U.S. v. Stevenson, 66 M.J. 15

First Principles: Constitutional Matters: Search and Seizure

1. 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
2. while the degree of an intrusion may inform whether an objectively reasonable expectation of privacy exists, the Supreme Court has not adopted a de minimis exception to the Fourth Amendment’s warrant requirement; to the contrary, the Supreme Court has held that the need for a warrant is not relieved by the use of advanced search methods that are imperceptible to the subject of the search; thus, to the extent that US v. Fitten , 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF 2000), stand for the proposition that there is a de minimis exception to the Fourth Amendment or to MRE 312, they are overruled
3. in this case, the Fourth Amendment problem was that the second vial of blood taken from appellant and provided to law enforcement authorities represented a distinct search and seizure from that undertaken incident to appellant’s treatment for diabetes with respect to the first vial of blood; whatever might be said of appellant’s expectation of privacy with regard to the blood draw itself, a search for DNA from the second vial of blood was not incident to his treatment for diabetes under MRE 312(f) and was not otherwise authorized by warrant or warrant exception

Core Criminal Law Subjects: Evidence: Search and Seizure › Bodily views and intrusions

1. ordinarily, a person has a reasonable expectation of privacy in his blood
2. 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
3. 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, where the search is necessary to save someone’s life and the evidence is in plain view, and where the government demonstrates special needs, beyond the normal need for law enforcement; in addition, MRE 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
4. MRE 312(f) permits the admission of evidence found or seized during the regular course of medical treatment, that is, incidental to medical treatment; however, 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; therefore, the rule does not serve to permit additional searches and seizures that are not incident to treatment; whether such additional searches are admissible is a question of Fourth Amendment analysis
5. there is no indication that either Congress, through delegated authority to the President under Article 36, UCMJ, or the President, through promulgation of MRE 312, intended to abolish servicemembers’ expectation of privacy in blood drawn in furtherance of military preparedness
6. in this case, where appellant had one vial of blood drawn by medical personnel for the purpose of treatment and a second, additional vial drawn at the request law enforcement authorities so that they might have the blood tested to identify appellant’s DNA, because the second vial was not drawn incidental to medical treatment, MRE 312(f) was not applicable to it and did not otherwise obviate appellant’s reasonable expectation of privacy
7. while the degree of an intrusion may inform whether an objectively reasonable expectation of privacy exists, the Supreme Court has not adopted a de minimis exception to the Fourth Amendment’s warrant requirement; to the contrary, the Supreme Court has held that the need for a warrant is not relieved by the use of advanced search methods that are imperceptible to the subject of the search; thus, to the extent that US v. Fitten , 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF 2000), stand for the proposition that there is a de minimis exception to the Fourth Amendment or to MRE 312, they are overruled
8. in this case, the Fourth Amendment problem was that the second vial of blood taken from appellant and provided to law enforcement authorities represented a distinct search and seizure from that undertaken incident to appellant’s treatment for diabetes with respect to the first vial of blood; whatever might be said of appellant’s expectation of privacy with regard to the blood draw itself, a search for DNA from the second vial of blood was not incident to his treatment for diabetes under MRE 312(f) and was not otherwise authorized by warrant or warrant exception

Core Criminal Law Subjects: Evidence: Search and Seizure › Expectations of privacy

1. ordinarily, a person has a reasonable expectation of privacy in his blood
2. 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
3. there is no indication that either Congress, through delegated authority to the President under Article 36, UCMJ, or the President, through promulgation of MRE 312, intended to abolish servicemembers’ expectation of privacy in blood drawn in furtherance of military preparedness
4. in this case, where appellant had one vial of blood drawn by medical personnel for the purpose of treatment and a second, additional vial drawn at the request law enforcement authorities so that they might have the blood tested to identify appellant’s DNA, because the second vial was not drawn incidental to medical treatment, MRE 312(f) was not applicable to it and did not otherwise obviate appellant’s reasonable expectation of privacy
5. while the degree of an intrusion may inform whether an objectively reasonable expectation of privacy exists, the Supreme Court has not adopted a de minimis exception to the Fourth Amendment’s warrant requirement; to the contrary, the Supreme Court has held that the need for a warrant is not relieved by the use of advanced search methods that are imperceptible to the subject of the search; thus, to the extent that US v. Fitten , 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF 2000), stand for the proposition that there is a de minimis exception to the Fourth Amendment or to MRE 312, they are overruled

Core Criminal Law Subjects: Evidence: Search and Seizure › Warrants

1. 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, where the search is necessary to save someone’s life and the evidence is in plain view, and where the government demonstrates special needs, beyond the normal need for law enforcement; in addition, MRE 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
2. while the degree of an intrusion may inform whether an objectively reasonable expectation of privacy exists, the Supreme Court has not adopted a de minimis exception to the Fourth Amendment’s warrant requirement; to the contrary, the Supreme Court has held that the need for a warrant is not relieved by the use of advanced search methods that are imperceptible to the subject of the search; thus, to the extent that US v. Fitten , 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF 2000), stand for the proposition that there is a de minimis exception to the Fourth Amendment or to MRE 312, they are overruled
3. in this case, the Fourth Amendment problem was that the second vial of blood taken from appellant and provided to law enforcement authorities represented a distinct search and seizure from that undertaken incident to appellant’s treatment for diabetes with respect to the first vial of blood; whatever might be said of appellant’s expectation of privacy with regard to the blood draw itself, a search for DNA from the second vial of blood was not incident to his treatment for diabetes under MRE 312(f) and was not otherwise authorized by warrant or warrant exception

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews the denial of a motion to suppress for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo