The Article 62 appeal in United States v. Dease, No. 12-6001/AF, 71 M.J. 116 (C.A.A.F. May 1, 2012) (CAAFlog case page) (link to slip op.), began when the trial military judge suppressed the results of a consensual urinalysis, and all derivative evidence including a verbal confession, after finding that the appellant had revoked his consent after he provided the urine sample but before it was tested. The government appealed, and the AFCCA reversed in an opinion discussed in this post:
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.
Dease then appealed to CAAF, which last week unanimously reversed the CCA and affirmed the trial judge’s order excluding the evidence. The court ruled 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in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time.”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).
Slip op. at 3. Chief Judge Baker wrote for the court, and Judge Erdmann wrote a separate concurring opinion. The court identifies three rulings by the trial judge that it analyzes separately: (1) Abandonment and Consent, (2) Inevitable Discovery, and (3) Derivative Evidence.