(dissenting):
I agree with the well-reasoned view of Judge Becker, the dissenting judge at the Court of Criminal Appeals. Unpub. op. at 12-18. In my view, the majority opinion of our Court in this case overrules the decisions of this Court in United States v. White, 27 MJ 264, 266 (1988), and United States v. McClain, 31 MJ 130, 133 (1990). Moreover, it does so without appreciation of the unique military circumstances discussed in those cases and under the rubric of preserving “the long-accepted totality-of-the-circumstances analysis.” 45 MJ at 229. I see no conflict between following those cases and applying a totality-of-the-circumstances test. See Orhorhaghe v. I.N.S., 38 F.3d 488, 501 (9th Cir. 1994) (It is well-established that there can be no effective consent to a search or seizure if that consent follows a law enforcement officer’s assertion of an independent right to engage in such conduct.) Moreover, I cannot disregard the special circumstances encountered in the military environment when applying such a test. See generally Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974) (“different character of the military community and of the military mission requires a different application of those protections”). I dissent from this impromptu jettisoning of our prior precedent.
Moreover, the majority’s reliance on the “refocusing” rationale of the court below and the military judge is not warranted. The appellate court below stated:
Here, the military judge found that MSgt Isley’s attempt to refocus the appellant’s attention on whether or not he would consent, rather than the consequences of not consenting, “removed the implicit threat that the accused would be ordered to give a sample if he did not give his consent and removed the ‘Hobson’s choice’ of either giving consent or being ordered to give the sample.” Taking into account the totality of the circumstances, we do not find that this determination is either clearly erroneous or unsupported by the evidence. The testimony of both MSgt Isley and MSgt Demarini indicate that MSgt Isley simply answered the appellant’s question, without much elaboration. He did not state or imply that the commander had or would direct a urinalysis, or use it as an explicit threat. His manner was not overbearing, loud, or threatening. He did not affirmatively mislead the appellant. Indeed, MSgt Isley attempted the course expressly recommended by the Court of Military Appeals in White by “meaningfully explaining] ... the consequences of his alternative.” 27 MJ at 264.
Unpub. op. at 3. Such a refocusing argument makes no sense here because the implied threat was directed at the very question which the investigator later refocused on. Even under a totality-of-the-circumstances test, an appellate court is not free to ignore reality.
More importantly, the majority’s decision today underestimates the coercive nature of rank structure in the military — especially between junior and senior enlisted personnel. When I read this record, I see a 20-year-old airman, a suspected drug user, whose supervisor (a Master Sergeant), drags him by the *233ear to appear before Ms first sergeant. This first sergeant, who is a non-practicing but still msigma-adorned security policeman, said words to the effect that “if [he] didn’t give the sample of his own free will, we could always have the commander direct him to do so.” Anyone who has served time in the military knows that the atmosphere in the first sergeant’s office at that moment was inherently coercive.
Fmally, the timing of the first sergeant’s threat clearly shows appellant’s will was overborne. Once the going got rough, that is, when appellant showed signs of refusing to consent, the first sergeant introduced the idea of a command-directed urinalysis. Moreover, he did so without providmg appellant an explanation as to the limitations on the use of such a search. Here is what appellant’s supervisor said about the conversation between appellant and the first sergeant:
MJ: Okay, at what pomt was there a comment about the command could order a sample?
A: Well, it was, to the best of my knowledge, in between the time Airman Radvansky had become resistant to consenting on Ms own free will and between the time when he signed the form. He — gosh ... he was resistant to signing the form. Sergeant Isley then mentioned that if he did not give a sample of his own free will that we could always have the commander direct him to do so.
These circumstances, not a per se rule, show a lack of consent m tMs case.