Petition for Writ of Certiorari — Repp v. United States

. Supreme Court, U.S.

FILED

CT 20 987

F. SPANIOL, JR

§n the Supreme Court of the Cnited batt CLERK

OCTOBER TERM, 1987

HAROLD U. REPP, PETITIONER,

V.

UNITED STATES, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

EUGENE R. FIDELL -

(Counsel of Record)

JEFFREY K. STITH

Klores, Feldesman & Tucker

2001 L Street, N.W.

Washington, D.C. 20036

(202) 466-8960

COLONEL LEO L. SERGI

CAPTAIN HENRY J. SCHWEITER

Defense Services Division

Building 5683

Bolling Air Force Base

Washington, D.C. 20332

Of Counsel: (202) 767-1562

NORMAN a Gol DBERG Counsel for Petitioner

406 West State Street

Media, Pennsylvania 19063

MAJOR DAVID M. SCHNEIDERMAN

Fi. Meade, Md. 20755

MAJOR CHARLES L. WILLE

Andrews Air Force Base, Md. 20335

OCTOBER 1987

QUESTIONS PRESENTED

1. Is it a search to require a person to strip to his

underwear and expose his forearms?

2. Where a person has been deprived of his liberty

without probable cause, may clothed parts of his body be

examined and may he be compelled to furnish blood and

urine samples?

(I)

INDEX

Page

EEO sa UR l

ee eda e hase bh ease esd e seuss |

Constitutional, Statutory and Regulatory Provisions ........ 2

ES 6

er 10

1. A PERSON WEARING A LONG-SLEEVED GAR-

MENT HAS A REASONABLE EXPECTATION OF

RRs Dh SOW RUUD WUPUUECPAPRINGD 2... c ween 14

Il. MERELY BEING SEEN APPROACHING A

TRAILER FOUND TO BE THE SCENE OF DRUG

TRAFFICKING IS NOT PROBABLE CAUSE TO AR-

REST, SEARCH, OR COMPEL THE PRODUCTIGN

OF URINE AND BLOOD SAMPLES. ............... 19

Ne ne wabauuaeaves 22

TABLE OF AUTHORITIES

Cases:

Arizona v. Hicks, 107 §.Ct. 1149 (1987) ............... 17, 18

Brooks v. State, 13 Md.App. 151, 282 A.2d 516 (1971)... 16

Close-It Enterprises v. Weinberger, 64 A.D. 2d, 686,

Me? Wi. uw. Oe oer (20 Dept 1978) ................5. 19

Commonwealth v. Stickle, 484 Pa. 89, 398 A.2d 957

eck ek sh aeasnvesvcces 17

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....... i

Cupp v. Murphy, 412 U.S. 291 (1973) ................. 18

DeWeese v. Town of Palm Beach, 616 F.Supp. 971

ee a aN ees winntccaccass 18

Duvallon v. District of Columbia, 515 A.2d 724 (D.C.

EE RE A 18

Goldman v. Weinberger, 475 U.S. 503 (1986)... 2.0.0... 8, 15

Katz v. United States, 389 U.S. 347 (1967) 2... 00...... 14

Levy v. Dillon, 286 F.Supp. 593 (D. Kans. 1968), aff'd,

ee Rr 8 eRe | er 13

Marsh v. United States, 344 F.2d 317 (Sth Cir. 1965)... .. 16, 17

McCarty v. McCarty, 453 U.S. 210 (1981)... 2.2... 22

McMullan v. State, 258 Md. 147, 265 A.2d 453 (1970) .... 19

(111)

IV

ases — Continued Page

In re Paimer, 120 R.1. 250, 386 A.2d 1112 (1978) ........ 19

Parker 0. LeU; GAT UB. TAO CRS 6h ci iw ieessankens 10

People v. Ferguson, 214 Cal.App.2d 772, 29 Cal.Rptr.

Se Ge Eg Sb acchcubicdec ween saskenheenks 16

People v. Garcia, 7 Cal.App.3d 314, 86 Cal.Rptr. 628

SENG, SEL cc Waan we ceibarsen ta nenenteresseks es 17

People v. Govea, 45 Cal.Rptr. 253 (Ist Dist. 1965) ...... 13

People v. Rios, 46 Cal.2d 297, 294 P.2d 39 (1956) ....... 15

Rochin v. California, 342 U.S. 175 (1951) . 2... 6. eee. 18

Schmerber v. California, 384 U.S. 757 (1966) ........... 18

Service v. Delian, 354 U.S. FEB (IGS 7) . ww 5 concen ncces 13

Solorio v. United States, 107 S.Ct. 2924 (1987) ......... 11

State v. Brown, 25 Wis.2d 413, 130 N.W.2d 760 (1964) ... 16

State v. Jackson, 29 Wis.2d 225, 138 N.W.2d 260 (1965) . 15

United States v. DiRe, 332 U.S. 581 (1948) ............. 21

United States v. Goodson, 471 U.S. 1063 (1985), on

remand, 22 M.J. 22 (C.M.A. 1986) (per curiam), on

further remand, 22M.J. 947 (A.C.M.R. 1986) ........ li

United States v. Keenan, 496 F.2d 181 (ist Cir. 1974) .... 17

United States v. Medina-Flores, 477 F.2d 225 (Sth Cir.

Se nr Pa er pw er ret te Terre 17

United States v. Murphree, 497-F.2d 395 (9th Cir.), cert.

ete, GEO S., GER CR 6 vn on hens Wn eens sececcs’. 16

United States v. Palmer, 575 F.2d 721 (9th Cir. 1978) .... 16

United States v. Repp, 23 M.J. 584 (A.F.C.M.R. 1986),

pet. denied, 24 M.J. 339 (C.M.A. 1987), reconsidera-

tion granted and aff'd, 24M.J. 447 (C.M.A. 1987) .... passim

United States v. Richardson, 338 F.2d 842 (6th Cir.

RE ne Te errr er re ty re Tere 17

United States v. Thomas, 729 F.2d 120 (2d Cir.), cert.

Ge a, IE & i. kk 8 5 6s ba Rd ds beamed 16

United States v. Winn, 544 F.2d 786 (Sth Cir. 1977) ..... 21

Williams v. City of Lancaster, Pennsylvania, 639 F.Supp.

ee 8 re eee eee eee 17

Wong Sun v. United States, 371 U.S. 471 (1963) ........ 12

Ybarra v. Illinois, 444 U.S. 85 (1979) ...............5-. 21

‘onstitution and Statutes:

SR ee an cca hues heck en neae 64 RW as 9

SR PR ere ere passim

10 U.S.C.A. § 802(a)(3) (West. Supp. 1987) ............ 22

PRET RE

V

Constitution and Statutes — Continued: | Page _

Pe oe el 10

ae Uae... § CRoaiey Comm. GEE IGBS) .. 2... ccc l

es es ee ka eneeu eats een 10

a ee ee iat oy wea v ben enka ain 10

Ge Sen Oe PEED Sow. va ccnscdwscuscancaccae 18

Military Justice Act of 1983, Pub.L. No. 98-209, 97 Stat.

ete le ee )

Uniform Code of Military Justice:

me eR ome ff: ene 22

Fis. iy ees OE I nv osc avcesaeacaaas 2,9

Fk, Bg, Oe ees ee ED a ws oct a in Wa bieceanas 7

Art. 67(b)(3), 10 U.S.C. § 867(b)(3) (Supp. III

PEE ae bo eh ce ua eke cea ie a cits Cacewe ces 1,9

Art. 67(h), 10 U.S.C. § 867(h) (Supp. II] 1985) ..... 7)

Same 3 Foe let. i rn 18

D.C. Code § 22-3112(3) (Cum.Supp. 1987) ............ 18

S.C. Code Ann. § 16-7-110 (Law. Co-op. 1976) ......... 18

Va. Code § 18.2-422 (Cum.Supp. 1987) ............... 18

Regulations:

Manual for Courts-Martial (1984):

CED paca occa cbisccucswahaenens 14

OE ee ene: - as ) F

I ee ek as as cine beeen 3

Mil. R. Evid. 314..... Liaaueuhaeakseeas 3, 4, 20, 21

& & - | ES secre art eerrennes 3.43 &.83

Pn Sek ca caes gaa atkbmee ve Kau ee uees 18

Rule for Courts-Martial (R.C.M.) 302(aj(1) .. 2.000... 9, 20

Miscellaneous:

CS ee Pe ee a eee 18

Boskey and Gressman, The Supreme Court’s New Cer-

tiorari Jurisdiction over Military Appeals, 102 F.R.D.

PaCS ceu cc brdal teu ts ia kaeiedd bene ees 12

129 Cong. Rec. $16837 (daily ed. Nov. 18, 1983) ........ 12

Exec. Order 12473, 49 Fed.Reg. 17152 (1984) ........... 2

W. LaFave, Search and Seizure (2d ed. 1987) ........... 21

Pee. Ten WOU, Ns Wa UNEP se cic'n du nsuucuhsdedaca 18

S.Ct.R. 17

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

HAROLD U. REPP, PETITIONER,

Vv.

UNITED STATES, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

Harold U. Repp respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Military Appeals entered in his case on July 22,

1987.

OPINIONS BELOW

The decision of the United States Air Force Court of

Military Review is reported at 23 M.J. 589 (A.F.C.M.R.

1986) and is reproduced in the appendix to this petition

(“Pet. App.”) at page 3a. The United States Court of

Military Appeals initially denied review, 24 M.J. 339

(C.M.A. 1987), Pet. App. 2a, but, on reconsideration,

granted review and summarily affirmed. 24 M.J. 447

(C.M.A. 1987), Pet. App. la.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1259(3) (Supp. III 1985) and 10 U.S.C. § 867(h)

(Supp. III 1985). The judgment of the Court of Military

Appeals was entered on July 22, 1987. On September 14,

1987, the Chief Justice granted an application for an ex-

tension of time in which to file a petition for certiorari.

(1)

2

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS

The Fourth Amendment provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized.

Article 7 of the Uniform Code of Military Justice

(“UCMJ”) provides:

Apprehension

(a) Apprehension is the taking of a person into

custody.

(b) Any person authorized under regulations govern-

ing the armed forces to apprehend persons subject to

this chapter or to trial thereunder may do so upon

reasonable belief that an offense has been committed

and that the person apprehended committed it. 10

U.S.C. § 807 (1982).

Rule 312 of the Military Rules of Evidence, Manual for

Courts-Martial, United States, 1984 (“MCM, 1984”), Pt.

Ill, Exec. Order No. 12473, 49 Fed. Reg. 17152 (1984),

provides, in pertinent part:

Rule 312. Body views and intrusions

(a) General rule. Evidence obtained from body views

and intrusions conducted in accordance with this rule

is admissible at trial when relevant and not otherwise

inadmissible under these rules.

(b) Visual examination of the body.

(1) Consensual. Visuai examination of the unclothed

body may be made with the consent of the individual

3

subject to the inspection in accordance with Mil. R.

Evid. 314(e).

(2) Inveluntary. An involuntary display of the

unclothed body, including a visual examination of

body cavities, may be required only if conducted in

reasonable fashion and authorized under the follow-

ing provisions of the Military Rules of Evidence: [a]

inspections and inventories under Mil. R. Evid. 313;

[b] searches under Mil. R. Evid. 314(b) and 314(c) if

there is a reasonable suspicion that weapons, contra-

band, or evidence of crime is concealed on the body

of the person to be searched; [c] searches within jails

and similar facilities under Mil. R. Evid. 314(h) if

reasonably necessary to maintain the security of the

institution or its personnel; [d] searches incident to

lawful apprehension under Mil. R. Evid. 314(g); [e]

emergency searches under Mil. R. Evid. 314(i); and

[f] probable cause searches under Mil. R. Evid.

315. ... (MCM, 1984, at III-l10—{emphasis and

bracketed lettering added).)

_- * 7

(d) Extraction of body fluids. Nonconsensual extrac-

tion of body fluids, including blood and urine, may

be made from the body of an individual pursuant to a

search warrant or a search authorization under Mil.

R. Evid. 315. Nonconsensual extraction of body

fluids may be made without such warrant or

authorization, notwithstanding Mil. R. Evid. 315(g),

only when there is clear indication that evidence of

crime will be found and that there is reason to believe

that the delay that would result if a warrant or

authorization were sought could result in the destruc-

tion of the evidence. Involuntary extraction of body

fluids under this rule must be done in a reasonable

4

fashion by a person with appropriate medical

qualifications. (MCM, 1984, at III-11.)

Rule 314(i) of the Military Rules of Evidence provides:

(i) Emergency searches to save life or for related pur-

poses. In emergency circumstances to save life or for

a related purpose, a search may be conducted of per-

sons or property in a good faith effort to render im-

mediate medical aid, to obtain information that will

assist in the rendering of such aid, or to prevent im-

mediate or ongoing personal injury. (MCM, 1984, at

III-13.)

Rule 315 of the Military Rules of Evidence provides, in

pertinent part:

Rule 315. Probable cause searches

(a) General rule. Evidence obtained from searches re-

quiring probable cause conducted in accordance with

this rule is admissible at trial when re :vant and not

otherwise inadmissible under these ruies.

(b) Definitions. As used in these rules:

(1) Authorization to search. An “authorization to

search” is an express permission, written or oral,

issued by competent military authority to search a

person or an area for specified property or evidence

or for a specific perscn and to seize such property,

evidence, or person. It may contain an order directing

subordinate personnel to conduct a search in a

specified manner.

(2) Search warrant. A “search warrant” is an express

permission to search and seize issued by competent

civilian authority.

« x *x

(d) Power to authorize. Authorization to search pur-

Suant to this rule may be granted by an impartial in-

dividual in the following categories:

(1) Commander. A commander or other person serv-

ing in a position designated by the Secretary con-

cerned as either a position analogous to an officer in

charge or a position of command, who has control

over the place where the property or person to be

searched is situated or found, or, if that place is not

under military control, having control over persons

subject to military law or the Jaw of war; or

(2) Military judge. A military judge or magistrate if

authorized under regulations prescribed by the

Secretary of Defense or the Secretary concerned.

* * *

(f) Basis for Search authorizations.

(1) Probable cause requirement. A search authoriza-

tion under this rule must be based upon probable

cause.

(2) Probable cause determination. Probable cause to

search exists when there is a reasonable belief that the

person, property, or evidence sought is located in the

place or on the person to be searched... .

(g) Exigencies. A search warrant or search authoriza-

tion is not required under this rule for a search based

on probable cause when:

(1) Insufficient time. There is a reasonable belief that

the delay necessary to obtain a search warrant or

search authorization would result in the removal,

destruction, or concealment of the property or

evidence sought;

(2) Lack of communications. There is a reasonable

military operational necessity that is reasonably

believed to prohibit or prevent communications with

a person empowered to grant a search warrant or

authorization and there is a reasonable belief that the

delay necessary to obtain a search warrant or search

authorization would result in the removal, destruc-

6

tion, or concealment of the property or evidence

sought;

* * t—--—

(4) Not required by the Constitution. A search war-

rant or authorization is not required by the Constitu-

tion of the United States as applied to members of the

armed forces. .. . (MCM, 1984, at III-14 to -15.)

STATEMENT OF THE CASE

Petitioner was convicted by an Air Force court-martial

of use of heroin and sentenced to be confined for three

years, to forfeit $1583 pay per month for 36 months, and

to be dismissed from the service. The conviction rested on

the results of urine and blood sampling that revealed the

use of heroin. Unlike so much of the drug-related litiga-

tion that has recently clogged the federal and state courts,

the laboratory results in this case were not the product of

any random urinalysis program, but rather the result of

the criminal investigative process that, properly or not,

had come to focus specifically on Captain Repp.

The facts surrounding the government’s acquisition of

the incriminating evidence are largely undisputed, and |

were summarized by the Air Force Court of Military

Review as follows:

The evidence revealed that on | March 1985, civilian

la nforcement officers were conducting a “stake-

out” of the residence of a known heroin addict who

was suspected of being a drug dealer. While the police

were watching the house, approximately eight to ten

individuals arrived and left strortty-after-completing a

“transaction” of some type. Later, between [noon]

and [1:00 p.m.], a bright red Corvette with Oregon

tags arrived driven by an individual described as 62”,

slender with sandy brown hear and wearing a green

military uniform, i.e., a “jump suit with colorful

7

patches on the shoulders.” A short time thereafter

using a warrant issued by a civilian magistrate, the

residence was searched. Twenty-seven “balloons” of

heroin, together with syringes and $6,000.00 in cash,

were uncovered.

On 4 March, the civilian police told military in-

vestigators at George Air Force Base about the red

corvette with Oregon tags driven by an individual

who was apparently a servicemember. Later the car

was identified as the [petitioner’s]. On the afternoon

of the next day, 5 March, the [petitioner] was taken

from the squadron lounge to the Office of Special In-

vestigations (OSI). There, the [petitioner] contends

that while he was advised of his right to counsel and

given codal warnings [under Article 31 of the UCMJ,

10 U.S.C. § 831 (1982)], he was not informed of the

offense of which he was suspected. The [petitioner]

further states he asked for a lawyer “three of four

times,” but none was provided. What occurs next is

contested. The [petitioner] maintains he was required

to remove his flight suit leaving him in his underwear

while his arms were éxamined. The investigator who

conducted the body view stated that initially the [peti-

tioner] was asked only to unzip the flight suit to the

waist. In any event, needle marks were found on the

[petitioner’s] right and left forearms and on his

ankles. At this point he was asked to disrobe com-

pletely and his entire body was examined and

photographed. The record is clear that the [petitioner]

did not consent to this procedure.

Later, at approximately [6:30 p.m.] the [petitioner]

was taken to the emergency room of the base hospital

and examined by a physician. The examination

disclosed approximately ten puncture marks on the

hands, forearms and ankles that were consistent with

a hypodermic needle injection. The [petitioner] also

N

manifested capillary blood pressure and _ pulse

changes which are symptomatic of narcotic

withdrawal.

That evening, pursuant to a search authorization,

the [petitioner] was required to provide a urine sam-

ple and permit a medical technician to withdraw

blood. Laboratory tests revealed the presence of

opiates. 23 M.J. at 590-91.

At trial, the defense moved to suppress the evidence of

the puncture marks observed during the body view. R.

25ff. The military judge denied the motion, finding that

“arms are public” and not protected by any reasonable ex-

pectation of privacy. R. 72. A related motion to suppress

all evidence found as a result of the arm examination was

also denied on the ground that the initial view was proper.

es. Fas ©

On mandatory review, the Court of Military Review af-

firmed. While it did not resolve the dispute over whether

the OSI investigator asked petitioner to remove his

flightsuit entirely or merely unzip it to the waist, this fac-

tual question is of no moment since, even by the in-

vestigator’s testimony, the Fourth Amendment was

violated.

The court disposed of petitioner’s constitutional objec-

tions by a combination of devices. First, it found that

because he might have chosen to wear a short-sleeved shirt

rather than a long-sleeved flightsuit,' he had no protected

privacy interest in his forearms. 23 M.J. at 591-92.

Accordingly, it sidestepped the Fourth Amendment by

concluding that the view of petitioner’s forearms was

' The flightsuit was lawful apparel under the Air Force’s uniform

regulation. It would have violated the regulation to have worn it with

rolled up sleeves. R. 42; see generally Goldman v. Weinberger, 475

U.S. 503 (1986). Petitioner was also ordered to take off the flight

jacket he was wearing over the flightsuit. R. 37.

9

simply not a search. In doing so, it treated as mutually ex-

clusive (1) “searches” within the meaning of the Fourth

Amendment and (2) “visual examinations” under Mil. R.

Evid. 312. 23 M.J. at 592.

Second, the court held that petitioner was under arrest

(“apprehended” in military legal parlance). /d.? Finding

that petitioner’s apprehension was based on probable

cause, it concluded that the extraction of petitioner’s

blood and urine was proper under a military search

authorization. Jd. at 593.

Finally, the court concluded that the OSI investigators

were within their rights in continuing their visual examina-

tion of petitioner’s body after finding needle marks. /d.

The findings of guilt and the sentence were affirmed.

The Court of Military Appeals had discretionary

authority to review the case. UCMJ Art. 67(b)(3), 10

U.S.C. § 867(b)(3) (Supp. III 1985). It initially denied

review, Pet. App. 2a, but, on reconsideration, summarily

affirmed. Pet. App. ta.?

2 See UCM§J Art. 7(a) supra. “Apprehension is the taking of a per-

son into custody.” Rule for Courts-Martial 302(a)(1), MCM, 1984, at

II-17. It is the equivalent of “arrest” in civilian terminology, and “must

be based on probable cause.” Discussion of R.C.M. 302(a)(1}, MCM,

1984, at I-17.

3 Under the Military Justice Act of 1983, defendants may seek cer-

tiorari only if the Court of Military Appeals grants discretionary

review. 10 U.S.C. § 867(h)(1) (Supp. III 1985). That court has de-

clined to promulgate a rule setting forth the considerations it applies

in deciding whether to grant review, cf. S.Ct.R. 17, but has apparently

been sensitive to the fact that a denial of review (unlike a summary af-

firmance) precludes direct review in this Court. The summary affirm-

ance in this case was in response to petitioner’s request that if the

Court of Military Appeals did not grant plenary review, it should at

least summarily affirm in order to permit him to seek a writ of cer-

tiorari. It is regrettable that Congress has limited miliiary accuseds’ ac-

cess to this Court far more strictly than for criminal defendants in the

state or Article III courts, but it is at least commendable that the court

below has found a way to reduce the potential for unfairness. The fact

10

REASONS FOR GRANTING THE WRIT

A variety of factors join together to discourage the

review of courts-martial in this Court. Some of these are

statutory, some are doctrinal, while some are probably

only subliminal. For example, Congress has placed limits

on the certiorari jurisdiction with respect to courts-martial

that are different in kind from those applicable to other

types of criminal conviction. Unlike convictions in the

district courts,4 not every court-martial conviction can be

the subject of a certiorari petition, and unlike cases arising

in the state courts, the writ of certiorari runs only to the

Court of Military Appeals (as opposed to the “highest

court of a State in which a decision could be had”).‘

Doctrinally, of course, the cases stress that “the military

is, by necessity, a specialized society separate from civilian

society.’

And on the subliminal level, factors such as the relative

unfamiliarity of military law, the government’s quickly

established pattern of implicitly disparaging military cer-

tiorari petitions by waiving response, and even the use of

special ways to write things like dates and times (not to

mention all the acronyms) probably have a subtle effect on

the availability of review here.

As a result, it is not surprising that in the more than

three years since Congress expanded the certiorari jurisdic-

tion to permit direct review of some court-martial convic-

that the Court of Military Appeals acted summarily should make no

more difference, from the standpoint of certworthiness, than if the

case had arisen in a state court and the highest court of the state had

denied discretionary review.

4 See 28 U.S.C. §§ 1291-92 (1982).

$28 U.S.C. § 1257 (1982).

6 E.g., Parker v. Levy, 417 U.S. 733, 743 (1974).

11

tions, of the scores of military certiorari petitions,’ only

two led to grants of certiorari. One case was summarily

vacated and remanded for consideration in light of an in-

tervening decision of this Court,® and the other, So/orio v.

United States, 107 S. Ct. 2924 (1987), was set down for

plenary briefing and argument. All other petitions that

have been acted on were denied, presumably because the

issues presented were, in most cases deemed to be peculiar

to the military setting. On these data it would not be

unreasonable to fear that cases coming from the Court of

Military Appeals may be relegated to the status of FELA

Or patent cases from the standpoint of their practical

eligibility for certiorari.

Mindful as we are of the difficulty any petitioner faces

in obtaining a grant of certiorari in a criminal case, we

Submit that it is urgent that the access of servicemen and

-women to this Court not be confined — or seen to be con-

fined —to those rare cases in which the Court is disposed

to reconsider one of its pre-1984 precedents in the military

area Or in which an intervening decision here directly

undermines a decision of the Court of Military Appeals.

Such a restriction, coming on top of the already narrow

terms of the congressional grant, would make that grant a

hollow.promise of equal appellate justice for the millions

of military personnel, especially now that the subject mat-

ter jurisdiction of courts-martial is no longer limited to of-

fenses that are service-connected.?

The case at bar involves neither of the exceptional cir-

cumstances that account for the two prior grants in

military cases, but rather cails for an exercise of this

’ As of October !5, 1987, 70 military certiorari petitions had been

filed.

8 United States v. Goodson, 471 U.S. 1063 (1985), on remand, 22

M.J. 22 (C.M.A. 1986) (per curiam), on further remand, 22 M.J. 947

(A.C.M.R. 1986).

% Solorio v. United States, supra.

12

Court’s usual Rule 17 criteria.'° Even if the armed forces

were treated as analogous to the District of Columbia for

purposes of that rule,'! this should still be the next UCMJ

case in which plenary review is granted because it involves

an offense not peculiar to the military and egregious error

on recurring and important issues that are every bit as

likely to arise in a civilian context.

In the discussion that follows, the steps in the pro-

gressive abrogation of petitioner’s Fourth Amendment

rights may, for convenience, be organized as follows:

Step 1. Surveiilance of addict’s house

Step 2. The visit to OSI

Step 3. Compulsory strip to underwear and display of

forearms at OSI

Step 4. Compulsory complete disrobing and

photographing at OSI

Step 5. Examination by physician at hospital

Step 6. Issuance of search authorization

Step 7. Compulsory production of urine sample and

extraction of blood ;

Step 8. Apprehension

This sequence of everits is a textbook illustration of of-

ficial disregard for the protections afforded against un-

reasonable searches and, seizures under both the Constitu-

tion and military law. The evidence on which petitioner’s

conviction rests was obtained at Step 7. Since, however,

that step was infected by constitutional errors that oc-

curred earlier in the process, the Step 7 evidence was

tainted and, under time-honored principles, should have

been suppressed.!? In short, it is our submission that the

'© See 129 Cong. Rec. $16837 (daily ed. Nov. 18, 1983) (statement

of Sen. Kennedy) (discussing criteria for certiorari in military cases).

'! See Boskey & Gressman, The Supreme Court’s New Certiorari

Jurisdiction Over Military Appeals, 102 F.R.D. 329, 333 (1984).

'2 Wong Sun v. United States, 371 U.S. 471 (1963). Petitioner did

not challenge the probable cause for the search authorization eo

nomine, but his two motions to suppress unmistakably put in issue the

13

examination of petitioner’s forearms (Step 3) was a search,

but was not incident to an arrest, since petitioner was not

arrested until many hours later (Step 8), or if it was, the ar-

rest was not based on probable cause (Step 1).'? It was not

required by exigent circumstances since needle marks do

not disappear so quickly as to permit the authorities to

dispense with the warrant requirement.'4

A civilian search warrant was never issued as to peti-

tioner, and 2 military search authorization was not ob-

tained until weil after Step 3. It has never been contended

that the forearm examination was a military “inspection”

or “inventory”;'> a prison, border or entry-on-installation

search;'* or performed for medical or emergency pur-

poses.'? Nor did the government contend that time!® or

communications problems made it impossible to obtain

the necessary search authorization. '9

None of the requirements of Rule 312 of the Military

Rules of Evidence for an involuntary body view was

satisfied. Those rules were promulgated by Executive

factual predicate for that authorization. R.25, 73. A third motion ad-

dressed specifically to the search authorization would have been an ex-

ercise in futility, since the triad! court had already refused to suppress

the evidence obtained by OSI prior to issuance of the search

authorization. Hence, contrary to the implication in the Court of

Military Review’s opinion, 23 M.J. at 593, no waiver occurred.

'3 Mere presence On premises where a narcotics offense has oc-

curred, or being in the presence of a narcotics offender, is not prob-

able cause to arrest. E.g., People v. Govea, 45 Cal. Rptr. 253, 266 (Ist

Dist. 1965). See generally Point II infra.

'4 The government had the burden of showing that needle marks

are sO evanescent as to require action without a warrant or search

authorization. Its medical witness testified that healing could take up

to ten days. R. 307, 314.

'S Mil. R. Evid. 312(b)(2), 313.

'© Mil. R. Evid. 312(b)(2), 314(b)-(c), (h).

'7 Mil. R. Evid. 312(b)(2), 314(i).

'§ Mil. R. Evid. 315(g)(1).

'9 Mil. R. Evid. 315(g)(2).

14

Order, and have the force of law.?° All evidence that re-

sulted from Step 3 should therefore have been suppressed.

In addition, as we explain in Point II, there was no prob-

able cause to arrest petitioner in the first place, and

everything that flowed from his being summoned to OSI

should have been suppressed. :

A PERSON WHO WEARS A LONG-SLEEVED

GARMENT HAS A REASONABLE EXPECTA-

TION OF PRIVACY IN HIS FOREARMS

The holding of the trial judge and the Court of Military

Review that examination of the forearms of a person who

is wearing a long-sleeved garment is not a search is plainly

wrong. Personal autonomy has not so atrophied that the

state may take a peek at parts of the body that a normal

human being lawfully chooses to cover at the time. People

wear short-sleeved garments day in and day out when in

hot climates, or On Occasion in temperate ones, but the

choice is for them to make. A person who jogs, works out

or plays basketball in t-shirt and shorts does not thereby

consent to have the government examine his arms and legs

when he or she is wearing a business suit or dress.

Like the proverbial “glass that is half full,” choosing to

expose certain parts of one’s body is also—and

necessarily — a choice not to expose others. Whether an in-

dividual has a reasonable expectation of privacy?! in the

clothed portions is a matter of personal choice which the

law must honor if it is “one that society is prepared to ac-

cept as reasonable.” Katz v. United States, 389 U.S. 347,

361 (1967) (Harlan, J., concurring). There is no basis for

20 Levy v. Dillon, 286 F. Supp. 593, 596 (D. Kans. 1968), a/fd, 415

F.2d 1263 (10th Cir. 1969); see generally Service v. Dulles, 354 U.S.

363, 388 (1957) (agency bound by own regulations).

2! The reasonable expectation of privacy test has been expressly

adopted by the President for use in courts-martial. Mil. R. Evid.

311(a)(2), MCM, 1984, at III-8.

15

concluding that petitioner’s choice here was “one that

society is [un]prepared to accept as reasonable.” Indeed,

to the extent that the Air Force carefully regulates

uniforms, the fact that petitioner’s flightsuit was ap-

propriately and lawfully worn and had to be worn with the

sleeves down, R. 42, shows that his choice of clothing was

reasonable2? and his expectation of privacy in his forearms

well-founded.

The error below springs from a confusion of modesty

with privacy. In contemporary society, the law may de-

mand the former but the Constitution protects the latter.

That government conduct does not offend notions of

modesty says nothing about whether it contravenes

reasonable expectations of privacy.

Fxpectations of privacy are ambulatory and vary with

the choice of dress made by the individual. As a result,

what petitioner might have worn or been required to wear

is of no moment, and to focus On it is to reverse the polari-

ty of Justice Harlan’s formulation of the standard. The

military may, to be sure, require an individual to wear a

particular kind of uniform,?} but this petitioner’s apparel

was a lawful article of clothing at the time and in the cir-

cumstances of his presence at the OSI office, and the

government neither claimed nor proved otherwise.

The lower courts have frequently dealt with cases in

which needle marks have been observed on people’s arms,

but many of the cases are inapposite. For example, to the

extent that they involve people wearing short-sleeved

garments,?4 the individual has placed his arms on display.

22 The search occurred in March in a cold frame building in which

the heat was inoperative. R. 37.

23 Goldman v, Weinberger, supra.

24 E.g., People v. Rios, 46 Cal.2d 297, 294 P.2d 39, 40 (1956) (en

banc) (Traynor, J.). In State v. Jackson, 29 Wis,2d 225, 227, 138

N.W.2d 260, 262 (1965), forearm needle marks were observed because

the suspect was wearing a nightgown at the time of the arrest.

a

16

Cases involving parolee searches? or border searches are

equally inapposite, although the fact that arm views have

been defended as border searches certainly suggests that

the courts have thought of these examinations as

~~searches. 26

The decision below conflicts with the decision of the

Supreme Court of Wisconsin in State v. Brown, 25 Wis.2d

413, 130 N.W.2d 760, 763 (1964), where the court said:

If the police removed the defendant’s coat or his shirt

in order to discover the needle marks without consent

of the defendant, such action would constitute an il-

legal search of the person and would be subject to the

rule of [an earlier Wisconsin case that prohibited the

police from trailing a suspect based-on a traffic of-

fense]. What is in plain sight they may look at, what is

hidden or covered is verboten, (Emphasis added.)

Similarly, in People v. Ferguson, 214 Cal.App.2d 772,

29 Cal. Rptr. 691, 694 (2d Dist. 1963), the court treated the

police’s observation of needle marks as a search, and

noted the state’s concession that no case had been found

involving warrantless arrest based solely on the observa-

tion of needle marks.

25 United States v. Thomas, 729 F.2d 120, 122-23 (2d Cir.) (2-1),

cert. denied, 469 U.S. 846 (1984) (implying consent to search and “uni-

que relationship of the parole officer and the parolee”).

26 Compare United States v. Murphree, 497 F.2d 395, 396-97 (9th

Cir.), cert. denied, 419 U.S. 863 (1974), with Marsh v. United States,

344 F.2d 317, 323-25 (Sth Cir. 1965) (excluding evidence of needle

marks observed by constable on tip from Customs agent); cf. United

States v. Palmer, 575 F.2d 721 (9th Cir. 1978) (border search; lifting

up dress). Similarly, in Brooks v. State, 13 Md.App. 151, 282 A.2d

516, 521 (1971), an examination of a person’s arms for needle marks

after a narcotics arrest was upheld on the theory that it was a search

incident to lawful arrest, not that it was not a search at all.

17

The issue was also presented to the Fifth Circuit in

Marsh v. United States, supra note 26, where the court

treated a constable’s observation of needle marks as a

search, and invalidated it as the result of an illegal border

search. In United States v. Medina-Flores, 477 F.2d 225

(Sth Cir. 1973), the same court found it unnecessary to

decide whether a view taken of a defendant’s arms was an

illegal search. /d. at 228.

On the other hand, in Commonwealth v. Stickle, 484

Pa. 89, 398 A.2d 957 (1979), an examination of an ar-

rested person’s arms to determine the age of burn scars

was held not to be a search.

The lower courts have also divided on the related ques-

tion whether it is a search for examine a person’s hands

under an ultraviolet light.?’

The frequency with which issues concerning the ex-

amination of arms have arisen in the context of narcotics

prosecutions indicates that the lower courts and law en-

forcement authorities would benefit from guidance from

the Court in this area.

Arizona v. Hicks, 107 S.Ct. 1149 (1987), furnishes

strong support for petitioner’s position as to how the fore-

arms issue Ought to be resolved. In that case, the Court

concluded that a separate search occurred when police ex-

ecuting a search warrant moved stereo equipment for the

purpose of reading and recording serial numbers. /d. at

1152-53. One would certainly think that the privacy in-

terest of an individual in those portions of his body he

2? Compare, e.g., United States v. Keenan, 496 F.2d 181 (Ist Cir.

1974), with United States v. Richardson, 388 F.2d 842 (6th Cir. 1968);

Williams v. City of Lancaster, Pennsylvania, 639 F. Supp. 377, 381-82

(E.D. Pa. 1986) (“no reasonable expectation of privacy regarding the

surface of his hands, which were exposed to the view of all about

him”; held, not a search); People v. Garcia, 7 Cal.App.3d 314, 320, 86

Cal.Rptr. 628, 631 (2d Dist. 1970) (observation of needle marks on

hands in plain sight Ae/d not a search).

18

chooses to clothe is at least as worthy of legal recognition

as his interest in numbers marked on his stereo set. If mov-

ing a turntable triggers the Fourth Amendment, it would

be anomalous, to say the least, to hold that forcing some-

one to roll up his sleeves, take off his long-sleeved shirt,

or, as here, remove his long-sleeved flightsuit, in no way

trenched on reasonable privacy expectations.

To the extent, therefore, that the courts below may have

implicitly analogized the viewing of petitioner’s forearms

to a plain view search under Coolidge v. New Hampshire,

403 U.S. 443 (1971), the fact that his clothing had to be

moved, rolled up or removed brings the case into conflict

with Hicks, and requires, first, that the issue be analyzed

as a search, and second, that there be probable cause or

exigent circumstances not here present.

The case does not call upon the Court to provide a

Fourth Amendment fashion guide, although some bright

lines seem feasible and appropriate. For example, body

cavities and the portion of the body that lies beneath the

intact skin certainly involve reasonable expectations of

privacy,’ as would parts of the body that state indecent

exposure laws require to be clothed. ??

Conversely, a person wearing a mask in violation of the

Ku Klux Klan Act, 42 U.S.C. § 1985(3) (1982), or an

analogous statute?® would seemingly would not have such

28 E.g., Schmerber v. California, 384 U.S. 757 (1966); Rochin vy.

California, 342 U.S. 175 (1951); cf. Cupp v. Murphy, 412 U.S. 291

(1973) (scraping under fingernaiis).

29 E.g., D.C. Code § 22-1112 (1981); Duvallon v. District of Col-

umbia, 515 A.2d 724 (D.C. App. 1986); DeWeese v. Town of Palm

Beach, 616 F. Supp. 971 (S.D. Fla. 1985). Military law also recognizes

the offense of indecent exposure. MCM, 1984, § 88, at 1V-130.

30 F.g., D.C. Code § 22-3112.3 (Cum. Supp. 1987); Va. Code

§ 18.2-422 (Cum. Supp. 1987); S.C. Code Ann. § 16-7-110 (Law. Co-

op. 1976); see generally Annot., 2 A.L.R. 4th 1241 (1980); see, e.z.,

N.Y. Times, Oct. 8, 1987, at A20, col. 1 (indictment of cadets at The

Citadel for wearing masks in racial hazing incident).

19

an expectation in the circumstances set forth in the

Statute. >!

Areas where society including the military recognizes per-

sonal autonomy in clothing, such as heads that may or may

not be covered, hands that may or may not be gloved, or

sleeves that may be long or short fail in the broad middle

ground between the mandatory and the prohibited. What

seems clear is that an intrusion on this zone of autonomy

cannot be upheld on the basis of what an individual might

have worn as opposed to what he actually wore.

For these reasons, OSI’s examination of petitioner’s

forearms, and all that followed from that examination,

should have been suppressed.

MERELY BEING SEEN APPROACHING A TRAILER

FOUND TO BE THE SCENE OF DRUG TRAFFICKING IS

NOT PROBABLE CAUSE TO ARREST, SEARCH, OR COMPEL

THE PRODUCTION OF URINE AND BLOOD SAMPLES

In addition to the fact that OSI had no right to compel

petitioner to display his forearms, there was no probable

cause to summon him to the OSI office in the first place.

Because the interaction with OSI — however it is labeled —

was unwarranted, all the evidence resulting from the fore-

arm examination (Step 3), compulsory disrobing (Step 4),

and examination by the physician (Step 5), was improperly

received. Although the compulsory blood and urine

samples (Step 7) were obtained with a search authorization

(Step 6), that authorization was predicated on the informa-

tion unconstitutionally obtained in Steps 2-5. Hence, the

results of those tests should have been suppressed as well.

3! Presumably, a person who wears headgear in a courtroom would

also have no reasonable expectation of privacy in the part covered.

The precise issue appears not to have been litigated. Cf. McMillan vy.

State, 258 Md. 147, 265 A.2d 453 (1970); Close-Jt Enterprises v.

Weinberger, 64 A.D.2d 686, 407 N.Y.S.2d 587 (2d Dep’t 1978); Jn re

Palmer, 120 R.1. 250, 386 A.2d 1112 (1978).

20

Although the decision of the Court of Military Review

does not make the point clear, petitioner was not ap-

prehended until Step 8. Hence, none of the prior invasions

of his rights can be justified as having been incident to a

lawful arrest. — =

Throughout the suppression hearing, enither side con-

tended that Captain Repp had been-apprehended prior to

Step 8. Rather, the parties took the position that he had

merely been detained. Defense counsel carefully described

Captain Repp’s status as “detention, not apprehension.”

R. 25, “specifically to rule out any notion that a search in-

cident to apprehension permissibly occurred, even in the

absence of a search warrant.” R.26; see also R. 62, 69. The

prosecutor noted his “total agreement” with the defense’s

statement of the case with specific exceptions not here rele-

vant, R. 29, describing the parties’ positions as a. “stipula-

tion.” R. 31. The government was afforded an opportuni-

ty to offer evidence on those matters with respect to which

it disagreed with the defense, R. 32, but offered nothing to

show petitioner had been apprehended prior to Step 8. The

key government witness testified that petitioner had been

“detained by another investigator and a special agent and

brought into [OSI’s] office.” R. 33. Captain Repp was in-

formed he was being detained. R. 35.

To the extent that the Court of Military Review chose to

disregard the parties’ agreement on this aspect of the case,

its decision — including what we assume was an alternative

holding that probable cause existed to apprehend, 23 M.J.

at 593 —is clearly erroneous.

The difference between a detention and an apprehen-

sion is critical from the standpoint of the lawfulness of the

successive searches. As the official Discussion of R.C.M.

302(1) explains,

[a]n investigative detention may be made on less than

probable cause (see Mil. R. Evid. 314(f)), and nor-

mally involves a relatively short period of custody.

Furthermore, an extensive search of the person is not

authorized incident to an investigative detention, as it

21

is with an apprehension. See Mil. R. Evid. 314(f) and

(g). This rule does not affect any seizure of the person

less severe than apprehension. MCM, 1984, at II-17.

Either petitioner was detained or he was apprehended.

If the former, OSI did not have authority under the

military’s own rules to conduct the search they conducted.

If the latter, it was an unlawful apprehension because it

was not based on probable cause. Merely calling a single

time?2 at premises owned by another which prove to be the

site of drug trafficking did not furnish probable cause to

believe, four days later, that petitioner himself had com-

mitted an offense. Indeed, petitioner himself had not been

identified, but —at most—only his car. The evidence con-

firmed that the driver of the Corvette never entered the

trailer, but merely knocked on the door of the trailer and

called the occupant’s name but never talked to anyone

there, and, unlike other persons who had been seen that

day by the police “stakeout,” R. 230, engaged in no trans-

action with anyone before driving off. R. 240, 248-49.

This is far too slender a reed on which to predicate an

arrest incident to which a person may be forced to un-

dress. E.g., Ybarra v. Illinois, 444 U.S. 85 (1979) (mere

propinquity to suspect persons or premises insufficient);

United States v. Di Re, 332 U.S. 581 (1948); see generally 2

W. LaFave, Search and Seizure, supra, § 3.6(c).33 These

facts did not add up to probable cause.

32 See generally 2 W. LaFave, Search and Seizure § 3.6(c), at 56-57

(2d ed. 1987) (collecting cases).

33 See, e.g., United States v. Winn, 544 F.2d 786 (Sth Cir. 1977) (no

probable cause based solely on prior association with occupant of

premises where marijuana found in plain view, where defendant not

present at time of crime).

22

CONCLUSION

The questions presented are genuinely important and af-

fect not only the millions of Americans serving in the

armed forces34— reason enough to grant review — but the

rest of us as well. The cases are divided on whether an in-

spection of forearms is even a search and the decision

below reflects, on this and the second question presented,

a profound misapprehension of Fourth Amendment

teaching. For all these reasons, the petition for a writ of

certiorari should be granted.

—_

EUGENE R. FIDELL

(Counsel of Record)

JEFFREY K. STITH

Klores, Feldesman & Tucker

2001 L Street, N.W.

Washington, D.C. 20035

(202) 466-8960

COLONEL LEO L. SERGI

CAPTAIN HENRY J. SCHWEITER

Defense Services Division

Building 5683

Of Counsel: Bolling Air Force Base

Washington, D.C. 20332

NORMAN L. GOLDBERG (202) 767-1562

406 West State Street

Media, Pennsylvania 19063 Counsel for Petitioner

MAJOR DAVID M. SCHNEIDERMAN

Ft. Meade, Md. 20755

MAJOR CHARLES L. WILLE

Andrews Air Force Base, Md. 20335

OCTOBER 1987

34 Over 2.1 million persons are on active duty. The UCM§J also ap-

plies to, among others, the numerous retired regulars, 10 U.S.C.

§ 802(a)(4) (1982); McCarty v. McCarty, 453 U.S. 210, 221-222

(1981), and drilling reservists. 10 U.S.C.A. § 802(a)(3) (West. Supp.

1987).

APPENDIX

_—_

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 56577/AF

CMR Dkt. No. 25211

UNITED STATES, APPELLEE

V.

HAROLD U. REppP (179-40-2426), APPELLANT

ORDER

On consideration of appellant’s motion to file petition

for reconsideration out of time and petition for recon-

sideration, it is, by the Court, this 22nd day of July, 1987,

ORDERED:

That the motion to file petition for reconsideration out

of time is hereby granted;

That the petition is granted; and

That the decision of the United States Air Force Court

of Military Review is affirmed.

For the Court,

/s/ JOHN A. Cutts, Il

Deputy Clerk of the Court

(la)

2a

Thursday, May 28, 1987

87-161

ORDERS DENYING PETITION FOR REVIEW

No. 56577/AF U.S. v. Harold U. Repp. CMR 25211.

3a

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW.

ACM 25211.

UNITED STATES

Vv.

CAPTAIN HAROLD U. REppP, 179-400-2426

FV, UNITED STATES AIR FORCE. ~

6 Oct. 1986.

DECISION

HODGSON, Chief Judge:

The case before us is one of first impression and in-

volves evidence obtained from a body view. The ap-

plicable evidentiary rule states:

RULE 312. BODY VIEWS AND INTRUSIONS

(a)

(b)

GENERAL RULE. Evidence obtained from body

views and intrusions conducted in accordance

with this rule is admissible at trial when relevant

and not otherwise inadmissible under these rules.

VISUAL EXAMINATION OF THE BODY

* * * * * *

(2) INVOLUNTARY. An involuntary display of

the unclothed body, including a visual examina-

tion of body cavities, may be required only if con-

ducted in a reasonable fashion and authorized

under the following provisions of the Military

Rules of Evidence: .... searches incident to

4a

lawful apprehension under Mil.R.Evid. 314(g)

[Emphasis added].

* * * + . *

(d) EXTRACTION OF BODY FLUIDS. Non-

consensual extraction of body fluids, including

blood and urine, may be made from the body of

an individual pursuant to search warrant or a

search authorization under Mil.R.Evid. 315... .

Involuntary extraction of body fluids under this

rule must be done in a reasonable fashion by a

person with appropriate medical qualifications.

Mil.R.Evid. 312 has no counterpart in the Federal Rules

of Evidence and it represents an attempt by the drafters of

the Military Rules of Evidence to merge the prior case law

touching on self-incrimination' with the right to freedom

from unreasonable searches.

The appellant is a rated Air Force officer who stands

convicted of using heroin. On appeal, as at trial, he

challenges the methods by which his heroin use was

discovered. In general the essential facts are undisputed.

The evidence revealed that on 1 March 1985, civilian law

enforcement officers were conducting a “stake-out” of the

residence of a known heroin addict who was suspected of

being a drug dealer. While the police were watching the

house, approximately eight to ten individuals arrived and

left shortly after completing a “transaction” of some type.

' Historically, under both civilian and military law, a suspect may

be compelled to perform such acts as trim or grow a beard, try on

clothes, submit to fingerprinting or exhibit scars. M.C.M.1969 (Rev.),

para. 150(b); United States v. Rosato, 3 U.S.C.M.A. 143, 11. C.M.R.

(1953) and cases cited therein. Such acts were viewed as not involving

self-incrimination.

Sa

Later, between 1200 and 1300 hours, a bright red Corvette

with Oregon tags arrived driven by an individual described

as 6'2”, slender with sandy brown hair and wearing a green

military uniform, i.e., a “jump suit with colorful patches

on the shoulders.” He stayed a few minutes and left. A

short time thereafter using a warrant issued by a civilian

magistrate, the residence was searched. Twenty-seven

“balloons” of heroin, together with syringes and $6,000.00

in cash, were uncovered.

On 4 March, the civilian police told military in-

vestigators at George Air Force Base about the red Cor-

vette with Oregon tags driven by an individual who was

apparently a servicemember. Later the car was identified

as the appellant’s. On the afternoon of the next day, 5

March, the appellant was taken from the squadron lounge

to the Office of Special Investigations (OSI). There, the

appellant contends that while he was advised of his right to

counsel and given codal warnings, he was not informed of

the offense of which he was suspected. The appellant fur-

ther states he asked for a lawyer “three or four times,” but

none was provided. What occurred next is contested. The

appellant maintains he was required to remove his flight

suit leaving him in his underwear while his arms were ex-

amined. The investigator who conducted the body view

stated that initially the appellant was asked only to unzip

the flight suit to the waist. In any event, needle marks were

found on the appellant’s right and left forarms and on his

ankles. At this point he was asked to disrobe completely

and his entire body was examined and photographed. The

record is clear that the appellant did not consent to this

procedure.

Later, at approximately 1830 hours the appellant was

taken to the emergency room of the base hospital and ex-

amined by a physician. This examination disclosed ap-

proximately ten puncture marks on the hands, forearms

and ankles that were consistent with a hypodermic needle

- —————

6a

injection. The appellant also manifested capillary changes,

i.e., eyes abnormally large, and blood pressure and pulse

changes which are symptomatic of narcotic withdrawal.

That evening, pursuant to a search authorization, the

appellant was required to provide a urine sample and per-

mit a medical technician to withdraw blood. Laboratory

tests on each specimen revealed the presence of opiates.

The appellant first urges that he had a reasonable expec-

tation of privacy in his forearms which he chose io shield

from public view by wearing a long sleeve garment. We

note, however, the decision of what clothing to wear was

not his. He was required to wear the standard Air Force

flying uniform. He argues that requiring him to expose his

arms was just as much a search as asking him to empty his

pockets, a postition held in United States v. Kinane, |

M.J. 309 (C.M.A.1976). tn that case the court held that a

detective’s action in demanding that an accused remove

items from his pockets constituted a “search” within the

ambit of the Fourth Amendment. He also directs our at-

tention to State v. Brown, 25 Wis.2d 413, 130 N.W.2d 760

(1964), wherein the Wisconsin Supreme Court stated that

looking for needle marks on the arms of a suspect was a

search within the meaning of the term.

[1] The editorial comment to Rule 312 opines that the

rule applies a sliding scale to body evidence problems — the

greater the Fourth Amendment intrusion, the broader the

protection. At the least intrusive end of the scale are those

slight intrusions such as visual examinations of the body.

At the other end are gross intrusions, like surgical pro-

cedures to recover evidence. S. Saltzburg, L. Schinasi and

D. Schlueter, Military Rules of Evidence, 2d ed., p. 221.

As we stated earlier, Rule 312 has no civilian equivalent,

but decisions from state and federal appellate courts can

give guidance as to what is a minimal intrusion. The

TE EE

7a

Supreme Court of Georgia held that swabbing a suspect’s

hands to obtain gunpowder residue was not a search nor

did it amount to self-incrimination. Strickland v. State,

247 Ga. 219, 275 S.E.2d 29 (1981). In a similar case the

New York Court of Appeals in People v. Wesley, 88

Misc.2d 177, 387 N.Y.S.2d 34 (N.Y.Sup.1976), stated that

shining an ultra-violet light on an accused’s hands was not

a search. In a receni New Jersey case the appellant argued

that the police had no right to “visually inspect” the soles

of his shoes which were concealed from view because he

was standing. There the Appellate Division of the New

Jersey Superior Court ruled that for a visual inspection to

constitute a “search”, the accused must have had a

reasonable expectation of privacy in the area searched.

The court found only a minimal expectation in the soles of

shoes. State v. Bates, 202 N.J.Super. 416, 495 A.2d 422

(1985). We reach the same conclusion here. Forearms

possess no reasonable expectation of privacy. They are

routinely exposed to public view as are other parts of the

body. Had the appellant not been assigned to a flying unit,

he might very well have worn a short sleeve uniform shirt

to perform his military duties. See United States v. Mur-

phree, 497 F.2d 395 (9th Cir.1974).

Before further discussion in this aréa, it is well to

remember that, subject to the qualification that they must

be consistent with the U.C.M.J. and the United States

Constitution, the publication of new rules to proscribe the

mode of proof before courts-martial is within the authori-

ty of the President. Article 36, U.C.M.J.; United States v.

Gladwin, 14 U.S.C.M.A. 428, 34 C.M.R. 208 (1964). The

promulgation of the Military Rules of Evidence in 1980

was a proper exercise of such authority. See E.O. 12233, 1

September 1980; Sec. and Law Enforcement Emp., Dist.

C. v. Carey, 737 F.2d 187 (2d Cir.1984).

Accordingly, we conclude that requiring the appellant

to display his body to police was not a search under the

8a

Fourth Amendment, but a visual examination that is per-

mitted by Mil.R.Evid. 312. The actions of the officers

were minimally intrusive in an area where the appellani

had no reasonable expectation of privacy. See United

Staies v. Ferri, 778 F.2d 985 (3rd Cir.1985); see generally

United States v. Palmer, 575 F.2d 721 (9th Cir.1978);

United States v. Murphree, supra.

Interwoven with his challenge that requiring him to

display his forearms was a search, the appellant also urges

that accepting, arguendo, that body views are a lesser in-

trusion than a search, the police were still prohibited from

taking the action they did. His argument is this regard is

two-fold: (1) no probable cause existed for law enforce-

ment officers to “detain” him at OSI headquarters, and (2)

his status while there was as a “detainee” not someone who

had been apprehended for the commission of a crime. Ap-

pellate defense counsel remind us that involuntary visual

examinations under Rule 312(b) are allowed only in con-

junction with searches incident to a lawful apprehension

under Mil.R.Evid. 314(g).

[2-4] Discussing the second assertion first, a determina-

tion as to whether an apprehension has been effected in-

volves substance rather than form. No specific words or

any words at all need be used. All that is required is the in-

dividual’s freedom of locomotion be curtailed and this is

communicated to him. United States v. Horst, 17 M.J. 796

(A.F.C.M.R.1983); United States v. McCutchins, 37

C.M.R. 678 (A.C.M.R.1967). Applying this criteria to the

facts at hand, we have no hesitation in concluding that the

appellant was in fact apprehended. He was transported to

the OSI office in the company of two investigators; given

codal warnings and advised as to the right to counsel and

placed in a room where others could come and go but he

could not. An apprehension is the equivalent of an arrest

and occurs when, in view of all the circumstances sur-

rounding the situation, a reasonable person would have

9a

believed he was not free to leave. R.C.M. 302; United

States v. Spencer, 11 M.J. 539 (A.C.M.R.1981). The facts

clearly support the conclusion that the appellant had been

apprehended when the visual examination of his forearms

was accomplished.

[5, 6] We also conclude that ample probable cause ex-

isted to apprehend the appellant. The investigators had in

their possession information that an individual meeting

the appellant’s description, i.e., height, build, hair and

wearing a military uniform and driving a car that matched

his in color, model and state tages were seen entering the

residence of a known drug dealer. A subsequent search of

the dealer’s house disclosed heroin packaged for sale and

related drug paraphernalia. The test for probable cause to

apprehend a suspect /s not proof beyond a reasonable

doubt, but information which would lead a reasonable,

cautious and prudent police officer to believe an offense

has been or is being committed. United States v. Horst,

supra. In our view, the investigators possessed such infor-

mation.

[7] Having determined that the apprehension was based

on probable cause, we now turn to the non-consensual ex-

traction of the appellant’s urine and biood. Rule 312(d)

permits such extraction pursuant to a search authorization

which the appellant at trial conceded was obtained. ~

Mil.R.Evid. 315. He did not challenge the search

authorization for lack of probable cause. See Mil.R.Evid.

31 1(a)(1).

[8, 9] Finally, the appellant maintains that forcing him

to completely disrobe after needle marks were observed on

his arms and ignoring his repeated requests for counsel

tainted the later taking of his urine and blood specimens.

We find no fault with the investigators continuing their

visual examination of the appellant’s body after the

discovery of needle marks. Such a procedure is within the

intent and purpose of Rule 312, and there is no require-

10a

ment that medical personnel be present at the time. People

v. Green, 52 Ill.App.3d 636, 10 Ill.Dec. 452, 367 N.E.2d

1061 (1977). Further, the appellant is not entitled to have

counsel present during the visual examination of his body.

He was not being interrogated and he made no “statement”

within the meaning of either the Fifth Amendment or Arti-

cle 31 of the Code. See United States v. Rushing, 17

U.S.C.M.A. 298, 38 C.M.R. 97 (1967); see also United

States v. Roa, 20 M.J. 867 (A.F.C.M.R.1985). This is not

the situation discussed in United States v. Goodson, 22

M.J. 22 (C.M.A.1986), wherein an accused repeatedly

asked for counsel, was ignored and later gave a statement

that was used at trial. The trial judge properly denied the

motion to suppress the evidence obtained from the body

view.

[10] Appellate defense counsel contend that their client’s

conviction cannot stand because the appellate record when

received by us did not contain a written pretrial advice

prepared by the staff judge advocate. R.C.M. 406(a).

During oral argument we questioned appellate government

counsel concerning this irregularity. We opined that the ad-

vice, if accomplished, should have been attached to the

record. R.C.M. 1103(b)(3)(A)(ii). By motion, which we

grant, the goverment offers the written pretrial advice sub-

mitted by the staff judge advocate to the convening

authority. It is clear that the latter officer had this docu-

ment to review prior to referring the offense to trial by

general court-martial. The record of trial was not properly

assembled initially, but this administrative error did not

prejudice the appellant.

lla

[11] We have reviewed the evidence in this trial and are

convinced beyond a reasonable doubt of the appellant’s

guilt. Article 66(c), U.C.M.J. For the reasons stated, the

findings of guilty and the sentence are

AFFIRMED.

Senor Judge FORAY and Judge MICHALSKI concur.

_s

US. GOVERNMENT PRINTING OFFICE: 1987 — 202-037/62003