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 

2

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

3

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

4

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

5

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

6

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

7

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

8

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. 
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 

2

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

3

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

4

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

5

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

6

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

7

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

8

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).