(dissenting):
I would reverse the decision of the Court of Military Review and order a rehearing. See Tomlin v. Myers, 30 F.3d 1235 (9th Cir.1994) (found inadequate counsel because of failure to move to suppress pretrial and trial identification because no counsel provided at lineup). Appellant’s confession was the *441sole critical piece of evidence in the prosecution’s case; the issue of its admissibility was not “clearly lacking in merit,” and defense counsel’s failure to litigate this question was not explained in strategic terms. Id at 1238, citing United States v. Molina, 934 F.2d 1440, 1447 (9th Cir.1991).
In this case, the confession was obtained only after the OSI told appellant that his command-directed urinalysis tested positive for cocaine. All Air Force defense counsel know or should know about the regulatory prohibition against use of evidence derived from a command-directed urinalysis. See para. 5-8b, Air Force Regulation (AFR) 30-2 (19 Aug 1988) (regulation grounded in the Fourth Amendment). Consequently, a suppression motion should have been made as to this derivative evidence from a command-directed urinalysis (ie., appellant’s confession directly related to the urinalysis is also inadmissible; see Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 2532-33, 101 L.Ed.2d 472 (1988)).
Nevertheless, defense counsel, instead of seeking the obvious suppression motion based on AFR 30-2 and the Fourth Amendment, sought to suppress the confession on an ill-fated motion challenging the lack of corroboration for the confession. Stated another way, defense counsel saw hoof-prints and looked for a rare zebra instead of an obvious horse.
Notwithstanding the good intentions of his defense counsel who focused on the corroboration issue, appellant deserved to have a counsel who would pursue the outcome-determinative motion to suppress based upon the Air Force Regulation. In viewing the law and the facts raised on this appeal, I conclude that appellant has demonstrated a reasonable probability that a suppression motion based on the Air Force Regulation’s prohibition would have been granted. See United States v. Campbell, 41 MJ 177 (CMA 1994). Accordingly, I would hold that Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), would require a rehearing in this case, and I would so order it.