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!