United States v. Dease

UNITED STATES, Appellee
v.
Scott M. DEASE Jr., Airman First Class
U.S. Air Force, Appellant
No. 12-6001
Crim. App. Misc. Dkt. No. 2011-04
United States Court of Appeals for the Armed Forces
Argued January 10, 2012
Decided May 1, 2012
BAKER, C.J., delivered the opinion of the Court, in which STUCKY and
RYAN, JJ., and COX, S.J., joined. ERDMANN, J., filed a separate
opinion concurring in the result.
Counsel
For Appellant: Captain Nathan A. White (argued).
For Appellee: Captain Joseph J. Kubler (argued); Colonel Don M.
Christensen, Lieutenant Colonel Linell A. Letendre, and Gerald
R. Bruce, Esq.
Military Judge: Jefferson B. Brown
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Dease, No. 12-6001/AF
Chief Judge BAKER delivered the opinion of the Court.
Appellant brings this interlocutory appeal from a United
States Air Force Court of Criminal Appeals (CCA) ruling in favor
of the Government concerning the admissibility of evidence in a
urinalysis case. Appellant consented to a urinalysis, but
withdrew his consent to search six days later, when the urine
sample was in Government custody but had not yet been tested.
Approximately one month later, Appellant’s urine sample was sent
to the Brooks City-Base laboratory where it tested positive for
cocaine use. At trial, the military judge excluded all evidence
from Appellant’s urinalysis as an unlawful search under the
Fourth Amendment, Appellant having withdrawn his consent
pursuant to Military Rule of Evidence (M.R.E.) 314(e)(3). The
military judge further ruled that all of the evidence derived
from Appellant’s subsequent statement and the search of his room
was also excluded.
The Government appealed under Article 62, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 862 (2006), and the CCA
held that the original consent to the urinalysis was tantamount
to abandonment, and that the subsequent search of the urine
sample was therefore reasonable. United States v. Dease, Misc.
Dkt. No. 2011-04, 2011 CCA LEXIS 317, at *10 (A.F. Ct. Crim.
App. Sept. 29, 2011). The military judge’s ruling concerning
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the admissibility of the evidence resulting from the urinalysis
and subsequent investigation was reversed, and the case was
remanded to the military judge for trial. Appellant petitioned
this Court, and we granted review on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
BY FINDING APPELLANT HAD ABANDONED HIS URINE AND HAD
NO REASONABLE EXPECTATION OF PRIVACY WHERE APPELLANT
CONSENTED TO THE SEIZURE OF HIS URINE AND THEN REVOKED
CONSENT PRIOR TO THE SEARCH OF APPELLANT’S URINE.
For the reasons set forth below, we hold that the military
judge did not abuse his discretion in ruling that Appellant had
a privacy interest in his urine sample and could withdraw
consent prior to the search. Further, the military judge did
not abuse his discretion in concluding that the urinalysis
evidence and evidence derived from that urinalysis would not
have been subject to inevitable discovery. Seizure and search
are not necessarily coterminous, particularly in the context of
a urinalysis case. M.R.E. 314(e)(3) states that “[c]onsent may
be limited in any way by the person granting consent, including
limitations in terms of time, place, or property and may be
withdrawn at any time.” (Emphasis added.) Therefore, the lower
court erred in determining that Appellant’s privacy interest in
his urinalysis sample was extinguished by his voluntary
surrender of his urine to the Government, without addressing
M.R.E. 314(e)(3).
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United States v. Dease, No. 12-6001/AF
Accordingly, we reverse the decision of the CCA, and affirm
the ruling of the military judge.
BACKGROUND1
Appellant, an E-3 in the Air Force Security Forces, was
recruited by the Air Force Office of Special Investigations
(OSI) as a confidential source (CS) on May 21, 2010. The
military judge found that Appellant “was a ‘clean’ CS with no
known criminal activity.” “Because [Appellant] was ‘clean,’ had
a security forces background, and had a pre-existing
relationship with [the] TARGET” of an ongoing investigation of
narcotics trafficking on Royal Air Force (RAF) Lakenheath and
RAF Mildenhall, OSI was eager to use him as a CS against the
target. On several occasions between May 21, 2010, and June 14,
2010, Appellant met with a Special Agent (SA) Slysz from OSI to
discuss his responsibilities as a CS and to test his potential
as an undercover agent. Those responsibilities included, among
other things, a duty to keep SA Slysz informed of his
interactions with the target while serving as a CS.
On June 15, 2010, the target asked Appellant to pick up a
United Kingdom (UK) national by the name of Daniel Clements from
Mildenhall. Appellant did so without informing SA Slysz. That
same day the Suffolk Constabulary contacted the desk at RAF
1
The facts are drawn from the military judge’s detailed findings
of fact, which the CCA did not find clearly erroneous.
4
United States v. Dease, No. 12-6001/AF
Lakenheath, to notify base officials that Appellant’s vehicle
“was observed by a British CCTV system that was set up in a
district known for narcotic activity. An unidentified passenger
in the vehicle was witnessed exiting the vehicle, appeared to
make a drug transaction, and then returned to the vehicle.”
Acting on the information provided by the Suffolk Constabulary,
a “be on the look out” alert was issued and the security forces
stopped Appellant on behalf of the local authorities as he and
his passenger, Mr. Clements, were entering RAF Lakenheath.
Local constables searched Appellant’s vehicle, as well as
Appellant and Clements, but found no evidence of illegal drug
use. The military judge specifically found that:
Constable O’Brien and Constable Meddings searched the
vehicle and both occupants. No evidence of illegal
drug use was discovered during the searches. Neither
constable noticed anything about their demeanor that
suggested to them that [Appellant] or Mr. Clements
were under the influence of narcotics. At some point,
an Air Force military working dog walked around the
vehicle and did not alert for drugs within the
vehicle.
A decorative pipe was found inside the vehicle, but there
was no evidence of its use in the consumption of illegal drugs,
and the pipe was of a type that was available in deployed
locations, and frequently purchased as a souvenir. The
constables on the scene, feeling they did not have enough
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United States v. Dease, No. 12-6001/AF
evidence to charge the British national with a crime, drove him
home and did not pursue further investigation.
Following the search of the vehicle and the release of
Clements, Master Sergeant (MSgt) Ortega-Llarena questioned
Appellant after first informing him of his Article 31, UCMJ,2
rights, which he waived. Appellant explained that he was
working as a CS for OSI, and that his activity with the British
national, which had included the purchase of narcotics, had been
in furtherance of his duties with OSI. Asked to corroborate
this story, Appellant telephoned his handler, SA Slysz. SA
Slysz was unwilling to confirm that Appellant was a CS, but
nonetheless led MSgt Ortega-Llarena to believe that there was a
law enforcement relationship between the two. Appellant
consented to both a urinalysis and a search of his dormitory
room. The search of his room yielded no evidence of drug use,
and his urine sample was taken and placed in storage, pending
shipment to the Air Force Drug Testing Laboratory at Brooks-City
Base, Texas.
Appellant was subsequently released, and no further
investigation occurred. MSgt Ortega-Llarena, who was in charge
of the investigation, stated at trial that, had the results of
2
10 U.S.C. § 831 (2006).
6
United States v. Dease, No. 12-6001/AF
the urinalysis come back negative for drug use, he would have
closed the investigation.
Six days later, on June 21, 2010, Appellant signed a notice
of representation, stating that he was being represented by
Captain (Capt) Joshua Goins, Area Defense Counsel (ADC), RAF
Lakenheath, UK. This memorandum also stated:
I request that you not interview, interrogate, or
question me and that you not ask me to make any
statements, oral or written, unless and until you have
contacted my attorney and he has given express written
consent thereto. Furthermore, any prior consent for
search, samples or any other procedure is hereby
withdrawn.
Emphasis added.
Capt Goins e-mailed this memorandum to the RAF Lakenheath
Chief of Military Justice, the 48th SFS Commander, the 48th SFS
First Sergeant, MSgt Ortega-Llarena, and the local OSI office.
On July 26, Appellant’s urine sample was shipped to Brooks
laboratory and tested positive for the metabolite for cocaine.
On August 11, 2010, MSgt Ortega-Llarena received notification of
the results, and scheduled an interview with Appellant. At 3:00
p.m. on August 26, 2010, MSgt Ortega-Llarena read Appellant his
Article 31, UCMJ, rights for suspicion of wrongful possession
and use of a controlled substance, and for making a false
official statement. Appellant first stated that he wished to
speak to his counsel before speaking to the investigators.
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United States v. Dease, No. 12-6001/AF
However, after several unsuccessful attempts to contact his
defense counsel, Appellant indicated that he wished to make a
statement. He again denied making an earlier false statement.
He also consented to another urinalysis, as well as a search of
his dormitory room.
That same day, SFOI searched Appellant’s dormitory room,
discovering a packet of “Pulse Ultra,” a Spice3 derivative, as
well as an aluminum can that appeared to have been modified for
use as a smoking device, and which had residue of a green,
organic substance. When confronted with this evidence,
Appellant made a subsequent statement admitting to cocaine use
and Spice possession and use over the course of a year, as well
as confessing to making an earlier false statement.
At trial, Appellant moved for exclusion of all of the
evidence stemming from both his urinalysis and from the
investigation subsequent to SFOI receipt of the results of his
urinalysis, arguing that his revocation of consent made the
urinalysis an illegal search, and that the rest of the evidence
was tainted by this illegal search.
3
“Spice” is a brand name for a synthetic cannabinoid, which has
largely become a generic term to describe any synthetic
cannabis. It is a Schedule I controlled substance under United
States federal law, as of March 1, 2011. Schedules of
Controlled Substances, 70 Fed. Reg. 11,075, 11,077, (Mar. 1,
2011) (codified at 21 C.F.R. pt. 1308.11).
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As noted above, the military judge heard arguments on the
motion, and ruled in Appellant’s favor based on M.R.E. 314. The
Government appealed and the CCA reversed the military judge,
bringing Appellant before this Court under Article 67, UCMJ.4
ANALYSIS
We review a military judge’s evidentiary ruling on a motion
to suppress for an abuse of discretion. United States v. Ayala,
43 M.J. 296, 298 (C.A.A.F. 1995); see also United States v.
Wuterich, 67 M.J. 63, 77 (C.A.A.F. 2008) (applying the abuse of
discretion standard in an Article 62, UCMJ, appeal from an
evidentiary ruling). There are three such rulings at issue in
this case. We consider each in turn.
1. Abandonment and Consent
The first question presented is whether the military judge
abused his discretion in concluding that Appellant retained an
ongoing privacy interest in his urine sample after it was seized
and before it was searched at the Brooks lab and therefore
whether Appellant could assert this privacy interest by
withdrawing his consent to search under M.R.E. 314. The
underlying question, and the question on which the military
judge and the lower court split, concerns the application of
M.R.E. 314(e)(3). Should the rule inform one’s judgment
4
10 U.S.C. § 867 (2006).
9
United States v. Dease, No. 12-6001/AF
regarding Appellant’s reasonable expectation of privacy in a
urine sample that is voluntarily given, and, if so, does this
same rule permit revocation of that consent? The military
judge’s ruling was predicated on the rule; the lower court did
not reference it.
M.R.E. 314(e)(3) states that “Consent may be limited in any
way by the person granting consent, including limitations in
terms of time, place, or property and may be withdrawn at any
time.” In our view, the language is plain. “Consent . . . may
be withdrawn at any time,” provided of course that the search
has not already been conducted. Moreover, as recognized in
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616
(1989), and United States v. Wallace, 66 M.J. 5, 8 (C.A.A.F.
2008), searches and seizures are not necessarily coterminous;
often they are not. In this case, Appellant’s urine was seized
on June 15, 2010, but it was not searched until the end of July.
Therefore the military judge did not abuse his discretion in
concluding that consent to search could be withdrawn on June 21,
2010.
The CCA erred in concluding that “[l]ike delivering garbage
to the curb, the appell[ant] voluntarily abandoned any
reasonable expectation of privacy in his waste urine when he
delivered it to the government for analysis,” basing its
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United States v. Dease, No. 12-6001/AF
analysis on the concept that consent equals abandonment under
California v. Greenwood, 486 U.S. 35, 39-40 (1988). Dease, 2011
CCA LEXIS 317, at *10. The facts in Greenwood differ from the
facts before this Court in two important ways. First, the
defendants in Greenwood left their trash on the side of the
road, “having deposited their garbage ‘in an area particularly
suited for public inspection and, in a manner of speaking,
public consumption, for the express purpose of having strangers
take it.’” 468 U.S. at 40-41 (quoting United States v.
Reicherter, 647 F.2d 397, 399 (3d Cir. 1981)). Conversely, as
the CCA noted, the military judge, in his ruling, held that an
individual consenting to a urinalysis has “a reasonable
expectation that the government will properly secure his sample
and prevent unauthorized access, tampering, or testing of that
sample.” Dease, 2011 CCA LEXIS 317, at *8 (quotation marks
omitted).
Second, while the urine itself may be of negligible
intrinsic value to either Appellant or the Government, Appellant
retains a privacy interest in the sample, due to its nature and
its evidentiary value. Skinner, 489 U.S. at 616. Unlike
contraband, the evidentiary value of which is ascertainable to
the naked eye, the evidentiary value of the urine sample is only
ascertainable after chemical analysis. The United States
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United States v. Dease, No. 12-6001/AF
Supreme Court recognized this aspect of the nature of bodily
fluid samples in Skinner (holding that there are two separate
privacy interests at stake in the procurement and subsequent
testing of bodily fluids). Id. The evidentiary nature of the
urine or blood sample is akin to that of a computer hard drive,
whose evidentiary value is unknown until it is examined by
forensic experts. This Court held in Wallace that, like the
blood samples in Skinner, the seizure and search of a computer
hard drive constitutes two separate and distinct intrusions into
privacy interests. Wallace, 66 M.J. at 8 (citing Skinner, 489
U.S. at 616, and analogizing the computer hard drive to bodily
fluids).
Finally, M.R.E. 314(e)(3), by codifying a right to revoke
consent, when viewed in light of the separate privacy interests
laid out by the United States Supreme Court in Skinner, implies
a continued privacy interest maintained by Appellant in the
untested urine sample.5 As noted by the military judge in his
ruling, the M.R.E., by allowing the withdrawal of consent, is
5
While the Supreme Court has not specifically ruled on the
question of whether there is a continuation of a Fourth
Amendment privacy interest, most of the federal courts of
appeals have held that consent to search may be revoked if the
person giving consent effectively withdraws the consent prior to
the completion of the search. See, e.g., United States v.
Fuentes, 105 F.3d 487, 489 (9th Cir. 1997); United States v. Ho,
94 F.3d 932, 934 (5th Cir. 1996); United States v. Carter, 985
F.2d 1095, 1097 (D.C. Cir. 1993); Warrantless Searches and
Seizures, 37 Geo. L. J. Ann. Rev. Crim. Proc. 39, 96 (2008).
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not intended to allow a servicemember to reclaim abandoned
property, but rather to protect a privacy interest.
In this case, abandonment and consent represent two
separate and distinct legal principles. Appellant did not
abandon his urine, only to have it later collected and tested;
he consented to the search of his urine for evidence of drug
use, and later withdrew that consent.
2. Inevitable Discovery
Having found that the military judge did not abuse his
discretion in determining that Appellant withdrew his consent to
search, the next question we must address is whether he abused
his discretion in ruling that the doctrine of inevitable
discovery should not apply. United States v. Kaliski, 37 M.J.
105, 109 (C.M.A. 1993) (citing United States v. Terzado-Madruga,
897 F.2d 1099, 1112 (11th Cir. 1990)). In order to find an
abuse of discretion, we must find that the military judge
committed a clear error in his conclusions. United States v.
Houser, 36 M.J. 392, 397 (C.M.A. 1993).
The doctrine of inevitable discovery is an exception to the
exclusionary rule of the Fourth Amendment. Nix v. Williams, 467
U.S. 431, 444 (1984). M.R.E. 311(b)(2) codifies this doctrine,
stating that “Evidence that was obtained as a result of an
unlawful search or seizure may be used when the evidence would
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United States v. Dease, No. 12-6001/AF
have been obtained even if such unlawful search or seizure had
not been made.”
The military judge concluded that “[t]his was not a
situation where SFOI possessed or were actively pursuing
evidence or leads that would inevitably have led to the
discovery of the evidence.” Next, the military judge concluded
that there was no probable cause to search the urine collected
on June 15, or, in other words, to perform a urinalysis without
Appellant’s consent:
There is nothing to suggest that the probable cause,
if there was any, would extend beyond the vehicle to
A1C Dease’s urine. When one factors in that A1C Dease
had a plausible explanation as to why he was near a
potential drug transaction and use of drug, the
evidence was insufficient to support a probable cause
search of the accused’s urine.
Finally, the military judge concluded that “the government
failed to meet their burden of showing the degree of certainty
required by the law to find that the lawful search of A1C
Dease’s urine would have been inevitable.”
The record indicates that the military judge relied upon
multiple sources of evidence in coming to the conclusion that
there was no probable cause, and, even if there were probable
cause, no independent attempt to pursue an investigation that
would have led to the application to a magistrate for a warrant.
Absent probable cause to suspect the evidence of illegal drug
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United States v. Dease, No. 12-6001/AF
use in Appellant’s urine, there could be no application of the
doctrine of inevitable discovery in this case. Wallace, 66 M.J.
at 10 (citing United States v. Owens, 51 M.J. 204, 210 (C.A.A.F.
1999) (upholding the legality of a warrantless search because of
overwhelming probable cause plus the likelihood that routine
police procedure would have made discovery of the evidence
inevitable)); United States v. Kozak, 12 M.J. 389, 394 (C.M.A.
1982).
[A]fter an accused challenges the legality of a
search, the prosecution must, by a preponderance of
the evidence, establish to the satisfaction of the
military judge that when the illegality occurred, the
government agents possessed, or were actively
pursuing, evidence or leads that would have inevitably
led to the discovery of the evidence and that the
evidence would inevitably have been discovered in a
lawful manner had not the illegality occurred.
Kozak, 12 M.J. at 394.
The military judge’s finding of fact that there was no
probable cause, nor any parallel investigation that would lead
to discovery of the evidence, is not clearly erroneous. At no
point was the Government conducting a parallel investigation.
Further, given Appellant’s role as a “clean” CS, the military
judge did not abuse his discretion in concluding that the
Government had not met its burden of showing probable cause on
the basis of the CCTV video alone, showing Appellant and his
vehicle in an area of known narcotics trafficking accompanied by
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United States v. Dease, No. 12-6001/AF
a stranger who appeared to purchase narcotics. Therefore we
uphold the military judge’s ruling that the evidence obtained
through the analysis of Appellant’s urine must be excluded.
3. Derivative Evidence
Finally, we turn to the military judge’s ruling on
derivative evidence. Having determined that the doctrine of
inevitable discovery did not apply to the urinalysis evidence,
the military judge excluded the evidence stemming from
Appellant’s August 26, 2010, interview and the search of his
dormitory on the same date. Again, we examine the military
judge’s decision for an abuse of discretion. Kaliski, 37 M.J.
at 109. Appellant consented to the search of his dormitory room
and willingly gave a statement on August 26, 2010, after MSgt
Ortega-Llarena informed him of the results of his urinalysis.
However, the military judge determined that Appellant’s consent
on August 26, 2010, was not sufficiently attenuated from the
prior unlawful search of Appellant’s urine. Specifically, the
military judge concluded “that the 26 August 2010 confession and
the results of the 26 August 2010 search of [Appellant’s]
dormitory room are derivative evidence of the improper search of
the accused’s urine and should be suppressed.”
“[G]ranting of consent to search may sufficiently attenuate
the taint of a prior violation.” United States v. Conklin, 63
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M.J. 333, 338 (C.A.A.F. 2006). The threshold question is
whether consent is voluntary, without influence of the prior
unlawful search. This question is examined in light of this
Court’s ruling in Conklin, and the United States Supreme Court’s
language in Brown v. Illinois, 422 U.S. 590, 604 (1975) (finding
an interval of less than two hours between the illegal arrest
and the later incriminating statement insufficient to attenuate
the taint). In order to sufficiently attenuate the taint of a
prior violation, a court must examine the consent with respect
to three factors: (1) the temporal proximity of the illegal
conduct and the consent; (2) the presence of intervening
circumstances; and (3) the purpose and flagrancy of the original
unlawful conduct. Conklin, 63 M.J. at 338 (citing Brown, 422
U.S. at 603-04). None of these three factors is dispositive of
attenuating the taint of the original wrongdoing, but rather
they are examined in aggregate to determine the effect of an
appellant’s consent. Brown, 422 U.S. at 603-04.
Examining the first factor, the military judge found that
the time between the revocation of consent and subsequent
consent for search was approximately two months. This
significant amount of time contrasts with the facts of Conklin,
in which only less than three hours had elapsed between the
illegal search and the consent of the appellant. Conklin, 63
17
United States v. Dease, No. 12-6001/AF
M.J. at 339. However, the actual illegal conduct -- the testing
of the urine sample -– did not occur until late July.
Additionally, after revoking consent in June, there is no
indication that Appellant knew his urine sample was to be tested
until he was presented with the positive results on August 26,
2010. The fact that the illegal testing of the urine sample and
the August 26, 2010, consent to a second urinalysis and search
of Appellant’s dorm room were separated by a month may tip this
factor in favor of the Government. However, we are mindful of
the fact that Appellant was not confronted with the results of
the illegal conduct -– the first urinalysis -– until mere hours
before giving consent on August 26, 2010, to the subsequent
searches. Therefore, this factor does not weigh heavily in
favor of the Government.
Factors two and three of the attenuation test fall more
clearly on the side of Appellant. As noted by the military
judge, it is uncontroverted that there were no intervening
circumstances of significance to the investigation between the
June 21, 2010, revocation of consent and the events of August
26, 2010. In fact, MSgt Ortega-Llarena stated that, absent the
results of the urinalysis, the Government would not have pursued
this investigation in any way. As there was no further
investigation into the Appellant’s alleged drug use between the
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United States v. Dease, No. 12-6001/AF
submission of the urine sample and the consent, there could have
been no new information that could qualify as an intervening
circumstance. The military judge therefore did not abuse his
discretion in ruling that factor two supports exclusion of the
evidence.
Finally, examining the third factor, while there appears to
be no willful wrongdoing on the part of the investigators, the
military judge held that, once Appellant’s revocation of consent
was sent out via e-mail on June 21, 2010, the Government should
have known that consent had been withdrawn, and negligently
failed to act accordingly. This factor, along with factor two,
favors Appellant.
In this case, the military judge applied the correct law in
addressing derivative evidence. Further, examined in aggregate,
the military judge’s application of the Conklin factors supports
exclusion of the evidence stemming from the events of August 26,
2010. Therefore, the military judge did not abuse his
discretion in excluding Appellant’s statement and the results of
the search of Appellant’s dormitory room, as derivative of the
Government’s earlier search of Appellant’s urine seized on June
15, 2010.
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CONCLUSION
Accordingly, the decision of the United States Air Force
Court of Criminal Appeals is reversed. The case is returned to
the Judge Advocate General of the Air Force for remand to the
military judge for further proceedings.
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ERDMANN, Judge (concurring in the result):
I concur with the majority’s holding that the military
judge correctly determined that Dease revoked his consent to
search his urine pursuant to M.R.E. 314(e)(3), and that the CCA
erred when it concluded that Dease abandoned any reasonable
expectation of privacy in his urine sample when he voluntarily
provided the sample for chemical analysis. I also agree with
the majority’s conclusion that under the circumstances of this
case, the military judge correctly suppressed the results of the
chemical analysis and all derivative evidence and therefore
concur in the majority’s reversal of the CCA’s decision.
I do not agree, however, with the majority’s position that
“[t]he underlying question, and the question on which the
military judge and the lower court split, concerns the
application of M.R.E. 314(e)(3).” United States v. Dease, __
M.J. __ (9) (C.A.A.F. 2012). I view the underlying question,
and the question on which the military judge and the lower court
split, as whether Dease retained a reasonable expectation of
privacy in his urine sample after voluntarily providing the
sample for chemical analysis. Consistent with the Supreme
Court’s holding in Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602 (1989) (there are separate privacy interests in the
seizure and in the subsequent testing of blood), the military
judge correctly concluded that Dease did retain a reasonable
United States v. Dease, No. 12-6001/AF
expectation of privacy in his urine sample. Accordingly, the
military judge determined that pursuant to M.R.E. 314(e)(3)
Dease could and did withdraw his consent to search his urine.1
In contrast, the CCA determined that Dease did not retain a
reasonable expectation of privacy in his urine sample. Although
the CCA did not “bas[e] its analysis on the concept that consent
equals abandonment”;2 citing California v. Greenwood, 486 U.S. 35(1988), the CCA analogized consensually providing a urine sample
for the purpose of chemical analysis with delivering trash to
the curb.3 By abandoning any reasonable expectation of privacy
in his waste urine when he voluntarily provided a urine sample
for chemical analysis, the CCA determined that Dease’s Fourth
Amendment rights were not violated and did not find it necessary
to address M.R.E. 314(e)(3).4
1
Footnote 5 of the majority opinion implies some significance to
what several of the Circuit Courts of Appeals have said on the
issue of consent. In my view, the Circuit Courts of Appeals
decisions concerning revocation of consent do not inform our
analysis of a revocation of consent pursuant to M.R.E.
314(e)(3).
2
Dease, __ M.J. at __ (10-11).
3
United States v. Dease, Misc. Dkt. No. 2011-04, 2011 CCA LEXIS
317, at *10 (A.F. Ct. Crim. App. Sep. 29, 2011).
4
Id.2
United States v. Dease, No. 12-6001/AF
I view this as a straightforward case:5 First, did Dease
retain a reasonable expectation of privacy in his urine sample
that he voluntarily provided to the Government for chemical
analysis (i.e., do Fourth Amendment protections apply)? Because
there is no legally significant difference between the search
and seizure of blood and the search and seizure of urine, the
holding in Skinner says yes. Second, did the military judge
abuse his discretion in determining that Dease could and did
revoke his consent to search his urine pursuant to M.R.E.
314(e)(3)? The answer is no. Finally, did the military judge
err in determining that the urinalysis results and all
derivative evidence were inadmissible? The answer to that
question is no as well. Accordingly, while I concur with the
reversal of the CCA’s decision, I do not join that portion of
the majority’s analysis noted above.
5
I do not agree with the majority that somehow M.R.E. 314(e)(3)
“inform[s] one’s judgment regarding Appellant’s reasonable
expectation of privacy in a urine sample that is voluntarily
given” or that the rule “by codifying a right to revoke consent,
when viewed in light of the separate privacy interests laid out
by the United States Supreme Court in Skinner, implies a
continued privacy interest maintained by Appellant in the
untested urine sample.” Dease, __ M.J. at __ (9-10, 12).
M.R.E. 314(e)(3) does neither.
3