Thursday, February 14, 2008

Clarifying search and seizure standards for bodily fluids

United States v. Stevenson, __ M.J. ___, No. 06-0934/NA (C.A.A.F. Feb. 14, 2008). Judge Baker joined by Judges Erdmann, Stucky, and Ryan. Chief Judge Effron separately concurring in part and in the result.

In this case, a petty office on the Temporary Disability Retired List who was being treated at a VA medical facility became a suspect in a rape case. As part of his diabetes treatment, his blood was regularly drawn by VA personnel. NCIS officials requested that while the VA had the vein open, they go ahead and draw an extra vial for DNA testing purposes. The VA did so without informing Petty Officer Stevenson that it was taking an extra vial or why.

CAAF frames the dispositive issue as "whether Appellant had an objectively reasonable expectation of privacy in his bodily integrity (i.e., DNA), in light of M.R.E. 312(f)." Id., slip op. at 8. Under MRE 312(f), "evidence found or seized in the course of medical treatment, which is to say, that is incidental to medical treatment, is not subject to suppression." Id. But "the rule is not intended to serve as cover and concealment for law enforcement inquiries or as an exception to otherwise applicable Fourth Amendment requirements." Id., slip op. at 9.

CAAF accordingly holds that "M.R.E. 312(f) is not applicable to the second vial of blood drawn at the VA hospital." Id.

But the case isn't over yet. CAAF remanded the case to the Navy-Marine Corps Court for further consideration of whether evidence derived from a search warrant was impermissibly derivative of the VA seizure or was the result of bad faith misstatements and omissions to the authorizing magistrate.


Anonymous said...

Exodus 17:6

Anonymous said...

Three issues: First, the opinion is completely silent on the giant jurisdictional pink elephant in this case.

Second, the original military judge got this right (as did NMCCA on the first interlocutory appeal) back in early 1999, NINE years ago. CAAF's opinion in the interlocutory appeal really confused the search and seizure issues, something for which the Court (almost) expressly apologizes. I think implicit in the Court's recognition of the "clarity" of the outcome of the search and seizure question is the fact that this case should never have gone to trial in the first place, because the critical DNA evidence was obviously obtained in violation of the 4th A.

Third, since there's already a pink elephant in this case (jurisdiction), it will be quite interesting to see how the courts deal with the purple elephant lurking in plain sight. The original MJ not only ruled the DNA evidence inadmissible, he expressly found that the facts did not amount to probable cause to suspect Stevenson. NMCCA affirms on gov't interlocutory appeal. After NMCCA affirms, and grants a writ of mandamus springing Stevenson from confinement, the gov't runs to a federal magistrate in Memphis, TN. They seek a search warrant from this federal magistrate despite the MJ's earlier finding of no PC, expressly and intentionally withhold from the federal magistrate any facts regarding the procedural history of the case, including the previous suppression ruling and the no PC finding, in order to get their warrant. That's the good faith issue that NMCCA will have to confront now. It will be fun to watch.

Will NCIS ever learn that getting a search warrant /authorization should be one of their first goals in a case, rather than a last ditch effort when they've exhausted every 4th A exception?