CAAFlog » September 2011 Term » United States v. Dease

The Article 62 appeal in United States v. Dease, No. 12-6001/AF, 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in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time.”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.

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Opinion here.  Chief Jude Baker wrote for the majority.  Judsge Erdmann concurred in the result.  Opinion here.

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.”

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Audio of today’s CAAF arguments in United States v. Dease, No. 12-6001/AF, is here and in United States v. Weeks, No. 11-0526/AF,  is here.

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.

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CAAF granted review of the following issue in United States v. Dease, No. 12-6001/AF (C.A.A.F. Nov. 14, 2011):  “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.”  Dease was an Article 62 appeal to AFCCA.  CAAF issued a stay of the court-martial along with its grant order.  AFCCA’s decision, which held that the accused didn’t retain a reasonable expectation of privacy after he consented to surrendering it to the government, is available here.  Judge Mathews the Greatest discussed that opinion here.

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!