Q. My commander ordered a sweep urinalysis, and I'm pretty sure my sample will come back hot. At what point would an inspection like this become illegal?
A. Unit-wide urinalyses are permissible, but troops should be on the lookout for commanders who order such inspections in hopes of catching a particular individual for unlawful use of a controlled substance in violation of Article 112a of the Uniform Code of Military Justice.
First, let's be clear on the meaning of "inspection." Under Military Rule of Evidence 313, it's "an examination of the whole or part of a unit, organization, 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."
Commanders need probable cause to order a service member suspected of abusing drugs to submit to a urinalysis, but not for an inspection such as a sweep urinalysis. However, "inspections that have been utilized as subterfuge searches have been condemned," the Manual for Courts-Martial states.
Why would a commander resort to deception by trying to pass a probable cause search as an inspection? One reason is that it's not always easy to obtain sufficient evidence or testimony to support a probable cause urinalysis.
Military Rule of Evidence 315 defines "probable cause" as a "reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched." If probable cause cannot be attained, a commander still could order a command-directed urinalysis, but the findings from that test can't be used to prosecute the service member at a court-martial. Instead, the test results could be used against the service member in administrative separation proceedings.
"An inspection is not transformed into a search merely because some discretion is exercised by law officers charged with executing the inspection. ... Such discretionary powers cannot, however, be used to target particular individuals for inspection," stated the U.S. Navy-Marine Corps Court of Military Review in U.S. v. Lavan D. Patterson (1993).
In that case, the court found the purported inspection, which resulted in Patterson, a Navy airman apprentice, providing a urine sample that tested positive, to be invalid. While regulation required commands to subject service members returning from a period of unauthorized absence to a urinalysis, Patterson's command did not consistently carry out this requirement.
The trial judge believed the urinalysis qualified as a valid sweep inspection, but the Court of Military Review disagreed, noting how the command was "literally picking and choosing which returning absentees would provide urine samples."
Service members facing drug charges stemming from the results of a sweep urinalysis should immediately consult with an experienced military law attorney. Depending on the circumstances, an attorney could get the urinalysis results suppressed by showing the inspection actually was a subterfuge search.
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com.
