Here is a link to United States v. Murray, an Article 62 appeal.

This case is before us on a Government interlocutory appeal, pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862. Master-at-Arms Second Class (MA2) Sean Murray was charged, inter alia, with aggravated sexual assault of JH and wrongful sexual contact with JH in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. Prior to trial, the military judge granted a motion to suppress, in its entirety, the results of the Sexual Assault Nurse Examination (SANE) conducted on the appellee after JH reported the alleged offenses. The Government contends the military judge erred as a matter of law and fact in granting the defense motion to suppress. . . . . [W]e conclude that the military judge did not abuse his discretion in concluding that the SANE examination was not properly admissible as a search incident to lawful apprehension (SILA), and in granting the defense motion to suppress.

10 Responses to “Search incident-not”

  1. SgtDad says:

    Defense counsel will like footnote 2.  And the court needs to learn the correct plural for “Master-at-Arms.”

    And then there’s the nonsense of sticking with Courier as a mandated font. 

  2. Dwight Sullivan says:

    Since this was an Article 62 appeal — and thus the United States was the appellant and Murray was the appellee — it appears that the opinion has the counsel reversed.

  3. SgtDad says:

    So, the court is complimenting the Gov’t counsel? OK, fair is fair & a good brief by the Gov’t is as deserving of comment as one by the the other side.   In nigh on 35 years as a lawyer, however, I have never seen this before.  Is there some other agenda here?

  4. Phil Cave says:

    SgtDad, It is not ucommon for such a footnote.  And as does CAAF from time to time it is not uncommon for NMCCA panels to compliment counsel at oral argument.  I did take the FN to apply to both the government and defense appellate counsel, and perhaps the TDC. 

  5. N says:

    The footnote reads “We commend appellate defense counsel for an exceptionally thorough, thoughtful, and well-written brief.”

  6. SgtDad says:

    Thanks for the clarification.  Way out here in the West, you don’t see much of that.

  7. Cloudesley Shovell says:

    Another recent and interesting 4th Amendment case, involving how a person’s DNA ends up in a state database, US v. Davis, decided by the 4th Circuit a couple days ago.  Discussed at Volokh here:
    http://www.volokh.com/2012/08/22/dna-extraction-plain-view-and-the-scope-of-the-exclusionary-rule-the-fourth-circuits-decision-in-united-states-v-davis/

  8. stewie says:

    Why not just get a warrant? It doesnt take that long. Relying on consent searches is always a dicey proposition as this case shows. Just get a warrant.

  9. Cloudesley Shovell says:

    Stewie, that’s the central question.  The answer is easy.  So many holes have been shot through the 4th amendment that evidence obtained following a warrantless search is almost always admitted.  Law enforcement, prosecutors, and courts have gotten so used to this reality that rather than seek a warrant in every single case except in those rare instances where an exception applies, the rule now is to just search and grab the evidence, then go looking for an exception.  The “evidence first exception later” route is easier at first, but far more difficult later.  The warrant first route is a little harder first, but pays such dividends later I’m flummoxed as to why warrants continue to be a last resort.

  10. k fischer says:

    Glad to see that the SANE only pulled one pubic hair that won’t be tested instead of 20 that won’t be tested.