U.S. v. Dease, 71 M.J. 116

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

1. searches and seizures are not necessarily coterminous, particularly in the context of a urinalysis case; often they are not

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

1. MRE 314(e)(3) states that consent to search 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in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time; the language is plain; consent may be withdrawn at any time, provided of course that the search has not already been conducted
2. appellant, who consented to a urinalysis during a drug investigation, had an ongoing privacy interest in his urine sample after it was seized and before it was searched at the drug laboratory; therefore, appellant could assert this privacy interest by withdrawing his consent to search under MRE 314 prior to the sample being tested; accordingly, 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; and, the CCA erred in determining that appellant’s privacy interest in his urine sample was extinguished by his voluntary surrender of his sample to the government; appellant did not abandon his urine, only to have it later collected and tested; he consented to the search of his urine for evidence of drug use, and later withdrew that consent

Core Criminal Law Subjects: Evidence: Search and Seizure › Derivative evidence

1. granting of consent to search may sufficiently attenuate the taint of a prior unlawful search; the threshold question is whether consent is voluntary, without influence of the prior violation; in order to sufficiently attenuate the taint of a prior violation, a court must examine the consent with respect to three factors: (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; none of these three factors is dispositive of attenuating the taint of the original wrongdoing, but rather they are examined in aggregate
2. appellant’s consent to search his dormitory room and his subsequent statement to investigators were not sufficiently attenuated from the illegal testing of his urine sample conducted after he withdrew his consent to a urinalysis to make the evidence stemming from the search of his room and his statement admissible as derivative evidence in a drug prosecution; although appellant consented to the search and made the statement two months after he withdrew his consent to the testing of his sample and one month after the test was performed, he consented to the search of his room and gave his statement only a few hours after learning of the test results, there were no intervening circumstances of significance to the investigation between the revocation of his initial consent to the urinalysis and his subsequent consent to search his room, and once he had revoked his initial consent, the government should have known that consent had been withdrawn, and negligently failed to act accordingly

Core Criminal Law Subjects: Evidence: Search and Seizure › Inevitable discovery

1. the doctrine of inevitable discovery is an exception to the exclusionary rule of the Fourth Amendment; MRE 311(b)(2) codifies this doctrine, stating that evidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made
2. the doctrine of inevitable discovery did not apply to the warrantless analysis of appellant’s urine after he withdrew his consent to a urinalysis, absent probable cause to suspect evidence of illegal drug use in appellant’s urine or any parallel investigation that would have led to the discovery of the evidence; although appellant and his vehicle were seen in an area of known narcotic trafficking accompanied by a stranger who appeared to purchase narcotics, appellant was a clean confidential source who had been recruited to act as an undercover agent during an ongoing drug investigation; as a result, the military judge did not abuse his discretion in concluding that the urinalysis evidence would not have been subject to inevitable discovery

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

1. an appellate court reviews a military judge’s evidentiary ruling on a motion to suppress for an abuse of discretion
2. in order to find an abuse of discretion in a military judge’s evidentiary ruling, an appellate court must find that the judge committed a clear error in his conclusions