the product of an order
    issued by a civilian Air Reserve Technician who did not have command authority
    to issue the order, and thus was not incident to command, was unlawful).
  3. Subterfuge under Mil. R. Evid. 313(b).
    1. Report of Offense. United States v. Shover, 45 M.J. 119 (C.A.A.F.
      1996). Marijuana was planted in an officer’s briefcase. During the
      investigation to find the “planter,” the commander ordered a urinalysis.
      The accused tested positive for methamphetamines. Although the test
      triggered the subterfuge rule of Mil. R. Evid. 313(b), the government met
      its clear and convincing burden. The primary purpose for the inspection
      was to end the finger pointing and hard feelings caused by the
      investigation. The judge ruled the primary purpose was to “resolve the
      questions raised by the incident, not to prosecute someone.” The CAAF
    2. Knowledge of subordinates.
      1. United States v. Taylor, 41 M.J. 168 (C.M.A. 1994). Urinalysis
        test results were properly admitted, even though the urinalysis
        inspection followed reports that accused had used drugs and
        even though accused’s section was volunteered for inspection on
        basis of reports. Commander who ordered inspection was
        ignorant of reports. But see United States v. Willis, No. 96-
        00192, 1997 WL 658748 (N-M. Ct. Crim. App. Feb. 21, 1997)
      2. United States v. Campbell, 41 M.J. 177 (C.M.A. 1994).
        Urinalysis test results were improperly admitted where urinalysis
        inspection was conducted because first sergeant heard rumors of
        drug use in unit and selected accused to be tested based on his
        suspicions. Judge erred in finding that government proved, by
        clear and convincing evidence, that inspection was not
        subterfuge for criminal search.
    3. Primary Purpose. United States v. Brown, 52 M.J. 565 (A. Ct. Crim.
      App. 1999). Several members of unit allegedly were using drugs.
      Because of this, the commander ordered random 30% inspection. The
      commander’s primary purpose was because he “wanted to do a large
      enough sampling to validate or not validate that there were drugs being
      used in his company, and he additionally was very concerned about the
      welfare, morale, and safety of the unit caused by drugs.” This met the
      primary purpose test of Mil. R. Evid. 313(b).
  4. Targeting Soldiers for inspection. United States v. Moore, 41 M.J. 812 (N-M. Ct.
    Crim. App. 1995).Military judge improperly excluded urinalysis results where
    accused was placed in nondeployable “legal” platoon after an Article 15, and
    regimental commander inspected accused’s platoon more frequently than others.
    Commander did not target. More frequent tests were based on disciplinary

Knowledge of subordinates

Targeting Soldiers for inspection