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.