On Tuesday, January 10, CAAF will hear oral argument in the Article 62 appeal in the case of United States v. Dease, Jr., No. 12-6001/AF. The government’s appeal was based on the trial military judge’s ruling excluding the results of urinalysis showing a positive result for cocaine. That ruling is summarized in the AFCCA’s opinion, which we analyzed when it was released (links below):

The appellee consented to the search and seizure of his urine for testing on 15 June 2010. He provided a urine specimen pursuant to that consent on 16 June 2010, and the specimen was stored in the base hospital laboratory until it was shipped to the Air Force Drug Testing Laboratory (AFDTL) on 27 July 2010. On 21 June 2010, before AFDTL tested the specimen, the appellee revoked “any prior consent for search, samples or any other procedure.” AFDTL reported that the specimen tested positive for cocaine on 25 August 2010.
United States v. Dease, Jr., Misc. Dkt. No. 2011-04, slip op. at 1 (A. F. Ct. Crim. App., September 29, 2011).

The AFCCA reversed the trial military judge, ruling that: “Like delivering garbage to the curb, the appellee [Dease] voluntarily abandoned any reasonable expectation of privacy in his waste urine when he delivered it to the government for analysis.” Id. at 4. Airman First Class Dease then petitioned CAAF for review, which was granted on the following issue:

Whether the Air Force Court of Criminal Appeals erred by finding Appellant had abandoned his urine and thus 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.

In the supplement to the petition for review at CAAF, we learn the unusual facts of the case, which occurred in the vicinity of RAF Lakenheath in Suffolk, England. The appellant (Dease) was working as a confidential source in an Air Force Office of Special Investigations (AFOSI) undercover operation targeting a British national suspected of distributing narcotics.

On June 15, 2010, the appellant was apprehended in a vehicle with a civilian, after the civilian was observed by surveillance cameras apparently purchasing narcotics. A search of the vehicle revealed no incriminating evidence, and the appellant subsequently identified himself as an AFOSI operative, claimed that his presence in the vehicle was in connection with the operation, and consented to searches of his vehicle, quarters, and urine. The appellant also stated that the civilian had purchased crack cocaine and smoked it while the appellant drove the vehicle. The appellant denied smoking the crack, and the searches of the vehicle and quarters revealed no incriminating evidence.

On June 21, 2010 (6 days after the incident), the appellant signed a (apparently boilerplate) notification of representation memorandum with military defense counsel that included language revoking any consent for any searches. Copies of the memorandum were sent to AFOSI, the chief of military justice, and other parties. However, the urine sample provided on June 15 was tested and was positive for a metabolite cocaine. The appellant initially claimed that this was due to his mere presence in the vehicle on June 15, but eventually admitted that he had smoked cocaine that night.

In the supplement to the petition for review at CAAF, appellant argues that the AFCCA “conflates two distinct legal principles: consent and abandonment.” Supp. to Pet. at 9. Invoking a plain language reading of M.R.E. 314(e)(3), the appellant argues that testing is clearly prohibited any time after consent is withdrawn, and that consent for seizure is distinct to abandonment. The appellant also argues that the AFCCA’s reasoning, if taken to the extreme, means that the government could hold a urine sample given for some other purpose, such as medical tests, and use it to any end, such as cloning the person’s DNA.

The appellant also urges CAAF to decide the additional question of inevitable discovery, and argues that there was no probable cause for a search, nor had investigators planned to conduct a search if the appellant refused consent.

The government’s reply argues that the collection and the analysis of the urine were a single search for Fourth Amendment purposes, and that the search occurred at the time of collection and before the appellant withdrew his consent. “The United States believes there was no second search, whereas the [AFCCA] held there was no expectation of privacy when the second search occurred.” Reply to Supp. to Pet. at 12. The reply continues:

Appellant voluntarily relinquished his urine when he consented to provide a urine sample for testing. Appellant had an absolute right to revoke his consent up until the time that he provided his urine sample to the government; consent for search is never complete up until the point of seizure. The removal of the bodily fluid constituted the search of Appellant’s “person.” The urine is the object found in the search not the area or container being searched. Just as in the case of a computer, once the hard drive is copied the subsequent analysis of the data removed onto the copy does not constitute a second search. The further analysis is of the data already properly seized does not constitute an additional search each time the evidence is looked at, considered, or reanalyzed. The extraction of the data from the computer onto the mirror image ends the Fourth Amendment analysis just as the collection of the urine ends the Fourth Amendment analysis in this case. This is in complete accord with the line of cases holding that the subsequent analysis of blood had no independent Fourth Amendment significance.
Id. at 13-14 (internal citations omitted).

The government also argues, in a footnote, that the appellant failed to provide clear notice of his withdrawal of consent, because “the non-specific form letter presented would lead a reasonable individual to believe that the form letter merely served to notify individuals that Appellant was represented…” Id. at 15, note 1.

On the issue of inevitable discovery, the government argues that the facts of the case overwhelmingly support a legal determination of probably cause.

The standard of review on an Article 62 appeal is whether the trial military judge abused his discretion; questions of law are reviewed de novo and findings of fact are reviewed under the clearly-erroneous standard (the AFCCA’s well-stated rule is: “On questions of fact, we ask whether the decision is reasonable; on questions of law we ask whether the decision is correct.” Dease, Jr., slip op. at 1 (emphasis in original)). Accordingly, I anticipate Tuesday’s oral argument to focus on the law of the granted issue, unless the record is explicit on the facts surrounding the issue of the inevitability of the discovery.

Case Links:
AFCCA opinion
Blog post: AFCCA Clarifies Expectation of Privacy in Urine
Blog post: Significant search and seizure CAAF grant
Appellant’s Supplement to Petition for Review
Appellee’s (government) Reply
Blog post: Argument Preview

6 Responses to “Argument Preview: United States v. Dease, Jr., No. 12-6001/AF”

  1. stewie says:

    Not sure I see how agreeing to have your urine seized and tested is abandonment, but agreeing to have say your gun seized and tested isn’t? Or your clothing seized and tested for DNA?
     

  2. Christopher Mathews says:

    The government’s argument at CAAF is at least superficially appealing, but I don’t think it helps.  Even if there’s only one search, the rule contemplates that consent may be withdrawn any time before the search is complete — at which point, the government can do only those things it could do if there was no consent.  If there’s a reasonable expectatation of privacy in the urine sample, the government can’t rely on the withdrawn consent to continue the search by subjecting it to chemical testing.

    @ stewie, the CCA distinguished between items which ordinarily a person would want and expect to be returned to him and those which he would neither want nor expect to get back.  Guns, clothing, computer gear, and the like would generally fall into the first category, and so the person would retain some reasonable expectation of privacy in them.  Urine and other waste products are not as a rule returned to the person who produced them, nor would he ordinarily want them to be, and so they fall in the second category for which the service court found no objectively-reasonable expectation of privacy.

  3. stewie says:

    So then there would be no illegal search if we just installed drug testers in government housing (those that still exist).

  4. Christopher Mathews says:

    @ stewie — that would probably not be acceptable — see United States v. Pond, 36 M.J. 1050 (recon) (A.F.C.M.R. 1993).  This was the case relied on by the military judge in suppressing the u/a results during the initial trial proceedings. 

    The CCA disinguished that case, relying on the fact that the accused voluntarily surrendered his urine knowing it would be tested.  Granting the government’s Article 62 appeal, the service court determined that the operative question was whether having surrendered a sample of his urine voluntarily, the accused still had a protected interest that permitted him to prevent the testing of that sample by withdrawing his consent.  The CCA concluded he did not.

  5. stewie says:

    So it’s abandoned if you voluntarily surrender it, but it’s not abandoned if you simply flush the toilet?
    That seems to stretch common sense and logic.

  6. Mike "No Man" Navarre says:

    @ stewie – why is it not abandoned if you simly flush the toilet?  Abandoned just hard to retrieve the evidence.  I think TCs should start charging obstruction of justice for each time a servicemember takles a #1 after they have knowingly used a controlled substance.  They are making it more difficult for the governmetn to retireve evidence of their misconduct!