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in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time.”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.
(1) Abandonment and Consent
The opinion begins with discussion of the trial judge’s conclusion that the appellant maintained a privacy interest in his urine after he consented to its seizure by government agents. The AFCCA reversed the trial judge on this decision, equating the appellant’s consent to the seizure to an abandonment of his excrement, and finding that he had no continuing reasonable expectation of privacy in the sample and therefore no Fourth Amendment basis on which to revoke his consent to its analysis. United States v. Dease, Misc. Dkt. No. 2011-04 (AFCCA 29 Sept 2011). CAAF’s analysis begins with the single point of internal contention – the only language Judge Erdmann doesn’t join – that “the underlying question … concerns the application of M.R.E. 314(e)(3).” Slip op. at 9.
M.R.E. 314(e)(3) states that consent may be withdrawn at any time, which the court takes to mean any time before the search is actually conducted. Since the seizure (taking the sample) and the search (analyzing the sample) are separate events in this case, consent could be withdrawn. The court then separately considers whether the appellant abandoned his urine, finding that the CCA erred in this determination because (1) the appellant did not leave his urine in public, but rather delivered it to government agents who he expected would handle it properly, and (2) because urine (like other bodily fluids, and digital media) has no evidentiary value until forensically examined, the examination involves a separate and distinct privacy interest.
The court concludes its analysis by noting that abandonment and consent are distinct legal principles; because the appellant consented and didn’t abandon, he could revoke that consent. This sounds familiar.
The majority ties this analysis together with M.R.E. 314(e)(3), finding that the rule, “by codifying a right to revoke consent, when viewed in light of the separate privacy interests laid out by the United States Supreme Court in Skinner, implies a continued privacy interest maintained by Appellant in the untested urine sample.” Slip op. at 12.
(2) Inevitable Discovery
Having found that the AFCCA erred in its analysis of the abandonment issue, CAAF then turns to the issues that the CCA did not review. The first is inevitable discovery, as the trial judge found that the government could not show that the analysis of the appellant’s urine was inevitable. The court finds that the trial judge’s “finding of fact that there was no probable cause, nor any parallel investigation that would lead to discovery of the evidence, is not clearly erroneous,” and that he “did not abuse his discretion in concluding that the Government had not met its burden of showing probable cause.” Slip op. at 15.
3) Derivative Evidence
Finally, the court reviews the trial judge’s ruling excluding all derivative evidence, including the appellant’s confession and the results of a consensual search of his dormitory room, based on insufficient attenuation from the unlawful analysis of the appellant’s urine. CAAF applies the three-factor analysis from United States v. Conklin, 63 M.J. 333, 338 (C.A.A.F., 2006), considering in the aggregate: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the original unlawful conduct. The court concludes that “the military judge applied the correct law in addressing derivative evidence,” and “the military judge did not abuse his discretion in excluding [the evidence] as derivative of the Government’s earlier search of Appellant’s urine.” Slip op. at 19.
CAAF’s analysis underscores the deferential standard of review in this case, which was explained by Judge Ryan during the oral argument: “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). The CCA’s opinion included the type of dramatically different analysis required to reverse a trial judge under these circumstances. Once CAAF starts down a different path, the unanimous result is unsurprising.
The only exception to the unanimity of the decision is Judge Erdmann’s concurring opinion, in which he “view[s] the underlying question, and the question on which the military judge and the lower court split, as whether Dease retained a reasonable expectation of privacy in his urine sample after voluntarily providing the sample for chemical analysis.” Diss. op. at 1.
I view this as a straightforward case: First, did Dease retain a reasonable expectation of privacy in his urine sample that he voluntarily provided to the Government for chemical analysis (i.e., do Fourth Amendment protections apply)? Because there is no legally significant difference between the search and seizure of blood and the search and seizure of urine, the holding in Skinner says yes. Second, did the military judge abuse his discretion in determining that Dease could and did revoke his consent to search his urine pursuant to M.R.E. 314(e)(3)? The answer is no. Finally, did the military judge err in determining that the urinalysis results and all derivative evidence were inadmissible? The answer to that question is no as well.
Diss. op. at 3. There are practical lessons in this case. For government investigators relying on the consent of the suspect, time is of the essence. For the defense, the window to withdraw consent is now clearly enlarged in cases involving bodily fluids, and possibly other types of evidence (i.e., digital media). But there are also questions left unanswered. For instance, as discussed during the oral argument, since there is a continuing privacy interest after the seizure, is the consent to search limited to the specific rational given at the time of the seizure, or can the government analyze (search) for any purpose? Also, does the rationale of Dease extend only to bodily fluids, or does it apply to any evidence involving subsequent forensic analysis (digital media, fingerprints, DNA, etc…). Perhaps CAAF will have an opportunity to consider these issues soon.
• 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
• CAAF opinion
• Blog post: Opinion analysis