In my preview of Tuesday’s oral argument at CAAF in United States v. Dease, Jr., No. 12-6001/AF, I predicted that the oral argument would focus on the law of the granted issue which is:
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.
And indeed it did, as the court seemed intent on identifying a narrow rule to address situations where an individual consents to seizure and analysis of a bodily fluid, but later revokes that consent.
The argument began with the appellant’s counsel discussing the right to withdraw consent at any time under Military Rule of Evidence 314. He also cited CAAF itself for the principle that consent is a waiver of the right to demand that the government agents obtain a warrant to justify the search.
The court immediately wondered where this ends – what happens when the consent is revoked at some non-specific time after the seizure takes place? Must the government then take affirmative steps to stop further analysis? The appellant’s counsel answered this in the affirmative, arguing that once the consent is withdrawn the government must stop testing, but he conceded that testing that occurred before consent was withdrawn would be admissible at trial. In the words of Judge Stucky (at 3:25 of the argument audio): “the cat’s out of the bag once it’s tested.”
The argument then turned to analysis of inevitable discovery in this case, embarking on a fact-intensive discussion that I considered possible in my preview, but is based on a level of factual detail not available from the briefs alone. The appellant’s counsel argued that discovery was not inevitable because, under the circumstances, the government would not have pursued investigation of the appellant.
But, returning to the law, the argument turned to the application of the Fourth Amendment’s prohibition of unreasonable search and seizure. Appellant’s counsel argued that in this case the appellant has a Fourth Amendment interest in both the extraction of the bodily fluid and in the subsequent chemical analysis. But then what? Judge Ryan asked if the argument is that the appellant had the right to get the sample back (once he withdrew consent), or if he just had the right to withdraw consent to the search, and the appellant’s counsel said that he only had the right to withdraw the consent to the search, resulting in a “freeze.”
The argument also addressed the nature of the consent, with the appellant’s counsel arguing that the consent extended only to analysis for drug metabolites, and excluded further analysis (for illnesses or viruses, for example).
The government’s counsel began his argument with an assertion that, once the urine was released to the government, the appellant’s privacy interest in the urine was gone. This brought immediate scrutiny from Judge Stucky who asked about the application of withdrawal of consent under M.R.E. 314. The government’s counsel replied that once the evidence is in the possession of the government, the process cannot be stopped. However, in response to questioning from Chief Judge Baker, the government agreed with the appellant that the scope of the testing is limited to the scope of the consent (which may be determined from the rationale on the consent form). Chief Judge Baker didn’t seem particularly happy with this, expressing concern about the next case where the issue will be that the government exceeded the scope of so narrow a reading of the nature of the consent.
Judge Ryan then asked why anything after the revocation of consent is admissible. The government’s counsel responded by analogizing the urine to data copied from a computer, which the government may then keep and test regardless of any revocation of consent (or return of the computer). This led to a question of when the expectation of privacy in urine/bodily fluids ends, with the government arguing that the privacy interests are pierced at the time the urine is given (the interests being defined by the government as (1) the privacy of the release process and (2) the information revealed by the chemical analysis).
But, Judge Ryan nicely summarized the appellant’s position, stating (at at 25:45): “this isn’t a case where there was a warrant, this isn’t a case where there was any other exception to the Fourth Amendment, it’s a case where an additional gloss upon the Fourth Amendment has been imposed by the Military Rules of Evidence.” The government’s counsel agreed (somewhat reluctantly).
But, the government returned to the argument that the time to revoke consent was before the urine was released “and all expectations of privacy had been given up.” Whether this is true – that the expectation of privacy ends after production of the sample – is really the heart of the dispute and (Spilman’s view) is where CAAF’s rulemaking will occur.
The argument then turned to the fact-specific question of inevitable discovery, with the government’s counsel arguing that even without the appellant’s consent, the discovery of the metabolite in the appelant’s urine was inevitable.
Ultimately, the government’s counsel defined his argument as that post-seizure analysis (of urine, physical evidence, etc.) is not covered by the Fourth Amendment. Senior Judge Cox opined that this is “a much cleaner test.” (audio at 36:45).
Also, for those looking out for the standard of review, Judge Ryan defined the standard of review of the trial military judge’s conclusions of law (on the matter of inevitable discovery) as: “for abuse of discretion it’s not that we de novo look at his conclusions of law, it’s did he apply the correct law and are his facts correct, and then [just] the fact that he might come to a different conclusion of law than we would isn’t an abuse of discretion … so what law did he incorrectly state or incorrectly apply in drawing his legal conclusion…” (audio at 39:00).
In rebuttal, the appellant’s counsel noted that M.R.E. 314 does not distinguish between items in the custody of the government and not. Additionally, he argued that M.R.E. 314 creates a heightened standard for consent, beyond that of the Fourth Amendment alone.
• 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
• Oral argument audio
• Blog post: Argument Recap