United States v. Stevenson

Decision Date14 February 2008
Docket Number06-0934.
Citation66 M.J. 15
PartiesUNITED STATES, Appellee, v. Walter S. STEVENSON, Hospital Corpsman Third Class, U.S. Navy, Appellant.
CourtUnited States Court of Appeals, Armed Forces Court of Appeals

Argued Oct. 24, 2007.

BAKER , J., delivered the opinion of the Court, in which ERDMANN STUCKY, and RYAN, JJ., joined. EFFRON , C.J., filed a separate opinion concurring in part and in the result.

For Appellant: Lieutenant Commander M. Eric Eversole, JAGC, USN (argued); Lieutenant A.M. Cooper, JAGC USN.

For Appellee: Lieutenant Derek D. Butler, JAGC, USN (argued); Major Brian K. Keller, USMC (on brief) Commander PaulC. LeBlanc, JAGC, USN, and Major Wilbur Lee, USMC.

Amicus Curiae for Appellant: Christopher J. Eckhart (law student) (argued); Joel M. Schumm (supervising attorney) (on brief)-for the Indiana University School of Law, Indianapolis.

Judge BAKER delivered the opinion of the Court.

Appellant was tried by a general court-martial convened with members at Naval Station Great Lakes, Illinois. Contrary to his pleas, he was convicted of rape, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2000) . The court members sentenced him to confinement for three years, and a dishonorable discharge. The sentence was approved by the convening authority, and affirmed by the United States Navy-Marine Corps Court of Criminal Appeals. United States v. Stevenson (Stevenson I ), 52 M.J. 504, 510 (N.M.Ct.Crim.App.1999) . On Appellant's petition we granted review of the following questions:

I. WHETHER NCIS AND VA HOSPITAL PERSONNEL VIOLATED THE FOURTH AMENDMENT BY SEIZING APPELLANT'S BLOOD AND SEARCHING IT FOR DNA EVIDENCE WITHOUT PROBABLE CAUSE OR A SEARCH WARRANT ISSUED ON PROBABLE CAUSE?

II. IF THIS COURT SUPPRESSES THE EVIDENCE FROM THE WARRANTLESS SEARCH AND SEIZURE, SUPRA, DID THE LOWER COURT ERR BY FAILING TO ADDRESS OR SUPPRESS BLOOD AND DNA EVIDENCE GAINED BY A SEARCH WARRANT ISSUED ON TAINTED EVIDENCE AND MATERIAL MISREPRESENTATIONS?

Based on the reasoning below, we hold that the actions of the Naval Criminal Investigative Service (NCIS) and the Department of Veterans' Affairs (VA) violated Appellant's Fourth Amendment right against unreasonable search and seizure, and we remand the second issue to the court below for further factual determination.[1]

I.

This case involves several blood draws. In November 1997, NCIS investigators determined that Appellant was a possible suspect in a November 1992 rape of a military dependent in Hawaii, where Appellant had been stationed. At the time of the investigation, Appellant was assigned to the temporary disability retired list (TDRL), and was being treated for diabetes at the VA hospital in Memphis, Tennessee. As part of his treatment, Appellant routinely had his blood drawn by VA medical personnel for the purpose of treatment. Appellant was aware of the purpose of the draws and consented to them.

During the course of their investigation, NCIS agents learned of the treatment that Appellant was receiving from the VA, including the periodic blood draws. As a result, NCIS requested that VA medical personnel draw an additional vial so that law enforcement authorities might have that blood tested to identify Appellant's DNA. This request was vetted by lawyers at the VA, who concluded that the blood could be drawn for and searched by NCIS. As a result, at Appellant's routine, consensual blood draw on June 3, 1998, the VA staff drew an additional vial without informing Appellant of the purpose for doing so. This sample was sent to the United States Criminal Investigations Laboratory and tested to determine the DNA composition of the blood for law enforcement purposes. It is this blood draw that is implicated by the first assigned issue.

At trial, the military judge excluded from evidence the vial of blood drawn and tested without Appellant's permission. NCIS agents then sought and obtained a warrant from a United States federal magistrate in Tennessee, permitting NCIS agents to obtain an additional vial of Appellant's blood. It is this request and warrant that are at the root of Appellant's second assigned issue.

This is the second time this Court has considered Appellant's case. In United States v. Stevenson (Stevenson II ), 53 M.J. 257 (C.A.A.F.2000) , we held that Military Rule of Evidence (M.R.E.) 312(f) applied to persons on the TDRL, and remanded the case for further proceedings to determine whether, in light of United States v. Fitten, 42 M.J. 179 (C.A.A.F.1995) , “the prolonged intrusion of the needle in [Appellant's] arm while a second vial was placed on the vacuum needle, and then for some additional period while the blood was extracted into the vial, was a de minimis intrusion with respect to the Fourth Amendment and Mil. R. Evid. 312(f)." Stevenson II, 53 M.J. at 260-61 .

On remand the military judge found as a matter of fact and law that: (1) Appellant's blood draw was motivated by medical personnel concerned with Appellant's diabetic condition; (2) the blood draw was not directed by law enforcement officials, but rather was part of his medical treatment by the VA; (3) the blood draw was conducted by medical personnel in a VA hospital environment; (4) the NCIS request for a blood sample had no impact on the initial needle intrusion and did not cause any additional intrusion; (5) the NCIS request for a blood sample resulted in a de minimis impact by prolonging the time the needle was in Appellant's arm only by a few seconds; and (6) the initial blood draw was for a valid medical purpose and necessary to preserve the health of a servicemember. The military judge also found that, since the blood was drawn for a valid medical purpose, M.R.E. 312 did not “limit the purposes to which the seized evidence may be put or used." The United States Navy-Marine Corps Court of Criminal Appeals affirmed the military judge's findings of fact and conclusions of law. United States v. Stevenson (Stevenson III ), 65 M.J. 639, 645 (N.M.Ct.Crim.App.2006) .

We review the denial of a motion to suppress for an abuse of discretion." United States v. Rader , 65 M.J. 30, 32 (C.A.A.F.2007) (citing United States v. Khamsouk, 57 M.J. 282, 286 (C.A.A.F.2002) ). Findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo. United States v. Flores , 64 M.J. 451, 454 (C.A.A.F.2007) (citing Khamsouk, 57 M.J. at 286).

II.

On appeal, Appellant argues that the Government did not possess a special health care need under M.R.E. 312 sufficient to permit the violation of his Fourth Amendment right through the warrantless seizure and search of his blood for DNA testing. To hold otherwise, Appellant argues, would be to eliminate any distinction between the military's interest in the provision of health care, and a general law enforcement interest. The Government responds that the drawing of Appellant's blood at the VA hospital represented a de minimis intrusion justified by the Government's necessary interest in the health of its servicemembers in order to determine their fitness for duty, and therefore did not violate Appellant's Fourth Amendment rights.

The threshold question is whether Appellant had an expectation of privacy in his blood that required the Government to obtain a warrant prior to seizing and searching that blood for law enforcement purposes. Ordinarily, as the Supreme Court has held, a person has a reasonable expectation of privacy in his blood. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) . Furthermore, while military service necessitates a reduced expectation of privacy in bodily fluids with respect to drug testing, servicemembers otherwise generally retain their Fourth Amendment right against unreasonable search and seizure. See Murray v. Haldeman , 16 M.J. 74, 81 (C.M.A.1983) ; Committee for GI Rights v. Callaway, 518 F.2d 466, 476 (D.C.Cir.1975) .

Of course, within the context of bodily fluids, there are a number of exceptions to the warrant requirement as well as circumstances that would negate the need for a warrant. These include situations where there exists both probable cause and the need to prevent the loss of evidence, see Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) , where the search is necessary to save someone's life and the evidence is in plain view, see Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) , and where the government demonstrates ‘special needs, beyond the normal need for law enforcement,’ " see Chandler v. Miller, 520 U.S. 305, 313-14, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) (citation omitted). In addition, M.R.E. 312(f), rather than being an exception to the warrant requirement, authorizes the admission of evidence that was developed incident to a valid medical purpose.

M.R.E. 312(f) states:

Nothing in this rule shall be deemed to interfere with the lawful authority of the armed forces to take whatever action may be necessary to preserve the health of a service-member. Evidence or contraband obtained from an examination or intrusion conducted for a valid medical purpose may be seized and is not evidence obtained from an unlawful search or seizure within the meaning of Mil. R. Evid. 311.

The specific question raised by this case is whether Appellant had an objectively reasonable expectation of privacy in his bodily integrity (i.e., DNA), in light of M.R.E. 312(f). But for this Court's application of Fitten in Stevenson II, the answer would be straightforward.

The Drafters' Analysis of the Military Rules of Evidence states that M.R.E. 312(f) was intended to make “it clear that the Armed Forces retain their power to ensure...

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4 cases
  • United States v. Stevenson
    • United States
    • United States Court of Criminal Appeals, Navy-Marine Corps
    • December 10, 2009
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    • United States
    • U.S. Supreme Court
    • October 6, 2008
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  • Stevenson v. United States
    • United States
    • U.S. Supreme Court
    • October 6, 2008
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  • United States v. Freeman
    • United States
    • United States Court of Criminal Appeals, Navy-Marine Corps
    • April 30, 2014
    ...be seized and is not evidence obtained from an unlawful search or seizure."[10] MIL R. EVID. 312(f); see also United States v. Stevenson, 66 M.J. 15, 18 (C.A.A.F. 2008). Here, the emergency room physician testified that it was "medically necessary" to draw and test the appellant's blood, an......

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