Can a military suspect who has consented to the testing of his bodily excreta validly revoke that consent after the government has taken possession of the excreta in question?  The Air Force Court of Criminal Appeals tackled that somewhat messy issue with its recent decision and order in United States v. Dease, Misc. Dkt. No. 2011-04 (AFCCA 29 Sept 2011).

We learn from the opinion that Airman First Class Scott M. Dease, Jr., consented to the search and seizure of his urine for testing.  Five days after the specimen was collected, while it was awaiting shipment to the Air Force Drug Testing Laboratory (AFDTL), A1C Dease revoked his consent to search or perform “any other procedure.”   The Air Force tested his urine specimen anyway and AFDTL reported a positive test for cocaine.  A1C Dease then confessed, presumably (although the opinion doesn’t make this clear) on being confronted with the positive test result.

At trial, the military judge granted the accused’s motion to supress the test results and the confession.  Rejecting the government’s analogy to California v. Greenwood, 486 U.S. 35 (1988), in which the Supreme Court held that a person loses his reasonable expectation of privacy in his rubbbish when it is placed on the curb for collection, the trial judge instead relied on United States v. Pond, 36 M.J. 1050 (recon) (AFCMR 1993), to conclude that an accused “maintains a significant privacy interest in the urine sample.”  The governmment appealed pursuant to Article 62, UCMJ, and the service court reversed.

AFCCA held that once a sample is validly obtained, either by consent, by a warrant, or under exigent circumstances supported by probable cause, the reasonable expectation of privacy no longer exists.  Unlike other property which an accused might reasonably expect to be returned, “urine is by definition a waste product which will ultimately be destroyed and in which no continuing reasonable expectation of privacy exists.”  Human experience, the court wrote, is to abandon such excreta, not to preserve it.  The accused thus abandoned his expectation of privacy in his urine specimen when he delivered it to the government for testing.  A1C Dease had no Fourth Amendment protection to be reclaimed by revoking his consent.

NOTE:  The Dease decision appears to be one of the first participated in by AFCCA reserve Judge Melissa Saragosa.  In civilian life, Judge Saragosa is … well, still Judge Saragosa, presiding in Justice Court in Clark County, Nevada.  A welcome to the bench would be a trifle redundant under the circumstances, but we’ll do it anyway:  welcome aboard!

17 Responses to “AFCCA Clarifies Expectation of Privacy in Urine”

  1. soonergrunt says:

    I’m sure that A1C Dease thought that decision was a real pisser.

  2. Former DC says:

    So, what if instead of consent in giving up urine, a service member revokes consent to search his electronic media before the actual search is conducted? Certainly one has REP in that data. Or, what if the device is imaged without humans looking at the data, and the consent is revoked before humans look at the data? Seems to me in both situations that the revocation of consent is valid until such time has the REP has been intruded into by a human.

  3. Christopher Mathews says:

    FDC, both the trial judge and the CCA looked at that very question. Both concluded that, in the service court’s words, “one might reasonably retain some possessory and privacy interest” in the contents of a computer hard drive. The key distinction for the appellate judges appears to be that while a person might expect to have their data returned to them, urine will ordinarily fall into the “do not want” category.

    SG — I think I could get you a gig in Vegas. Not on the Strip, though.

  4. RY says:

    AFCCA’s analysis is flawed. It conflates two distinct legal principles: consent and abandonment. The CCA treats them the same. It is a firmly rooted principle, however, that consent can be revoked. Something abandoned, by comparison, cannot be un-abandoned. The basis for the urine collection was consent, not abandonment. While normal urination would be abandoned, that which is collected for criminal purposes is not, unless the subject consents with: “Sure you can have it, I don’t want it anyway.” That’s not the case here. This opinion basically nullifies revocation of consent under the hypocritical notion that while the government maintains an interest in the urine, Dease no longer does because it has no value.

    Regrettably, the CCAs haven’t gotten much right when it comes to urinalysis cases in several years. (see all the Blazier-trailer grants and extensive remands). This is a dangerously flawed opinion and I sure hope CAAF corrects it now rather than in the normal course of review.

  5. Cloudesley Shovell says:

    I wouldn’t be surprised to see RY’s one paragraph analysis of the actual legal issue in the case show up at CAAF or back down at the trial court.

    I’ve often wondered how judges would feel if someone stood at the curb pawing through their trash every week on trash day. I think they’d rapidly develop an evolved understanding of the expectation of privacy society is prepared to consider reasonable.

  6. stewie says:

    Absolutely agree with RY. Very succinct and accurate lay-out of the legal situation here.

  7. Christopher Mathews says:

    I think the CCA’s position is that when you voluntarily give something to someone else, you irrevocably surrender your rights in that thing — unless it is something you would reasonably expect to be returned to you. Among the rights you surrender by giving something away are your Fourth Amendment privacy rights in that thing.

    Frankly, I don’t see that as much of a stretch.

  8. stewie says:

    I can’t imagine the dividing line is fluids versus stuff (e.g. urine versus computers).

  9. RY says:

    CM, your phraseology is interesting: once you consent, “you irrevocably surrender”… unless it’s something objectively reasonable to want back. In essence, you start from the abandonment concept and consider revocation as an exception. MRE 314(e)(3) provides consent can be withdrawn at any time, without regard to what is being searched. (BTW, CCA never even cites MRE 314). That is, MRE 314 (derived from case law) treats consent as revocable at the outset and it’s not clear there are any exceptions to the rule. I believe you are blurring consent and abandonment just like the CCA. Abandonment is the irrevocable surrender of something. Consent, by comparison, is the granting of revocable authority to someone else to take something. They are completely separate bases for authority.

  10. NW says:

    This case, the briefs, and the oral argument focused on two questions: 1) What does MRE 314(e)(3)’s language saying consent “may be withdrawn at any time” mean and 2) was the MJ correct in determining there was no inevitable discovery? AFCCA dodged on both questions. AFCCA’s opinion means that when you surrender something to the gov’t, the gov’t can do with it whatever it wants, whenever it wants, for however long it wants and it would all be entirely reasonable. As for bodily fluids, none of us should feel violated when the gov’t takes our blood for routine testing , but then decides once the technology is there down the road to clone our DNA — we should’ve known that would happen, there not being any REP or recourse to protest. We’ll just have to wait and see what CAAF thinks about that.

  11. Christopher Mathews says:

    RY, I think the question is more whether abandonment can be accomplished by consent, and if so, when.

  12. RY says:

    CM, the answer then is clear – No. Abandonment by definition is without regard to purpose. (see Black’s law). Here, the reason for his urination into a sample bottle was for testing, not simply to relieve himself. Abandonment is unrelated to law enforcement purposes. The moment he was asked for consent, abandonment is not in play.

  13. italldepends says:

    I’m liking your analysis, RY. Assuming you are correct, though, from a practical standpoint, at what point is it too late for the consenter to withdraw consent? I hate to interject a practical question into a matter of legal thoery, but there seems to be a policy interest in considering consent to urinalysis tantamount to abandonment. I’m not saying it is an overriding interest, but I can imagine some nightmare fact-intense scenarios. To whom should withdrawal be directed? What if that person, upon receipt of withdrawal, doesn’t have a reasonable opportunity to stop the test before it is complete? And at what point is the test considered complete, anyway? Upon the presumptive positive? GC/MS? What if the test is complete, but the machine has not printed the results . . . ?

  14. stewie says:

    I dont think your questions are any different than if you swapped urine for computer.

  15. Anonymous Air Force Senior Defense Counsel with initials NM says:

    On the issue of abandonment vs consent and how they play into each other (or don’t) the AFCCA ruled similarly in US v Cote. Hopefully, the recurring appearance of these types of issues at the service court level gets some CAAF attention so we can have some resolution on this.

  16. Christopher Mathews says:

    @ stewie:

    … if you swapped urine for computer.

    You don’t want to know what I thought you meant when I first read this.

    I think the CCA would agree that it doesn’t necessarily make a difference what the item is, if in either instance the circumstances are such that the person relinquishing it has no objectively reasonable rights remaining in that item. Ordinarily, that would be the case with urine. Ordinarily it would not with respect to a computer. There could be situations in which the facts would dictate otherwise.

    @ italldepends

    I had this discussion with one of my former military defense counsel colleagues this morning, and we came up with some of the same questions. Doesn’t an accused have the same privacy interests in the results of a test of his urine that he would have in the urine itself? If not, why not?

  17. italldepends says:

    Stewie, you’re right, and the questions wrt electronics are made worse by the cloning forensic computer examiners do right out of the gate. But the difference here is that the law wrt electronics is relatively settled. So with the opportunity to avoid these nasty issues in the context of urine, maybe the court–consciously or not–is conflating the issues, as RY argues.

    CM, it would seem that the privacy interest in the result is the same as it is for content on a PC if the urine is provided for a purpose in which there is a privacy interest, such as health-related testing. But here, where the consent is given explicity for drug testing…that seems different to me.