Petition for Writ of Certiorari — Fitten v. United States

@<oreme Court, U.S.

FILED

wae 0377 SEP 8= 1995'

i’

e.

NOBFICE OF THE CLERK

In the

Supreme Court of the United States

October Term, 1995

TERRY S. FITTEN,

MESS MANAGEMENT SPECIALIST THIRD CLASS

U.S. NAVY

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

HOWARD BARRY GOODMAN

Lieutenant Commander, Judge Advocate

General’s Corps, U.S. Navy

Navy-Marine Corps Appellate

Defense Division

Washington Navy Yard, Building 111

Washington, D.C. 20374-1111

(202) 433-4161

Counsel for Petitioner

OW

NL \¥\}

yA VN

QUESTION PRESENTED

WHETHER A FORCED EXTRACTION OF URINE

BY CATHETER IS AN UNREASONABLE SEARCH

AND SEIZURE UNDER THE FOURTH

AMENDMENT AND VIOLATES DUE PROCESS OF

LAW UNDER THE FIFTH AMENDMENT.

(i)

TABLE OF CONTENTS

Page

EE I 97550 5 Ss a 6. OS WS Ve lbe oes l

ee ona 0 a ag a0 9. 0 bate ees 2

CONSTITUTIONAL PROVISIONS AND

EEE SOU WOME WEEEE Sida N's ew Wile eee ee 2

asupmeres Gr Bete CAGE... 2 occ c ence 3

REASON FOR GRANTING THE PETITION

This Case Presents a New and Important

Question in the Area of Intrusive Body

sempemes Ge Detmeres. .. . eee 7

ee ee 14

APPENDIX A

(Opinion of the U.S. Court of Appeals

for the Armed Forces --

United States vy. Fitten) ........-.-..- la

APPENDIX B

(Opinion of the U.S. Navy-Marine

Corps Court of Military Review --

Eynited States y, Fitten). ............... 10a

(iii)

APPENDIX C

(Relevant portions of Military Rule

of Evidence 312, Manual for

Courts-Martial, United States, 1984) ..... 58a

APPENDIX D

(Relevant portions of Military Rule

of Evidence 315, Manual for

Courts-Martial, United States, 1984) ..... 60a

(iv)

TABLE OF AUTHORITIES

Cases: Page

Bell v. Wolfish, 441 U.S. 520 (1978) ...........

Breithaupt v. Abram, 352 U.S. 432 (1957) ....... Y

Rochin v. California,

BAZ UB. FOO CEMOR 60 6 cb eles om 6-7, 9, 12-13

Schmerber v. California,

Pe AI ae EE 6 on 6 CE ae oe 7, 10

Skinner v. Railway Labor Executives’ Association,

Ee a ee ae oe ao a ee 8

Treasury Employees v. Von Raab,

SP ac EE 6k ee ees 6 ee 8

United States v. Jones, 5 U.S.C.M.A. 537,

SRE he as ee ee eee 8

United States v. Montoya De Hernandez,

ee Be CE Ae eee eins ete sa 7

United States v. Speight, 5 U.S.C.M.A. 668,

BS Ss Ae AE Ra Ee oes ee 8

United States v. Williamson, 4 U.S.C.M.A. 320,

5S Ce EE. Wis xs bes caves 9, 11-12

Vernonia School Dist. v. Acton,

No. 94-590 (June 26, 1995) ........ 7-8, 10, 12-13

(v)

Winston v. Lee, 470 U.S. 753 (1985) ......--- 7, 10

Yanez v. Romero, 619 F.2d 851 (10th Cir. 1980) . . 11

Constitutional Provisions:

U.S. Const. amend. IV .........e--. 2, 6, 7, 9-10

ike gaye rrr 2, 7, 12-13

Statutes and Rules:

10 USS. BOT occ cece ccden sees eewaees 5

y BUR Tete Bi . 5) ey rors 2

MER Bull, Sie ou wn av sase scone seen 2, 5-6, 8-11

vO 2.” * Be |. rrr ee ee ee 2

Miscellaneous:

Manual for Courts-Martial, United States,

App. 22, M.R.E. SIO) CIPO os omer tcac sas 9

S. Saltzburg et al, Military Rules of Evidence

Manual 286 (3d ed. 1991) ... 2... 2.2. ee ee eee 9

(vi)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

TERRY S. FITTEN,

MESS MANAGEMENT SPECIALIST THIRD CLASS,

UNITED STATES NAVY,

Petitioner,

v.

UNITED STATES OF AMERICA,

| Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES

Terry S. Fitten respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Armed Forces in this case.

OPINIONS BELOW

The opinion of the Court of Appeals for the Armed

Forces (App., infra, 1a-9a) is reported at 42 M.J. 179. The

(1)

2

opinion of the Navy-Marine Corps Court of Military

Review (App., infra, 10a-57a) is reported at 39 M.J. 659.

JURISDICTION

The Court of Appeals for the Armed Forces entered

its judgment on June 12, 1995 (App., infra, 1a). The

jurisdiction of this Court is invoked under 28 U.S.C. §

1259(3).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourth Amendment to the U.S. Constitution

provides, in relevant part:

The right of the people to be secure in their

persons ... against unreasonable searches and

seizures shall not be violated ...

The Fifth Amendment to the U.S. Constitution

provides, in relevant part:

No person shall be ... deprived of life,

liberty, or property, without due process of

law...

Relevant portions of Military Rules of Evidence 312

and 315 are set forth at App., infra, 58a-63a.

3

STATEMENT OF THE CASE

A. The Facts

On December 16, 1991, Petitioner, a petty officer

in the U.S. Navy, was absent for 2 1/2 hours without

authority from his unit, Naval Training Center (NTC), San

Diego, California. Upon his return, he appeared

intoxicated and disoriented. He was sent to the Branch

Medical Clinic for a fitness for duty examination, where he

was found unfit for duty by reason of drug or alcohol

abuse. He was then taken to the Naval Hospital

Emergency Room, where medical personnel observed that

he was disoriented, combative, and would intermittently

fail to respond to questioning or gentle stimuli. Petitioner

was placed on a gurney in limited restraint to immobilize

his neck and back; his hands were taped to the gurney.

Diagnostic tests were ordered, including a urinalysis to test

for dangerous drugs. Petitioner was asked to provide a

urine sample by natural evacuation. However, he either

could not or would not.’

A criminal investigator, Senior Chief Rodney

Burton, was dispatched to the hospital by Lieutenant

Commander (LCDR) Charles Clopton, the Staff Judge

Advocate for NTC, San Diego. LCDR Clopton suspected

Petitioner of drug abuse and wanted Senior Chief Burton

to get aurine sample from Petitioner for use in disciplinary

proceedings against Petitioner. Senior Chief Burton asked

Petitioner to consent to provide a urine sample. Petitioner

at first agreed, then lost consciousness, and then declined

to provide Senior Chief Burton with a sample.

' The evidence is unclear on this point.

4

A nurse then told Senior Chief Burton that

Petitioner admitted to her that he had taken drugs over the

weekend. Senior Chief Burton relayed this information by

telephone to LCDR Clopton, and asked whether there was

probable cause for a command search authorization to

compel Petitioner to provide a urine sample. LCDR

Clopton told Senior Chief Burton that he would check and

call him back. LCDR Clopton called back five minutes

later and told Senior Chief Burton that they had probable

cause and command authorization to compel Petitioner to

provide a urine sample.

Senior Chief Burton went to Petitioner’s gurney,

where the nurse was preparing to obtain a diagnostic urine

sample by catheter. Senior Chief Burton told the nurse

that he had command authorization to get an evidentiary

urine sample from Petitioner, and asked the nurse if she

could get it through the catheter for him. The nurse

agreed.

Petitioner told the nurse that he did not want to be

catheterized, and that he could produce urine naturally if

given water. Petitioner resisted insertion of the catheter,

and broke free of his restraints. . Petitioner was then

subdued by medical and security personnel and placed in

four-point leather restraints. With Petitioner’s hands and

legs now immobilized, the nurse inserted a catheter

through Petitioner’s penis, into his bladder. The catheter

was 18 inches long and 1/8 inch wide. Petitioner was

conscious, with his genitals exposed to a crowd of

approximately ten onlookers, some of whom were not

medical personnel. To start the flow of urine, the nurse

had to manipulate the catheter and pump air into

Petitioner’s bladder. When the urine began to flow, some

I aac iciiinaiiidllils

5

of the onlookers applauded. Petitioner was in pain, was

crying, and felt degraded.

The nurse filled a bottle with Petitioner’s urine.

She then took Senior Chief Burton’s bottle and attached it

to the catheter. There was not enough urine in the second

bottle for urinalysis testing, so the nurse poured some urine

from the first bottle into the second. The first bottle was

sent to a hospital laboratory to test for dangerous drugs.

The results of this test are not in the record. The second

bottle was given to Senior Chief Burton, who took it to the

Navy Drug Lab, where it tested positive for cocaine and

marijuana.

B. Proceedings Below

Petitioner was charged, inter alia, with wrongful use

of cocaine and marijuana in violation of UCMSJ, Article

112a, 10 U.S.C. § 912a. At his court-martial, he moved to

suppress the results of the Navy Drug Lab urine test. The

military judge denied the motion. Petitioner then entered

conditional pleas of guilty to the two drug offenses. He

was found guilty in accordance with his pleas and was

sentenced to 45 days confinement, reduction to pay grade

E-1, and a bad-conduct discharge.

The Navy-Marine Corps Court of Military Review

affirmed the findings and sentence. The lead opinion

reasoned that the urinalysis results were admissible under

two alternative theories. First, all of the urine obtained

was essentially one sample, which was obtained for a valid

medical purpose, and was thus admissible under

Mil.R.Evid. 312(f). Second, the urine sample was obtained

in a reasonable fashion, by qualified medical personnel,

pursuant to command search authorization, and was thus

6

admissible under Mil.R.Evid. 312(d). Use of a catheter, in

the Court’s view, did not shock the conscience under

Rochin v. California, 342 U.S. 165 ( 1952).

Senior Judge Mollison dissented. In his opinion, a

search and seizure by catheterization is per se unreasonable

under the Fourth Amendment, and thus cannot be

sanctioned under Mil.R.Evid. 312(d). He also opined that

Mil.R.Evid. 312(f), which permits admission of evidence

obtained for a valid medical purpose, does not justify the

admission of the test results in this case. In Senior Judge

Mollison’s view, once the valid medical purpose for an

intrusion ends, the admission of evidence taken thereafter

by means of the ongoing intrusion cannot be justified by

medical necessity. The urine sample obtained by Senior

Chief Burton and tested at the Navy Drug Lab was not

drawn or used for any medical purpose; it was drawn

solely for a law enforcement purpose. According to Senior

Judge Mollison, once the medical purpose for the

catheterization ceased, Petitioner was entitled to have the

procedure stopped and the apparatus immediately removed.

When the nurse left the catheter in place to capture the

second urine sample, she was not acting for any valid

medical purpose. Therefore collection of the second

sample was prohibited by military case law holding that

catheterization of a protesting service member infringes

upon fundamental standards of decency in law enforcement

and violates due process.

Chief Judge Larson concurred separately to address

Senior Judge Mollison’s dissent. In his view, the

catheterization in this case was initially justified by a valid

medical purpose. Any extension to accommodate law

enforcement was de minimis, and thus reasonable under the

Fourth Amendment. He further stated that Rochin did not

7

apply because the initial intrusion was for a medical

purpose and not solely for a law enforcement purpose.

The Court of Appeals for the Armed Forces

unanimously affirmed, holding that there was no violation

of petitioner’s rights under the Fourth Amendment, the

Due Process Clause of the Fifth Amendment, or the

Military Rules of Evidence. The Court reasoned that the

catheter was initially implanted for a valid medical purpose

by qualified medical personnel. The criminal investi gator’s

request to prolong the procedure to gather a sample for law

enforcement purposes was a de minimis intrusion, which

did not shock the conscience.

REASON FOR GRANTING THE PETITION

This Case Presents a New and Important

Question in the Area of Intrusive Body

Searches and Seizures.

This Court has decided only four search and seizure

cases involving the involuntary removal of evidence from

within the human body. See Winston v. Lee, 470 U.S. 753

(1985)(compelled surgical removal of a bullet); Schmerber

v. California, 384 U.S. 757 (1966)involuntary blood

extraction by hypodermic needle); Breithaupt v. Abram,

352 U.S. 432 (1957)(same); Rochin v. California (forced

regurgitation to recover contraband). Two analogous cases

have addressed body searches and seizures in special

contexts. See United States v. Montoya De Hernandez,

473 U.S. 531 (1985)(monitored bowel movement at border

to detect drug smuggling); Bell v. Wolfish, 441 U.S. 520

(1978)(prison visual body cavity search). Urinalysis has

been the subject of several recent decisions. See Vernonia

School Dist. v. Acton, No. 94-590 (June 26,

8

1995)(upholding school drug policy which authorized

random urinalysis of student athletes); Treasury Employees

v. Von Raab, 489 U.S. 656 (1989)(upholding random

urinalysis drug testing of federal customs officers who

carry arms or are involved in drug interdiction); Skinner v.

Railway Labor Executives’ Association, 489 U.S. 602

(1989)(upholding suspicionless urinalysis drug testing of

railroad personnel involved in train accidents). However,

this Court has never decided a case involving a forced

collection of urine by catheter.

This is an important issue in military justice.

Military Rule of Evidence 312 permits the forcible

extraction of body fluids under certain circumstances,

including: (1) by search warrant or authorization, (2)

without search warrant or authorization when it is clear

that evidence of crime will be found and delay could result

in the destruction of the evidence, and (3) for valid

medical purposes necessary to preserve the health of a

servicemember. See Mil.R.Evid. 312(d), (f). Involuntary

extractions of body fluids must be done in a reasonable

fashion by a _ person with appropriate medical

qualifications. Miul.R. Evid. 312(d), (g).

At issue in this case is whether an involuntary

extraction of urine by catheter, initiated for a valid medical

purpose under Mil.R.Evid. 312(f) and prolonged at the

request of law enforcement personnel pursuant to

Mil.R.Evid. 312(d), may nonetheless be unconstitutional.

Before promulgation of the Military Rules of Evidence in

1980, military law prohibited the forcible extraction of

urine by catheter from a _ conscious, protesting

servicemember. See United States v. Speight, 5

U.S.C.M.A. 668, 18 C.M.R. 292 (C.M.A. 1955); United

States v. Jones, 5 U.S.C.M.A. 537, 18 C.M.R. 161 (C.M.A.

9

1955); United States v. Williamson, 4 U.S.C.M.A. 320, 15

C.M.R. 320 (C.M.A. 1954). This prohibition was based in

part on Rochin. See Williamson, 4 U.S.C.M.A. at 333-34,

15 C.M.R. at 333-34 (Quinn, C.J., dissenting); see also

Jones, 5 U.S.C.M.A. at 539, 18 C.M.R. at 163 ("For all

practical purposes [Judge Quinn’s] dissents have now

become the law of the Court"). Military Rule of Evidence

312 was intended to incorporate Rochin and recognize

society’s particularly sensitive attitude in this area. Manual

for Courts-Martial, United States, App. 22, M.R.E. 312(b)

at A22-18 (1984). Therefore, meeting the requirements of

Rule 312 is necessary but not sufficient to pass

constitutional muster. See S. Saltzburg et al, Military

Rules of Evidence Manual 286 (3d ed. 1991).

The Court of Appeals for the Armed Forces erred

in finding that the involuntary catheterization. of Petitioner

in this case was reasonable under the Fourth Amendment

and did not shock the conscience under Rochin. Petitioner

was taken to the Naval Hospital Emergency Room for

suspected drug abuse. Catheterization was started for a

valid medical purpose under Mil.R.Evid. 312(f). However,

it was prolonged at the request of a criminal investigator.

Once the first bottle was full of urine, the valid medical

purpose was fulfilled. Any urine collected thereafter was

not collected for a medical purpose, but solely for a law

enforcement purpose. Prolonging the involuntary

catheterization for a law enforcement purpose, even if

properly authorized under Mil.R.Evid. 312(d), was an

unreasonable method of evidence collection under the

Fourth Amendment and shocks the conscience under

Rochin.

The Fourth Amendment protects personal privacy

and dignity against unwarranted intrusion by the State.

10

Schmerber, 384 U.S. at 767. The Amendment’s "proper

function is to constrain, not against all intrusions as such,

but against intrusions which are not justified in the

circumstances, or which are made in an improper manner."

Id. at 768. The ultimate measure of the constitutionality of

a governmental search is "reasonableness." See Vernonia

School Dist., slip op. at 11. Where there was no clear

practice, either approving or disapproving the type of

search at issue, at the time the constitutional provision was

enacted, whether a particular search meets the

reasonableness standard is judged by balancing its intrusion

on the individual’s Fourth Amendment interests against its

promotion of legitimate governmental interests. /d. at 11-

ie

In Winston v. Lee, this Court applied the Schmerber

balancing test to evaluate the reasonableness of a surgical

intrusion beneath the skin to extract evidence of a crime.

470 U.S. at 760-66. The test balances the individual’s

interest in privacy and security against society’s interests

in conducting the procedure. /d. at 760. Relevant

questions include: Is there a search warrant? To what

extent will the procedure threaten the safety or health of

the individual? What is the extent of the intrusion upon

the individual’s dignity, privacy and bodily integrity?

What is the community’s interest in fairly and accurately

determining guilt or innocence?

Application of the Schmerber balancing test to this

case, shows that this urinalysis by forced catheterization

was an unreasonable search and seizure. The initial

intrusion and collection of the first urine sample was for a

valid medical purpose, and thus did not require a search

warrant or authorization. See Mil.R.Evid. 312(f). It is

unclear from the record who authorized Senior Chief

11

Burton to get the second urine sample from Petitioner.

Thus the Government did not establish that collection of

the second urine sample was properly authorized under

Mil.R.Evid. 312(d). Even if collection of the second urine

sample was properly authorized, forcible collection by

catheter was not authorized. In the Navy, urine collection

compelled by command search authorization is normally

done by natural evacuation. Forced catheterization

threatened Petitioner's physical and mental health.

Catheterization involves more physical discomfort than a

blood test, there is a slight risk of urinary tract infection,

and there is a psychological impact on the male

subconscious fear of castration and unconscious fear of

infection. Williamson, 4 U.S.C.M.A. at 329, 15 C.M.R. at

329 (Brosman, J. concurring). The effect on Petitioner’s

privacy, dignity, and bodily integrity was traumatic. The

most private part of his body was invaded in a degrading

public spectacle. The community interest in fairly and

accurately determining guilt or innocence by forced

catheterization is insignificant in this case. Forced

catheterization was not necessary to obtain a sample of

Petitioner’s urine. The Government could have introduced

the diagnostic test results from the hospital laboratory. It

could have waited until Petitioner was capable of natural

urination. These alternatives would have been no less

effective in the quantity or quality of evidence gathered

and would have been much less intrusive.

The forceful use of a catheter to obtain urine is a

gross personal indignity. See Yanez v. Romero, 619 F.2d

851, 855 (10th Cir. 1980). Its use as a method of evidence

collection offends civilized notions of common decency,

faimess and justice. As stated by Chief Judge Quinn in his

dissent in Williamson:

12

In the Rochin case a stomach pump was

used instead of a catheter. If anything, it

seems to me that of the two, the use of the

catheter would be the more reprehensible.

Such an invasion of the inherent right of

privacy of every human being is prohibited

not only by the Fifth Amendment to the

Constitution of the United States and by the

provisions of the Uniform Code of Military

Justice, but by natural and divine law as

well. The precepts of natural law and the

law of nature which long preceded the

adoption of the Bill of Rights revolt at the

practice approved by the majority in this

case.

* * * * * *

The entire genius of our American

institutions, the guarantees of the Bill of

Rights, the protections of the Uniform Code

of Military Justice, all combine to establish

the truth of the aphorism "that a man’s home

is his castle." A fortiori then, these

inalienable rights, which are implicit in the

Law of Nature, and of Nature’s God,

demand that the sanctity of the human body,

made in the image and likeness of God --

the temple of his immortal soul -- be and

remain forever sacred and inviolate.

4 U.S.C.M.A. at 334-35, 15 C.MLR. at 334-35.

"In our culture the excretory functions are shielded

by more or less absolute privacy." See Vernonia School

13

Dist., slip op. at 47 (O’Connor, J., dissenting), quoting

Fried, Privacy, 77 Yale L. J. 475, 487 (1968). Hence,

state-compelled, state-monitored collection and testing of

urine, even when the urine is evacuated naturally, is

particularly destructive of privacy and offensive to personal

dignity. See Vernonia School Dist., slip op. at 46-47

(O’Connor, J., dissenting). Forced catheterization was an

unacceptable method of evidence collection in this case.

Petitioner could have produced urine through natural

evacuation given time and water. No evidence would have

been lost, and Petitioner’s dignity would have been

preserved. Instead, law enforcement authorities turned the

evidence collection process into a degrading public

spectacle. This shocks the conscience under Rochin and

thus violates the Due Process Clause of the Fifth

Amendment.

14

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

HOWARD BARRY GOODMAN

Lieutenant Commander,

Judge Advocate General’s Corps

U. S. Navy

Navy-Marine Corps Appellate

Defense Division

Washington Navy Yard, Bldg. 111

Washington, DC 20374-1111

(202) 433-4161

Counsel for Petitioner

September 1995

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

USCMA Dkt. No. 94-0204/NA

CMR Dkt. No. 92-00815

UNITED STATES,

APPELLEE

we 6

TERRY S. FITTEN,

APPELLANT

Argued February 14, 1995

Decided June 12, 1995

For Appellant: Lieutenant Commander Howard B.

Goodman, JAGC, USN (argued); Lieutenant James A.

Douglas, JAGC, USNR (on brief).

For Appellee: Lieutenant Andrew J. Waghorn, JAGC,

USNR (argued); Colonel J. Composto, USMC, Commander

S. A. Stallings, JAGC, USN, and Lieutenant J. M.

Kegelmeyer, JAGC, USNR (on brief); Colonel T.G. Hess,

USMC

Opinion of the Court

CRAWFORD, Judge:

1. Pursuant to his pleas, appellant was found guilty of

absence without leave, and pursuant to his conditional

(la)

2a

pleas, he was found guilty of wrongful use of cocaine and

wrongful use of marijuana, all in violation of Articles 86

and 112a, Uniform Code of Military Justice, 10 USC §§

886 and 912a, respectively. The convening authority

approved the sentence of bad-conduct discharge, 45 days’

confinement, and reduction to the lowest enlisted grade.

The Court of Military Review' affirmed the findings and

sentence. 39 M.J. 659 (1993). We granted review of the

following issue:

WHETHER PROTRACTED

CATHERIZATION, CONDUCTED OVER

THE PROTESTS OF THE

SERVICEMEMBER AND SOLELY FOR

THE PURPOSE OF GATHERING

EVIDENCE OF MISCONDUCT,

INFRINGES ON AN ACCUSED’S

CONSTITUTIONAL RIGHT AGAINST

UNREASONABLE SEARCH AND

SEIZURE.

2. We hold that there was no vidlation of appellant’s

rights under the Fourth Amendment, the Due Process

Clause of the Fifth Amendment, or the Military Rules of

Evidence.

' See 41 M.J. 213, 229 n. * (1994).

> The second issue concerning the independence of the intermediate

appellate court judges was resolved against appellant in United States v.

Mitchell, 39 M.J. 131 (CMA 1994), cert. denied, _. U-S. ___, 130 L.

Ed. 2d 131, 115 S. Ct. 200 (1994).

3a

FACTS

3. On December 16, 1991, appellant was admitted to the

Balboa Naval Hospital, San Diego, California. The

attending physician, Dr. Dirk W. Woods, and the nurse,

Ms. Margaret Broadwell, who examined appellant upon his

arrival, testified that he was loud, disoriented, and

combative. Dr. Woods quickly ordered appellant placed in

a limited restraint to immobilize his neck and back because

of a suspected physical trauma. He then ordered a CAT

scan to detect physical injuries and a metabolic screen

testing for drugs or alcohol in the blood. These tests are

performed to ensure there is no life-threatening trauma or

injury. Appellant was placed in a rigid brace called a

Philadelphia collar and placed on a spine board to avoid

any neck or spinal column injuries. He was also secured in

a four-point leather restraining device to prevent him from

getting off the gurney. Because appellant was either unable

or unwilling to provide a urine sample, Dr. Woods

instructed Ms. Broadwell to obtain a urine sample by

catheter. This procedure was ordered only after the

emergency room personnel were unable to obtain a sample

for over 1 1/2 hours after appellant’s arrival.

4. At the same time the order to obtain a urine sample

was made at the hospital, Senior Chief Rodney A. Burton,

the command’s urinalysis coordinator, was sent to the

hospital to obtain a specimen of appellant’s urine.

Appellant refused to give a urine sample to Senior Chief

Burton. Ms. Broadwell told Senior Chief Burton that

appellant said he had a "drug weekend." Senior Chief

Burton then left the emergency room and called Lieutenant

Commander Clopton, the Command Staff Judge Advocate,

to inform him of this statement and sought to get a

commander’s authorization to obtain a urine sample.

7

HT i

4a

5. Before the catheterization process started, the station

commander authorized a search based on probable cause.

The record is silent as to whether this search authorization

directed catheterization or envisioned an order to appellant

to give a urine sample. In any event, Ms. Broadwell

continued the process of catheterization because "it was

important that we find out what was wrong" with

appellant. She testified that this authorization "played no

role" in her actions to catheterize appellant. She then

obtained one bottle of appellant’s urine for the hospital

and, based upon Senior Chief Burton’s request, obtained a

second bottle for the unit. It is this second bottle that

produced the evidence resulting in preferral of charges

against appellant.

6. The judge found “that Dr. Woods ordered, and Nurse

Broadwell performed, a catheterization of Petty Officer

Fitten solely for authorized medical purposes."

DISCUSSION

7. The Fourth Amendment protects appellant against

unreasonable searches and seizures. Appellant is also

protected therefrom by the Due Process Clause of the Fifth

Amendment and the Military Rules of Evidence in the

Manual for Courts-Martial, United States, 1984.

8. Appellant claims that the judge erred by violating his

rights under the Due Process Clause, citing Rochin v.

California, 342 U.S. 165 (1952); Mil.R.Evid. 312(d) and

(f). In this instance the involuntary catheterization was

primarily for medical reasons. Two samples were drawn,

one for the hospital and one for the command investigator.

Sa

9. The Fourth Amendment provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall noi

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or

things to be seized.

10. The right includes protection of the "dignitary

interests in personal privacy and bodily integrity.". Winston

v. Lee, 470 U.S. 753, 761 (1985). There are two clauses to

the Fourth Amendment that secure the protection of these

privacy interests: first the reasonableness clause, and

second, the warrant clause. As the Supreme Court and this

Court over a period of years have indicated, there is a

preference for warranted searches absent exigent

circumstances. See, e.g., Katz v. United States, 389 U.S.

347 (1967). In this case we shall examine this warrantless

search in light of the reasonableness clause together with

the Fifth Amendment Due Process Clause.

11. The seminal case addressing removal of evidence

from the human body is Rochin v. California, 342 U.S.

165 (1952). The Court held in Rochin that evidence

obtained in violation of the Due Process Clause of the

Fourteenth Amendment was not admissible in evidence.

The police officers entered Rochin’s home and broke into

his bedroom where they observed him swallowing two

capsules. In attempting to obtain those two capsules, the

police grabbed his throat and stuck a finger in his mouth.

(225 P.2d 1-2 (Cal. App. 1950)). When that was

unsuccessful, they handcuffed him and took him to a

6a

hospital where an emetic solution was forced into his

stomach through a tube, causing him to regurgitate the

capsules. Jd. at 166. In holding there was a violation of the

Due Process Clause, the Court concluded:

The faculties of the Due Process Clause may

be indefinite and vague, but the mode of

their ascertainment is not self-willed. In each

case “due process of law" requires an

evaluation based on a disinterested inquiry

pursued in the spirit of science, on a

balanced order of facts exactly and fairly

stated, on the detached consideration of

conflicting claims, on a judgment not ad hoc

and episodic but duly mindful of reconciling

the needs both of continuity and of change

in a progressive society.

Applying these general considerations to the

circumstances of the present case, we are

compelled to conclude that the proceedings

by which this conviction was obtained do

more than offend some fastidious

squeamishness or private sentimentalism

about combatting crime too energetically.

This is conduct that shocks the conscience.

Illegally breaking into the privacy of the

petitioner, the struggle to open his mouth

and remove what was there, the forcible

extraction of his stomach’s contents--this

course of proceeding by agents of

government to obtain evidence is bound to

offend even hardened sensibilities. They are

methods too close to the rack and the screw

to permit of constitutional differentiation.

Ta

Id. at 172 (citation omitted).

12. In Schmerber v. California, 384 U.S. 757 (1966), the

Court upheld the taking of a blood sample from an arrested

defendant at a hospital to determine whether he was

operating an automobile under the influence of alcohol.

The Court examined a number of factors after concluding

that there was probable cause for arrest Id. at 768. First,

the Court emphasized that there was a "clear indication"

that evidence of intoxication would be "found." Id. at 770.

Second, the Court noted that "a reasonable" test was

chosen which was highly reliable and "virtually" without

"risk, trauma, or pain." Finally, the Court recognized that

the test was performed “by a physician in a hospital

environment according to accepted medical practices." Jd.

at 771. The Court did acknowledge that "serious questions

. would arise if a search involving use of a medical

technique, even of the most rudimentary sort, were made

by other than medical personnel or in other than a medical

environment ...."_ Jd. at 771-72.’

13. In Winston v. Lee, 470 U.S. 753, the Court struck

down a warrant permitting surgery to remove a bullet that

was embedded "approximately one inch" into the "muscular

tissue" of defendant’s chest. This surgery would have

required general anesthesia. Jd. at 757. The Court noted

that, even though there was probable cause, "a search for

evidence of a crime may be unjustifiable if it endangers the

> See, e.g., United States ex rel. Guy v. McCauley, 385 F. Supp.

193, 199 (E.D. Wis. 1974)(court struck down a vaginal search of an

incarcerated female because it was not conducted by "skilled medical

technicians"). Compare Ewing v. State, 310 N.E.2d 571 (Ind. App.

1974)(upheld warrantless taking of urine sample) with People v. Williams,

557 P.2d 399 (Colo. 1976){contra).

8a

life or health of the suspect." /d at 761. The majority

pointed out that the surgery arguably posed serious medical

risks. Jd. at 766. Additionally the prosecution had

"available substantial additional evidence" that the

respondent committed the robbery. /d. at 765. Finally, the

Court noted that, even if the bullet was retrieved, there was

some question that it would provide probative evidence of

the crime. /d. at 766 n. 10.

14. In Mincey v. Arizona, 437 U.S. 385, 392 (1978), the

Court recognized that "the need to protect or preserve life

or avoid serious injury is justification for what would be

otherwise illegal absent an exigency or emergency|,]"

quoting Wayne v. United States, 318 F.2d 205, 212 (D.C.

Cir.) (opinion of Burger, J.), cert. denied, 375 U.S. 860

(1963). Courts following this rationale have indicated that

a warrantless search to prevent death or serious injury to a

suspect is permissible. Cf United States v. Maxwell, 38

M.J. 148 (CMA 1993), cert. denied, 114 S. Ct. 1056

(1994); United States v. Borchardt, 809 F.2d 1115, 1117

(Sth Cir. 1987); Harrison v. State, 860 P.2d 1280, 1283

(Alaska App. 1993); People v. Bracamonte, 15 Cal. 3d

394, 124 Cal. Rptr. 528, 540 P.2d 624 (1975); People v.

Jones, 20 Cal. App. 3d 201, 97 Cal. Rptr. 492 (1971).

15. These cases form a basis for Mil.R.Evid. 312(f),

which provides:

Intrusions for valid medical purposes.

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

servicemember. Evidence or contraband

obtained from an examination or intrusion

9a

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.

16. Here, the taking of the body fluid from appellant

was motivated by medical personnel concerned for

appellant’s health. The testing was not directed by the

command or law enforcement officials. Rather, the test was

conducted by medical personnel in a medical environment.

The test was reasonably necessary to determine if there

was life-threatening trauma or injury as a result of drugs or

alcohol in the blood. The desires of the command had no

impact on the initial intrusion and did not cause any

additional intrusion. On the contrary, the command’s

request resulted in a de minimis impact by prolonging the

flow of urine only long enough to fill a second bottle.

17. There was a valid medical purpose for the

catheterization procedure. It was performed in a hospital by

medical personnel. Any "intrusion" was de minimis and

does not shock the conscience. For these reasons we hold

that there was no violation of appellant’s rights under the

Fourth Amendment, the Due Process Clause of the Fifth

Amendment, or the Military Rules of Evidence.

The decision of the United States Navy-Marine Corps

Court of Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX, GIERKE,

and WISS concur.

10a

APPENDIX B

DEPARTMENT OF THE NAVY

OFFICE OF THE JUDGE ADVOCATE GENERAL

200 STOVAL STREET

ALEXANDRIA, VA 22332-2400

IN THE U.S. NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

BEFORE

DAVID C. LARSON EDWIN W. WELCH

R.M. MOLLISON

UNITED STATES

V.

TERRY S. FITTEN, 276-66-5673

Mess Management Specialist Third Class (E-4 ),

U.S. Navy

NMCM 92 0815 Decided October 26, 1993

Sentence adjudged 5 February 1992. Military Judge: H.B.

Smith. Review pursuant to Article 66(c), UCMJ, of

Special Court-Martial convened by Commanding Officer,

Naval Training Center, San Diego, CA 92133.

LT JAMES A. DOUGLAS, JAGC, USNR, Appellate

Defense Counsel.

LT J.M. KEGELMEYER, JAGC, USNR, Appellate

Government Counsel.

lla

WELCH, Senior Judge:

The appellant, in his first assignment of error, challenges

the propriety of using evidence obtained by his forced

catheterization at U.S. Naval Hospital, San Diego.' The

urine extracted from the appellant provided evidence of his

use of cocaine and marijuana.* Appellant’s conviction

was based on his plea of guilty to unauthorized absence

' |. THE MILITARY JUDGE ERRED IN DENYING THE

DEFENSE MOTION TO SUPPRESS EVIDENCE DERIVED FROM

THE FORCED CATHETERIZATION OF APPELLANT IN THAT THE

PROCEDURE, UNNECESSARY AND UNREASONABLY

INTRUSIVE, VIOLATED DUE PROCESS. (FOOTNOTE OMITTED.)

Il. THE COURT-MARTIAL HAD NO JURISDICTION

BECAUSE THE MILITARY JUDGE’S LACK OF A FIXED TERM OF

OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY

INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE

PROCESS CLAUSE. (CITATION OMITTED.) BECAUSE THE

ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO

EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT

TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT

WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL.

Ill. THE COURT-MARTIAL LACKED JURISDICTION

BECAUSE APPELLANT’S MILITARY JUDGE WAS DESIGNATED

IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE

CONSTITUTION. (CITATIONS AND FOOTNOTE OMITTED.)

BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT

WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL.

2

Appellant was convicted by special court-martial of violating

Articles 86 and 112a, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 886 and 912a, respectively, by unauthorized absence, and

illegally using marijuana and cocaine. The judge sentenced him to 45

days confinement, reduction to pay grade E-l, and a bad-conduct

discharge, which was approved by the convening authority.

i Ry

12a

arid his conditional plea of guilty to the wrongful use of

cocaine and marijuana. His conditional plea was entered

after the judge denied his motion to suppress the results of

tests performed on the urine obtained by catheterization.

We hold that the judge properly denied the motion to

suppress evidence. Our reasoning follows.

I. The Factual Setting

At approximately 1000, 16 December 1991, the

appellant tumed himself in at the Chaplain’s Office at

Naval Station, San Diego. He appeared to be under the

influence of an unknown substance.

At approximately 1030, he was taken to the Branch

Medical Clinic at Naval Training Center, San Diego, and

given a competence for duty examination. He was found

unfit for duty due to the use of drugs or alcohol.

At approximately 1300, he was transported to U.S.

Naval Hospital, San Diego. Dr. W, a medical officer, saw

appellant upon arrival. He observed that appellant was

intermittently obtunded (not acting normally;) in an altered

mental status -- “like . . . psychiatrically ill, intoxicated,

what ever") and combative (striking out, moving about,

and talking in a very loud tone or yelling). Because such

action might be caused by anything from metabolic

deficiencies to head injuries to drug intoxication, Dr. W’s

initial treatment included (a) a metabolic screen to test for

different chemicals in the blood, (b) a C-spine precaution

(placing appellant in a rigid brace -- a "Philadelphia collar"

-- that prevents movement of the neck, and strapping the

appellant to a spine board), (c) ordering a CAT scan of the

appellant’s brain, and (d) ordering a dangerous drug

screen. Record at 10-13.

13a

At U.S. Naval Hospital, San Diego, dangerous drug

screening tests are done using urine specimens because

blood testing is not readily available. If a patient-service

member is either unwilling or unable to provide a urine

specimen, and the patient’s condition is potentially life

threatening, the practice generally followed at the hospital

is to obtain a urine specimen by catheterization. Record at

13. Dr. W ordered such testing of the appellant because

the appellant’s behavior was potentially drug related and

symptomatic of a life threatening situation. Record at 14.

In response to questions by the trial judge, Dr. W

explained the dichotomy that exists when a patient does not

consent to providing a urine specimen and the physician

concludes that obtaining a specimen is necessary. If the

patient is a civilian, the civilian can say "No. | don’t want

you to do it." and sign out against medical advice. Not so

with an active duty military patient:

[W]e are required by our military law to perform

what we think is in their best interest medically.

There are some gray lines on it -- in that area, but

in a case like this, it’s pretty clear-cut that they

don’t have a right to sign out against medical

advice and they need to have that test done.

Record at 21.

The order to catheterize appellant was given within the

first hour after his arrival in the emergency room.

According to Dr. W, it is important to have catheterization

done quickly in situations like the appellant’s in case there

is a toxin in the patient’s body. Additionally, in his

opinion, the “standard of care" requires that information

from a dangerous drug screen be obtained within the first

14a

couple hours of the patient’s stay in the emergency room.

Tests results of urine obtained by catheterization are

normally known within 15 to 30 minutes after the

specimen is obtained from the patient. Record at 18-19.

Mrs. B, a licensed civilian nurse, who started caring for

the appellant when he arrived in the emergency room,

performed the catheterization. She had performed literally

hundreds of catheterizations, a procedure done daily in the

emergency room. On any given day, she might do 10 or

more. Nurse B’s description of the appellant’s actions in

the emergency room includes the following:

Mr. Fitten was disoriented . . . very abusive both

verbally and physically, combative, striking out, at

one point, catching me, slapping me with the

backhand across my face, hitting my jaw... [W]e

had extreme difficulty trying to get the IV lines in.

We were uncertain of what was wrong with Mr.

Fitten at this point. We weren’t sure if it was

alcohol or drugs or closed head injury, anything at

this point.

Record at 24. When appellant continued his combative

conduct, Nurse B ordered that soft restraints be applied by

corpsmen to keep the appellant from pulling IV lines out.

Appellant attempted to pull the IV lines out and ripped off

the soft restraints. When Nurse B’s next efforts to calm

the appellant failed, she ordered the corpsmen to apply

"four point" leather restraints for the appellant’s safety and

the safety of hospital personnel; such restraints are

frequently used in emergency rooms to control abusive

patients. At the time, Nurse B was assisted by three

corpsmen; several security personnel were also present.

lSa

After the appellant arrived at the emergency room,

Nurse B asked him several times if he would provide a

urine specimen. The appellant was either unable or

unwilling to provide the requested specimen. Thus, after

about an hour and one half of attempting to obtain a

voluntarily provided specimen from the appellant, Nurse B

catheterized the appellant based on a doctor’s order.

Record at 25. She began the process by swabbing the

appellant’s penis three times with betadine, an antiseptic,

and explaining the process to the appellant. At that time,

appellant had calmed down somewhat; he was talking to

Nurse B; he was relaxed a bit. Nurse B testified that the

appellant never made any verbal protest to her concerning

the procedure and that he was cooperative. Record at

25-28. Parenthetically, we add (a) that Nurse B candidly

testified that "When you have somebody’s penis in your

hand, they’re not going to fight a whole bunch," and (b)

that the appellant later testified that he had tears in his eyes

during the process.

Nurse B inserted the appropriate tubing into appellant’s

penis and withdrew urine from his bladder. The process

took "just a couple of minutes." Record at 32. Nurse B

collected two containers of urine while the tubing remained

inserted. There was "no time difference between" the

collection of the "bottle A" specimen and the "bottle B"

specimen because there was a continual drip of urine

coming out of the tubing. Record at 27.

While Nurse B was conducting the catheterization,

Senior Chief C was nearby. He was the appellant’s

command’s chief investigator, as weli as the urinalysis

coordinator. He had been sent to the hospital at about

1300 to attempt to obtain, with the appellant’s consent, a

specimen of the appellant’s urine. The appellant had

la

refused to voluntarily contribute a specimen. After the

appellant refused to voluntarily comply with Senior Chief

C’s request, Senior Chief C was advised by Nurse B that

the appellant had mentioned to her that he had a "drug

weekend." Record at 38. Senior Chief C conveyed this

information to the appellant’s command’s staff judge

advocate by telephone. Soon thereafter, the staff judge

advocate called back to Senior Chief C and told him that

appellant’s commanding officer had authorized a probable

cause search of the appellant’s urine. Record at 38-39.

See also App. Ex. I and II.

The commanding officer’s authorization to search based

upon probable cause was conveyed to Senior Chief C

moments before the catheterization was started. Nothing in

the record indicates the authorization directed a

catheterization, leaving open the inference that the

commanding officer’s jintent could have been that the

appellant be ordered to produce a specimen and that the

Senior Chief standby with bottle in hand. Nevertheless,

Senior Chief C told Nurse B that he had permission to get

a sample of the appellant’s urine. Record at 40. While

Senior Chief C was talking to the staff judge advocate,

Nurse B continued the process of catheterization because,

in her words, "[it] was important that we find out what was

wrong with Mr. Fitten so I continued." Record at 27. The

order from appellant's command "played no role" in Nurse

B’s decision to catheterize him -- she was going to do it

with or without approval of the appellant’s command.

Record at 34.

After obtaining urine for the dangerous drug screening

test in “bottle A", Nurse B asked Senior Chief C for his

bottle, "bottle B." She then let some of appellant’s urine

drip from the tubing into bottle B. Thereafter, Nurse B

17a

looked at bottle B and said "I’m not sure if this is enough,"

and poured some of the urine from bottle A into bottle B

while commenting "[t]his is more than enough for us and

this should be enough for your sample." Record at 38.

Urinalysis testing of the content of bottle B later produced

the evidence that led to the preferral of charges against the

appellant.

II. Prosecution Based on Evidence Obtained From Forced

Catheterization

The appellant contends that the trial judge erred when he

denied his motion to suppress evidence derived from

appellant’s forced catheterization. According to the

appellant, obtaining evidence in this manner was

unnecessary and unreasonably intrusive, and in violation of

due process of law. He cites as dispositive Rochin v.

California, 342 U.S. 165 (1952), discussed below, and

Mil.R.Evid. 312(d), which states in part that "{iJnvoluntary

extraction of body fluids under this rule must be done in

a reasonable fashion by a person with appropriate medical

qualifications."?

The Government responds that the appellant’s urine was

properly obtained for a valid medical purpose, as

authorized by Mil.R.Evid. 312(f), which states:

Intrusions for valid medical purposes.

Nothing in this rule shall be deemed to

interfere with the lawful authority of the

armed forces to take whatever action may be

* At trial, the defense counsel advised the judge that the issue

presented was “very narrow. We’re not arguing that there was not a

proper search authorization." Record at 7.

a a

18a

necessary to preserve the health of a

servicemember. 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.

On 21 May 1954, a divided United States Court of

Military Appeals discussed at length the use of evidence

obtained as a result of catheterization of a service member.

See United States v. Williamson, 4 U.S.C.M.A. 320, 15

C.M.R. 320 (1954); United States v. Booker, 4 U.S.C.M.A.

335, 15 C.M.R. 335 (1954). In Williamson, the Court held

that the results of urinalysis of a specimen obtained from

an unconscious service member could be used in evidence

against him without violating his right against

self-incrimination. In Booker, the Court held that the

results of catheterization of a service member with his

consent could be used in evidence against him. Obviously,

neither case is on “all fours" with appellant’s case.

However, in Williamson each judge discussed Rochin

(holding that use of evidence obtained by pumping the

accused’s stomach was a violation of due process of law

because it "shocks the conscience"), with Judge Brosman

stating:

If the case before us involved real evidence

obtained from an accused person by use of

a catheter and over his protest, I should

similarly conclude that fundamental

standards of decency in law enforcement has

been infringed, and that a conviction

predicated in any part on such evidence

violated the concept of “military due

19a

process.”

Williamson 4 U.S.C.M.A. at 329, 15 C.M.R. 320.

If the appellant had presented us with a pure case of a

commanding officer directing a probable cause search by

catheterization of an obviously healthy service member, we

would probably quote the words of Judge Brosman and

rule in appellant’s favor. But that is not the case before

us. The testimony of Dr. W and Nurse B convinces us

that appellant was subjected to involuntary catheterization

solely on the basis of medical necessity (the appellant

displayed signs indicative of drug use and the emergency

room physician needed to determine the nature of the

substance in the appellant’s body to assure that appellant

did not die).

We fine-tune the issue raised by the appellant by noting

that urine from appellant’s bladder eventually went in two

directions: "bottle A" to the hospital technicians and "bottle

B" to the drug screening laboratory to build a case against

the appellant. When faced with a similar situation, albeit

not involving catheterization, the U.S. Air Force Court of

Military Review held "that once the government lawfully

possesses a urine sample it may conduct any laboratory test

for drugs it wishes on the specimen." United States v.

Jenkins, 24 M.J. 846, 848 (A.F.C.M.R. 1987), citing

United States v. Nand, 17 M.J. 936, 937 (A.F.C.MLR.

1984), which states "[t]he fact that a portion of the urine

sample was used for another purpose is irrelevant since the

sample was validly taken." See also United States v.

Cannon, 29 M.J. 549, 554 (A.F.C.M.R. 1989).

Although we agree with the principles stated in the

20a

above cited cases, none of them squarely address questions

raised by the logical observation that catheterization may

be prolonged for some brief period of time if a "bottle B"

is partially filled for forensic testing. Frankly, our

conscience is not "shocked" by such conduct. We believe

that concerns expressed in Rochin and Williamson are

allayed when forced catheterization is initiated by

appropriately qualified service medical personnel acting to

save the life of a service member. Under these

circumstances, we find no support in law or reason for a

per se rule excluding evidence captured in a "bottle B,"

either from the direct flow from the end of the tubing used

or from decantation. Rather, in such cases, we will

examine all the circumstances to determine the

reasonableness of the action taken and the legal basis for

admission of evidence of urinalysis testing.

In this case -- reminiscent of a proverbial law school

examination question, based in part on Nurse B’s pouring

of urine from "bottle A" to "boitle B" -- we find two

alternative grounds for upholding the judge’s ruling. First,

we find that the urine in "bottle B" contained an

undetermined, but significant, amount of appellant’s urine

that had been properly captured for a valid medical reason

in “bottle A." Thus, we conclude that the urine obtained

was in essence all one sample extracted during an intrusion

conducted for a valid medical purpose; ergo, the evidence

was admissible under Mil.R.Evid. 312(f) and the principles

in Jenkins, Nand, and Cannon. Alternatively, we find that

the appellant’s urine was obtained in a reasonable fashion

-- reasonable because catheterization was required as part

of an effort to preserve his life -- by a person with

appropriate medical qualification, and pursuant to a proper

command authorized probable cause search per Mil.R.Evid.

315; ergo, the evidence was admissible under Mil.R.Evid.

2la

312(d) and need not have been excluded under the

principles of Rochin. Thus, we conclude that the first

assignment of error is without merit.

III. Other Assignments of Error

The remaining assignments of error also lack merit.

United States v. Weiss, 36 M.J. 224 (C.M.A. 1992), cert.

granted, _- US. ___, 113 S.Ct. 2412 (1993); United

States v. Graf, 35 M.J. 450 (C.M.A. 1992).

The findings and sentence, as approved on review

below, are affirmed.

LARSON, Chief Judge (concurring):

I concur that the results of the urinalysis conducted in

this case were admissible under Mil.R.Evid. 312(f). I

write’ separately only to address the principal argument

advanced by Senior Judge Mollison in dissent. His

position draws a bright line between urine drawn for

medical purposes and that drawn for purposes of

prosecution. He finds that this latter urine is not covered

by Mil.R.Evid. 312(f) and that there is no other basis for

admissibility adequately developed on the record.

I do agree that a line can be drawn to separate those

bodily fluid extractions which violate the Fourth

Amendment and those that do not. However, the

distinction should be between an intrusion into the body

for medical purposes and one for purposes of prosecution,

not between the. uses of the urine obtained as the result of

a lawful intrusion. Once the intrusion is made for a valid

medical purpose, I read Mil.R.Evid. 312(f) to permit any

22a [

use to be made of the evidence (i.¢., urine) obtained

thereby. In this case, the intrusion was made and urine :

was extracted for a valid medical purpose. The brief

collection of an additional amount of urine immediately

following the medical collection did not, to any appreciable

degree, constitute a separate search or seizure for Fourth

Amendment purposes.

Furthermore, even if the extraction of additional urine

could be considered a separate "seizure" under the Fourth

Amendment, in view of the facts that it required no further

intrusion into the body of the appellant and that the

catheter remained inserted only for a very brief additional

period of time, I find the additional invasion of the

appellant’s privacy interests to be minimal and the seizure

to be reasonable and therefore, not in violation of the

appellant’s rights under the Fourth Amendment. In fact, |

see little difference between this situation and one where

urine extracted for medical testing is thereafter turned over

to law enforcement officials as criminal evidence. United

States v. Miller, 15 U.S.C.M.A. 320, 35 C.M.R. 292

(1965).

Drawing a distinction in terms of the purpose of the

intrusion rather than the purpose of the extracted urine

would also be consistent with the case law cited in the

' A different result may be obtained if the catheter were left

inserted for a significant period of time as, for example, where medical

personnel have finished their seizure but agree to wait for guidance from

law enforcement officials. At some point in time, the medical purpose

for the intrusion would lapse and the seizure of additional urine as

criminal evidence would no longer be covered by Mil.R.Evid. 312(f). In

this case, we need not determine where that point in time is because the

additional extraction of the appellant’s urine was apparently accomplished

immediately with no interruption in the flow through the catheter.

ee re Senne ee

23a

dissent. In every case cited by Senior Judge Mollison in

support of his position, the original intrusion was made

expressly for law enforcement purposes. See, e.g., United

States v. Jones, 5 U.S.C.M.A. 537, 18 C.M.R. 161 (1955).

Only in that situation is it necessary, for legal analysis

purposes, to determine another basis for admission (e.g.,

command authorization based on probable cause) and to

consider the "shock the conscience" circumstances typified

in Rochin v. California, 342 U.S. 165 (1952). We do not

have that situation here.

MOLLISON, Senior Judge (dissenting):

The principal issue in this appeal from a special

court-martial conviction for wrongful use of controlled

substances is whether the military judge erred in denying

the appellant’s motion to suppress the results of a

urinalysis of a specimen extracted from the appellant by

means of involuntary catheterization. I am of the opinion

the military judge erred. I would set aside the findings of

guilty and sentence and authorize a rehearing.

I.

Consistent with his pleas of guilty, the appellant was

found guilty of one specification alleging a 2 1/2-hour

unauthorized absence and two specifications alleging

wrongful use of controlled substances, in violation of

Articles 86 and 112a, respectively, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 886, 912a. The

pleas of guilty to the drug offenses were entered

conditionally after the appellant unsuccessfully moved to

suppress the results of a urinalysis upon which those

specifications were apparently based. Rule for

Courts-Martial (R.C.M.) 910(a)(2), Manual for

24a

Courts-Martial, United States, 1984. A military judge

sitting alone sentenced the appellant to confinement for 45

days, reduction to pay grade E-1, and a bad-conduct

discharge. The convening authority approved the sentence

without modification. UCMJ art. 60, 10 U.S.C. § 860. The

appellant’s case is now before this Court for review in

accordance with Article 66, UCMJ, 10 U.S.C. § 866.

This Court may only affirm such findings of guilty and

the sentence or such part or amount of the sentence as it

finds correct in law and fact and determines, on the basis

of the entire record, should be approved. UCM] art. 66(c),

10 U.S.C. § 866(c). This Court may not set aside a

finding of guilty or the sentence on the basis of an error of

law unless the error is materially prejudicial to the

substantial rights of the appellant. UCMJ art. 59(a), 10

U.S.C. § 959(a).

The appellant assigned the following error in the conduct

of his court-martial:

THE MILITARY JUDGE ERRED IN

DENYING THE DEFENSE MOTION TO

SUPPRESS EVIDENCE FROM _ THE

FORCED CATHETERIZATION OF

APPELLANT IN THAT THE

PROCEDURE, UNNECESSARY AND

UNREASONABLY INTRUSIVE,

VIOLATED DUE PROCESS [citing Rochin

v. California, 342 U.S. 165 (1952);

Mil.R.Evid. 312(d)].

Hl, 43,

Prior to entry of pleas, the appellant moved to suppress

25a

a urinalysis on a specimen extracted by catheterization

from him at the Balboa Naval Hospital in San Diego.

R.C.M. 905(a)(3); Mil.R.Evid. 311(d). At a pre-trial

session, conducted pursuant to Article 39(a), UCMJ, 10

U.S.C. § 839(a), the parties called four witnesses and

entered into a stipulation of fact. In sum, the evidence

shows that urine was extracted from the appellant over his

objection by means of a catheter inserted in his penis by a

hospital nurse. Two specimens were drawn. One was

retained by the hospital for testing, while a second

specimen was immediately surrendered to a command

investigator who was present during the catheterization.

The specimen provided to the base investigator was

eventually transported to a Navy drug laboratory for

testing. Although the record is not entirely clear on this

point, it appears that this second specimen tested positive

for the presence of the metabolites of cocaine and

marijuana, and it is on the basis of this test that the

appellant was prosecuted. A more detailed statement of

the evidence follows.

On Monday morning, 16 December 1991, the appellant

turned himself in to the Chaplain’s Office at Naval Station,

San Diego. The appellant appeared to be under the

influence of an unknown substance. Shortly thereafter, he

was transported to the Branch Medical Clinic at Naval

Training Center, San Diego where he was administered a

competency for duty examination and was found unfit for

duty due to the use of drugs or alcohol.’ At 1300 the

' The evidence derived from a mandatory urinalysis as a result of

a competency for duty determination is admissible only for the purposes

of impeachment and rebuttal. United States v. Daskam, 31 M.J. 77

(C.M.A. 1990). See also United States v. Ouellette, 16 MJ. 911

(N.M.C.M.R. 1983).

26a

same day, the appellant was transported to the Balboa

Naval Hospital for further evaluation and treatment.

Stipulation of Fact, Appellate Exhibit III.

Lieutenant Woods, a medical officer on duty in the

emergency room for a portion of the time the appellant

was present there, testified that the appellant was noted

upon presentation to be intermittently obtunded (not

responsive to questioning or gentle - stimuli)’ and

combative. The initial impression of the staff was that the

appellant had an “altered mental status." A protocol is

followed when a patient presents this status. Several

causes for it must be considered, ie, metabolic

deficiencies, head injuries, drug intoxication. A work-up

is embarked upon to ensure the causes are not life- or

limb-threatening. Record at 12. Blood tests, a CAT-scan,

immobilization, and a "dangerous drug screen" are parts of

this protocol. According to Dr. Woods, all of these

measures were ordered in the appellant’s case by him.

Record at 12-13.

Dr. Woods further explained that the “dangerous drug

screen" is accomplished by urinalysis at this naval hospital.

Blood testing is not available there. If the patient is

unwilling to provide a urine specimen, if the patient is a

military member, and if the patient’s behavior is potentially

life-threatening, a "catheterized urine specimen" is

generally obtained. Record at 13, 21. A patient who is

intermittently obtunded and combative is considered to be

in a life-threatening condition. Record at 14.

The “catheterized urine specimen" is described by Dr.

2

Obtund: To dull or blunt, especially sensation or pain. Webster's

New World Stedman’s Concise Medical Dictionary 519 (1987).

27a

Woods as one that:

basically entails a corpsman, nurse or doctor,

someone who is trained, will, you know, in

a male, clean the tip of the penis off with a

sterile solution called betadine and holding

the penis with one hand will insert a tube

that is slightly, maybe half the size of my

little finger through the penis into the

bladder. Urine returns at that point. As

soon as the urine sample is obtained in a

case like this, the catheter is generally

withdrawn. It can also be inserted -- a

balloon inflated. It can be left in other

cases.

Record at 14. Catheterization is performed three to 12

times a day in the hospital. /d.

Dr. Woods also described the pain and risks associated

with this procedure:

| think most people that are not obtunded

would describe it as uncomfortable. We do

many things that are much more

uncomfortable. I think there is a great deal

of psychological overlay in a case like this

with catheterization where people don’t

generally like having things stuck in their

penis and the little bit of discomfort, I think,

probably is magnified by many people with

psychological overlay.

** *

28a

Somebody who’s truly obtunded and not

playing at being obtunded, which sometimes

we have difficulty assessing, then they

wouldn’t feel anything. If they were truly

obtunded, part of the definition is that they

don’t respond to physical stimuli. Okay. If

it’s somebody who’s just being difficult then

they might -- then they would perhaps feel

it the same amount that other people would

and they would describe it as uncomfortable.

** *

The studies indicate that if you leave [the

catheter] in for any length of time that the

risk of infection is somewhere around one

percent. The risk of doing what we call a

quick catheter, or an_ in-and-out

catheterization is somewhere below that, but

I can’t give you an exact amount.

Record at 15.

The catheterization of the appellant was ordered some

time within the first hour of his Stay at the hospital,

however, Dr. Woods was not present when the

catheterization was accomplished. Record at 16, 18-19.

The record is not clear as to whether Dr. Woods personally

ordered the catheterization. Record at 19. Dr. Woods also

testified that he was not made aware that the appellant did

not want to be catheterized, however, it would have made

no difference and the hospital staff would have proceeded

inasmuch as they still needed the information and the

appellant “did not have the right to sign out against

29a

medical advice." Record at 21.

The attending nurse, Ms. Margaret Broadwell, also

testified. She stated the appellant was disoriented as to

time and place. He was "very abusive both verbally and

physically, combative, striking out." Record at 24. At one

point he backhanded her across the face and hit her jaw.

Id. She explained the staff was not sure whether the

appellant was on alcohol or drugs or suffered from a

closed head injury. A corpsman tried to start an "IV", but

had extreme difficulty getting the lines in. The nurse

talked to the appellant and he calmed down sufficiently for

the insertion of the IV. The nurse returned later and again

found the appellant "getting very, very combative." When

the appellant attempted to pull out the IV lines, he was

placed in soft restraints. When he ripped off the soft

restraints and again started swinging and throwing his arms

about trying to get off of the gurney, four-point leather

restraints were applied. The appellant was also restrained

by three corpsman and base security personnel. Record at

24-25.

The nurse testified that she had been instructed to obtain

urine from the appellant from the time that he arrived.

The nurse asked him several times whether he would

provide a specimen, however, he "was either unable or

wouldn’t" provide a specimen. Record at 25. Between an

hour and an hour and one-half after the appellant had been

there, either the medical officer or an attending intern (the

nurse cannot recall which) ordered a catheterized urine

sample for a dangerous drug screen. Record at 25, 29.

Though she customarily had a male corpsman perform the

catheterization on male patients, the nurse elected to

perform this catheterization: on the appellant, herself,

explaining the corpsmen were "shook up over the ordeal"

30a

and the appellant seemed to respond to her voice better

than he did to the corpsmen. Record at 30-31, 33. The

nurse further testified that the appellant had calmed down

considerably prior to the time the catheterization was

performed. He "wasn’t swearing quite as much,” and he

was a little more oriented. Record at 26. When the actual

catheterization was performed, the appellant was "very,

very calm," and, as the nurse explains, "[W]hen ycu have

somebody’s penis in your hand, they’re not going to fight

you a whole bunch. . ." Record at 28.

Prior to the catheterization of the appellant by the nurse,

the nurse informed one of the chief petty officers

accompanying the appellant that she was going to obtain a

urine specimen "for my dangerous drug screen for medical

purposes." Record at 27. The chief petty officer called

someone and then informed her that he had authorization

and asked her for a specimen. Record at 27, 30. The

nurse then catheterized the appellant. She got a return, but

the appellant’s bladder was very dry. Nonetheless, the

nurse collected two containers out of the same

catheterization while the tube remained in the appellant’s

penis. The nurse sent one specimen io the hospital "stat

lab" where a drug screen was performed. Record at 27.

(The results of this urinalysis are not in the record.)

According to the nurse, she then handed a specimen from

the same catheter to the chief that was witnessing the

catheterization. Record at 27. The nurse "only had a

small enough sample to barely get enough for [the

hospital] and the investigator." Record at 28. The nurse

further testified that although she was informed the chief

had some type of authorization, that fact played no role in

her decision to catheterize the appellant. She was

catheterizing the appellant pursuant to doctor’s orders and

would have done so with or without the chief’s getting a

3la

specimen. Record at 31, 34. According to the nurse, "it

took just a matter of minutes" to acquire the urine

specimens through the catheter. Record at 32. Finally, the

nurse testified that the appellant was not sedated or

administered any "pain killers." Therefore, she surmises

that he would have felt the "limited pain involved with the

catheterization." Record at 23-33.

Next Boatswain’s Mate Senior Chief Burton testified.

He was the Naval Training Command’s chief investigator

and urinalysis coordinator. He had been informed by a

legalman that the legal officer, Lieutenant Commander

Clopton, wanted the senior chief to try to get a specimen

from the appellant. Senior Chief Burton went to the

hospital for this purpose. He found the appellant in a bed

nodding in and out of sleep. The appellant responded to

the senior chief’s request for a urine specimen by saying

that he wanted to leave the hospital and by pulling on his

IV. Record at 36. Once restrained, the appellant

responded in the negative to a second request for a urine

specimen. Record at 37. As the senior chief was walking

out of the area to telephone the legal officer, the nurse

informed him that the appellant had mentioned he had had

a drug weekend. Record at 37. The senior chief

telephoned the legal officer and related this information to

him and asked whether that was probable cause to get a

urine specimen. Record at 38. The legal officer informed

the chief that he would have to check with "the boss" and

would call him back. Five minutes later, the legal officer

called the senior chief back and "said that they felt they

had probable cause to go ahead and get a sample." Record

at 38. The record does not state who "the boss" was,

whether anyone in authority authorized the taking of a

specimen, or whether that person authorized an extraction

of body fluids by catheterization. In any case, the senior

}

32a

chief hung up-the telephone and returned to the space

where the medical staff was preparing a catheter. Senior

Chief Burton then testified: 7

I told them I had permission to get a sample

and if it was possible to get enough of a

sample that I would like to get one. They

used the catheter to get their’s out and when

she was done, she asked me for my bottle

and what was left I got. And then she took

a look at the amount that was in the bottle,

and she said, “I’m not sure if this is

enough," and she poured a little bit into the

bottle. She said, "This is more than enough

for us and this should be enough for your

sample," and I took the sample from the

nurse, put the lid on it, put the label on and

put the seal on it, placed it in the box with

the tape around the box and hand carried it

over to the lab after I finished the

paperwork.

Record at 38. As to whether the appellant verbally

objected to the catheterization, the senior chief thought the

appellant said, "I don’t want that. I’m not having it."

Record at 42.

Finally, the appellant took the stand and testified for the

limited purpose of the motion to suppress. In substance,

he testified that he refused the senior chiefs request for a

urine specimen because he figured the senior chief could

get it from the hospital when they got theirs. Record at

46. He also testified that he told the nurse he did not want

her to catheterize him because he felt he could drink

something and urinate. Record at 47. Further the

eee ee mere Ne

33a

appellant testified the procedure was very painful because

it lasted so long. More specifically, he testified:

She couldn’t get no -- no urine. I was dehydrated

and she had to -- I remember she said, "We're

going to have to tickle it," or something, and she

went all the way down and came back up and did

it again like sort of to, you know, make it --.

* * *

Once the tickling sensation part didn’t work, she

had to go all the way and then she pumped some

apparatus to open up my bladder or something and

I’m watching all of this in pain and they could see

the tears in my eyes. I was crying.

* * *

[The whole procedure was] degrading. | think that

was so vile, you know. I couldn’t understand what

was -- mean enough on me (sic). I was there. I

was there almost two hours and all of a sudden I’m

being put under this cruelty, you know, just to give

a sample all of a sudden. It was all of a sudden

because Senior Chief showed up and there was a

rush. I couldn’t understand. I heard -- I heard it.

And during the procedure there was talk -- talk

going on of how, you should have, you know, did

this, you should have -- and security guards in

there, they’re talking and when finally got

something it was like applaud, you know, because

they was trying so long and when she sticked it up

in my bladder and came out with something, it was

34a

Record at 46-48. Finally, the appellant testified that there

were 10 people present during the whole process. Record

at 48.

The Government argued at trial that the motion to

suppress should be denied because the extraction of urine

from the appellant did not violate the appellant’s due

process rights under the Fourteenth Amendment [sic]. He

also argued that the extraction was admissible under

Military Rule of Evidence (Mil.R.Evid.) 312(d), which

authorizes involuntary extractions of body fluids upon

probable cause, and further that the sample was admissible

under Mil.R.Evid. 312(f), which permits the admission of

evidence obtained from a body intrusion for a valid

medical purpose. The appellant contended that the search

of the appellant’s urine violated his due process rights

under the Fourteenth Amendment [sic], citing Rochin and

United States v. Williamson, 4 U.S.C.M.A. 320, 15 C.M.R.

320 (1954), and that the admission could not be justified

on the basis of the "valid medical purpose" rule,

Mil.R.Evid. 312(f). The military judge entered the

following essential findings:

Let me say preliminarily that if the sole

purpose of catheterization in this case had

been to obtain evidence for prosecution, |

would not hesitate to find that the forcible

catheterization of a conscious protesting

suspect would be an unreasonable search and

seizure, notwithstanding the provisions of

MRE 312(d), for the reasons set forth in

Williamson and Rochin v. California. In his

concurring opinion in Williamson, Judge

35a

Brosman ably argues the reasons why such

procedure would in the words of Rochin v.

California, shock the conscience, the

physical discomfort, the risk of infection and

what Judge Brosman referred to as the

psychological impact and what our Dr.

Woods here today referred to as

"psychological overlay," all argue against

this as an approved method of evidence

collection.

Besides, if evidence had been the sole

object of this exercise, the command would

have had the reasonable alternatives of

waiting until Petty Officer Fitten could

provide a sample _ naturally, under

apprehension, if necessary, or prosecuting

him for failure to obey a lawful order to

provide a sample.

It is worthwhile to note here that there

was no evidence that Petty Officer Fitten’s

Commanding Officer ever ordered him to be

catheterized.

BMCS Burton was directed to try to

obtain a sample of Petty Officer Fitten’s

urine by consent, if possible, or by execution

of a search authorization if necessary, but

only with the tacit understanding that Petty

Officer Fitten was being catheterized for

diagnostic purposes anyway.

I find that Dr. Woods ordered, and Nurse

Broadwell performed, a catheterization of

36a

Petty Officer Fitten solely for authorized

medical purposes. The fact that a portion of

the urine thus extracted from Petty Officer

Fitten was ultimately used for purposes of

prosecution is totally collateral.

The evidence seized by BMCS Burton is,

therefore, admissible under MRE 312(f) and

the defense motion to suppress is denied.

Record at 54-55.

On appeal the appellant contends that the extraction of

fluids violated the principles of Rochin, whereas the

Government contends that the urinalysis results were

properly admitted under the "valid medical purpose" rule,

Mil.R.Evid. 312(f).

Ii.

No urinalysis results were offered by the Government at

trial. The only indication of what urinalysis results the

parties were considering is in the appellant’s motion to

suppress wherein he alludes to the transportation of the

specimen obtained by the senior chief to a Navy drug

laboratory for testing and to the sample’s allegedly testing

positive for cocaine and marijuana. Appellate Exhibit I.

Based on his essential findings, supra, it appears the

military judge ruled on the admissibility of urinalysis

results that might have been obtained on the specimen

acquired by Senior Chief Burton. The military judge made

no ruling respecting any results that might have been

obtained on the specimen sent to the hospital’s own

laboratory.

ny

ooo

- —— teens

37a

It is the function of the military judge to ensure that the

issues are focussed. Cf United States v. Brandell, 35 M.J.

369 (C.M.A. 1992); see United States v. Nix, 36 M.J. 660,

665 (N.M.C.M.R. 1992). The better practice in litigating

a motion to suppress is to have the relevant evidence

offered. When the military judge rules on the motion, he

or she then excludes, admits, or admits conditionally the

precise item of evidence in issue. Such practice focusses

the issues.

The practice employed here was in essence the

solicitation and issuance of an advisory opinion from the

military judge. The hazard in that practice is demonstrated

in this case. There are two possible urinalyses -- one

performed by a Navy drug laboratory and one performed

by the hospital laboratory. In my view, these items of

evidence would be treated differently. In any case, based

on the defense counsel’s written motion, the military

judge’s essential findings, and the oral arguments of the

parties, we are now concemed only with the urinalysis

performed by a Navy drug laboratory on the specimen

obtained by the investigator, and it is upon those results

that the parties agree the appellant’s prosecution is

predicated. Therefore, for our purposes, any urinalysis that

might have been performed by the hospital, itself, is not

germane to the resolution of the issues in this case.

IV.

Congress has authorized the President to promulgate

rules of evidence applicable in trials by courts-martial.

UCMS art. 36(a), 10 U.S.C. § 836(a). Pursuant to that

authority, the President has promulgated the Military Rules

of Evidence. Under these rules all relevant evidence is

admissible, except as otherwise provided by the

38a

Constitution of the United States as applied to members of

the armed forces, the Uniform Code of Military Justice, the

Military Rules of Evidence, the Manual for Courts-Martial,

or any Act of Congress applicable to members of the

armed forces. Mil.R.Evid. 402. Relevant evidence "may

be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the members, or by a

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence." Mil.R.Evid. 403.

Evidence that is not relevant is inadmissible. Mil.R.Evid.

402.

The results of a relevant urinalysis on a specimen

obtained from an accused servicemember are potentially

admissible under several of the rules of evidence, discussed

in part infra: (1) the specimen was obtained by consent

(Mil.R.Evid. 314(a), (e)); (2) the specimen was obtained

upon probable cause pursuant to an authorization to search

issued by competent authority (Mil.R.Evid. 312(d), 315);

(3) the specimen was obtained upon probable cause under

exigent and other special circumstances without prior

authorization by competent authority (Mil.R.Evid. 312(d),

315(g)); (4) the specimen was obtained for a valid medical

Purpose irrespective of probable cause (Mil.R.Evid.

312(f)); (5S) the specimen was obtained without probable

cause, but in the course of an administrative inspection

(Mil.R.Evid. 313); or, (6) the specimen was unlawfully

obtained as a result of an unlawful search or seizure,

however, the specimen would have been obtained even if

the unlawful search or seizure had not been made

(the"inevitable discovery" rule) (Mil.R.Evid. 31 1(b)(2)).

Under Mil.R.Evid. 311, evidence obtained as a result of

an unlawful search or seizure made by a person acting in

39a

a governmental capacity is inadmissible against the accused

if the accused makes a timely motion to suppress and the

accused had a reasonable expectation of privacy in the

person searched or when the accused would otherwise have

grounds to object to the search or seizure under the

Constitution of the United States as applied to the members

of the armed forces.

A motion to suppress evidence on grounds of unlawful

search or seizure is ruled on by the military judge, and the

prosecution has the burden of proving by a preponderance

of the evidence that the evidence was not obtained as a

result of an unlawful search or seizure or that the evidence

would have been obtained even if the unlawful search or

seizure had not been made. Mil.R.Evid. 311(d)(4), (e)(1).

Evidence obtained from the non-consensual extraction of

body fluids upon probable cause is admissible under certain

circumstances.* In this regard, Mil.R.Evid. 312(d),

Extraction of Body Fluids, provides:

Nonconsensual extraction of body fluids,

including blood and urine, may be made

from the body of an individual pursuant to

a search warrant or a [probable cause]

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) [probable cause searches without

authorization under certain exigencies], only

when there is clear indication that evidence

See generally United States v. McClain, 31 M.J. 130 (C.M.A.

1990).

40a

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 destruction of the

evidence. Involuntary extraction of body

fluids under this rule must be done in a

reasonable fashion by a person with

appropriate medical qualifications.

According to the Analysis accompanying this rule, the

foregoing provision "does not apply to compulsory

production of body fluids (e.g., being ordered to void

urine), but rather to physical extraction of body fluids (e.g.,

catheterization or withdrawal of blood)." Mil.R.Evid. 312

Analysis. See also Murray v. Haldeman, 16 M.J. 74, 82

(C.M.A. 1983); Stephen A. Saltzburg ef a/, Military Rules

of Evidence Manual 297 (3d ed. 1991).

Evidence obtained as a result of an intrusion into the

body for a valid medical purpose, with or without probable

cause, is also admissible under the rules. In this regard,

Mil.R.Evid. 312(f), /ntrusions for Valid Medical Purposes,

provides:

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 servicemember. Evidence or

contraband obtained from an examination or

intrusion conducted for 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.

i eaeenincemeiieeienmiianiaiealtiiel

4la

According to the Analysis accompanying the Military

Rules of Evidence, the results of a urinalysis of a urine

specimen obtained through involuntary catheterization for

the servicemember’s immediate health needs would be

admissible in a subsequent trial under this rule.

Mil.R.Evid. 312(f) Analysis, 313(b) Analysis.

Relevant evidence obtained from inspections in the

armed forces is also admissible. Mil.R.Evid. 313. An

"inspection" under this rule includes an order to produce

bodily fluids, such as urine, however, an examination made

for the primary purpose of obtaining evidence at trial or

other disciplinary proceedings is not an "inspection" within

the rule. If the purpose of the examination is to locate

contraband, and if it is directed immediately following a

report of a specific offense and was not previously

scheduled, or specific individuals are selected for

examination, or persons are subjected to substantially

different intrusions during the same examination, then

before the evidence obtained from the examination may be

admitted, the prosecution must prove by clear and

convincing evidence that the examination was an inspection

within the meaning of the rule. Mil.R.Evid. 313(b).

Inspections must be conducted in a reasonable fashion and

comply with Mil.R.Evid. 312, if applicable. Inspections

may utilize any reasonable natural or technological aid. /d.

An inspection may not be unduly humiliating or degrading.

Cf Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989) (an

enlisted female’s direct observation of a female officer

donate a urine specimen was not unduly humiliating or

degrading); Murray v. Haldeman (compulsory donation of

a urine specimen for urinalysis was not conducted in an

offensive manner or under circumstances which would tend

to humiliate or degrade accused).

42a

Finally, among the exceptions to the rule of

inadmissibility of evidence obtained seized as a result of an

unlawful search or seizure, is evidence that would have

been obtained even if the unlawful search or seizure had

not been made. Mil.R.Evid. 311(b)(2). This rule, “the

inevitable discovery" rule, is based on Nix v. Williams, 467

U.S. 431 (1984), in which the United States Supreme

Court held that "if the prosecution can establish by a

preponderance of the evidence that the information

ultimately or inevitably would have been discovered by

lawful means . . . then the deterrence rationale [of the

exclusionary rule] has so little basis that the evidence

should be received." 467 U.S. at 444, quoted in United

States v. Allen, 34 M.J. 228 (C.M.A. 1992). Thus, if the

prosecution proved that’ the seizure of contraband was

inevitable through the exercise of proper police procedures

authorized by proper authority despite the prior illegal

search, the illegally seized evidence need not be excluded.

United States v. Kozak, 12 M.J. 389 (C.M.A. 1982). In

order to avail itself of this exception to the exclusionary

rule, the prosecution must show "by a preponderance of the

evidence, that there is (1) a reasonable probability that the

contested evidence would have been discovered by lawful

means in the absence of police misconduct and (2) that the

government was actively pursuing a substantial alternate

line of investigation at the time of the constitutional

violation." United States v. Kaliski, 37 M.J. 105, 109

(C.M.A. 1993) (quotations omitted). In any case, the

inevitable discovery rule must be applied carefully and

narrowly, United States v. Korda, 36 M.J. 578 (A.F.C.M.R.

1992), and "each case must be decided on its specific

facts." Kaliski, 37 M.J. at 109.

a Il i et et

Oe ee es ee ee ee ee ee ee eee ae ee ee ee ee ee ae ee ee ee eee eS

43a

V.

In Rochin, the police broke into the appellant’s bedroom

and questioned him about the ownership of two capsules

on a nightstand. Rochin placed the capsules in his mouth.

Following an unsuccessful struggle with Rochin, the police

took him in handcuffs to a hospital where at a police

officer’s direction, a doctor forced an emetic solution

through a tube into Rochin’s stomach. As a result of this

“stomach pumping” procedure, Rochin disgorged the

capsules. The capsules were seized by the police. The

capsules contained morphine. Rochin was convicted in a

California Superior Court of possessing a preparation of

morphine in violation of the California code. The chief

evidence against Rochin was the two capsules admitted in

evidence over his objection. 324 U.S. at 166. The United

States Supreme Court concluded that the foregoing conduct

of the police "shocks the conscience" and reversed the state

conviction brought about by this conduct because it

offended the Due Process Clause of the Fourteenth

Amendment to the Constitution. 342 U.S. at 172, 174.

Shortly after Rochin was decided by the Supreme Court,

the Court of Military Appeals held Rochin was applicable

in trials by court-martial. United States v. Speight, 5

U.S.C.M.A. 668, 18 C.M.R. 292 (1955); United States v.

Jones, 5 U.S.C.M.A. 537, 18 C.M.R. 161 (1955); United

States v. Booker, 4 U.S.C.M.A. 335, 15 C.M.R. 335

(1954); Williamson. In Williamson, a majority of our

senior Court concluded that the extraction of urine by

catheterization of an unconscious accused by medical

personnel did not violate Rochin, however, in a concurring

opinion, Judge Brosman allowed that had the evidence

been obtained over the accused’s protest, he would

conclude "that fundamental standards of decency in law

44a

enforcement had been infringed, and that a conviction

predicated in any part on such evidence violated the

concept of ’military due process." 15 C.M.R. at 329. In

a vigorous dissenting opinion, Judge Quinn was of the

view that the unconscious state of the accused was

immaterial, the real question being "whether or not an

outside agency is justified in invading the sanctity of the

human body without consent." 15 C.M.R. at 332.

Moreover, as between the use of a stomach pump and a

catheter, Judge Quinn found the latter to be more

reprehensible. 15 C.M.R. at 334.

In Jones, the Court was presented with the case

hypothesized by Judge Brosman in his concurrence a year

earlier. Jones was confined for an unauthorized absence.

He was observed acting strangely and was suspected of

using drugs. The accused agreed to go to the dispensary.

When other methods at securing a urine specimen from the

accused failed, he was catheterized by a doctor over the

accused’s objection. An analysis of the urine obtained

revealed the presence of morphine. The appellant was

tried and convicted for wrongful use of morphine. Judges

Quinn and Brosman joined to reverse on the basis of their

views in Williamson. In Speight, a case with facts virtually

identical to those in Jones, a unanimous Court again

reversed the conviction. Judge Latimer, the dissenter in

Jones, concurred in the result, observing that Jones “ended

catheterization as a scientific method of crime detection"

and further dissents by him served no useful purpose. 18

C.MLR. at 293.

In Breithaupt v. Abram, 352 U.S. 432 (1957), the

accused’s pick-up truck was involved in an automobile

accident with a passenger car on a New Mexico highway.

Three persons in the passenger vehicle were killed. The

45a

unconscious accused was transported to a hospital where,

at a state patrolman’s request, a medical doctor extracted

a blood specimen by means of a hypodermic needle. The

specimen was given to the patrolman. The subsequent

chemical analysis of the specimen for blood-alcohol

content was admitted in evidence over the accused’s

objection in a state prosecution for manslaughter. The

Supreme Court held that this method of obtaining evidence

did not "shock the conscience" or offend a "sense of

justice," as in Rochin, and did not violate the Due Process

Clause of the Fourteenth Amendment. 352 U.S. at 434,

437.

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

Supreme Court extended Breithaupt to a conscious accused

and further held that the involuntarily extraction of a blood

specimen at police request by a physician in a hospital

environment according to accepted medical practices did

not violate the Fourth Amendment’s protection against

unreasonable searches and seizures, as applied to the States

through the Fourteenth Amendment.‘

In Winston v. Lee, 470 U.S. 753 (1985), the Supreme

Court revisited Schmerber to consider whether a state may,

consistent with the Fourth Amendment, compel an accused

to undergo the surgical removal of a bullet in order to use

it as evidence against him in a prosecution for attempted

armed robbery. The Supreme Court concluded that the

operation would intrude severely on the accused’s privacy

interests, that. the medical risks, although apparently not

extremely severe, were a subject of considerable dispute,

4 Schmerber has been applied to trials by courts-martial. See

United States v. Bickel, 30 M.J. 277 (C.M.A. 1990); United States v.

Armstrong, 9 M.J. 374 (C.M.A. 1980).

46a

that the state had failed to demonstrate a compelling need

for the bullet, and that therefore the state had failed to

demonstrate that it would be reasonable under the terms of

the Fourth Amendment to search for evidence of the crime

by means of the contemplated surgery. 470 U.S. at 766.

In so holding, it stated:

The Fourth Amendment is a vital safeguard

of the right of the citizen to be free from

unreasonable governmental intrusions into

any area in which he has a reasonable

expectation of privacy. Where the Court has

found a lesser expectation of privacy, or

where the search involves a minimal

intrusion on privacy interests, the Court has

held that the Fourth Amendment’s protection

are correspondingly less _ stringent.

Conversely, however, the Fourth

Amendment’s command that searches be

"reasonable" requires that when the State

seeks to intrude upon an area in which our

society recognizes a significantly heightened

privacy interest, a more _ substantial

justification is required to make the search

"reasonable." Applying these principles, we

hold that the proposed search in this case

would be "unreasonable" under the Fourth

Amendment.

470 U.S. at 767 (citations omitted).°

> In so holding, the Court also togk note of its prior holding in

Rochin: "Rochin, recognizing the individual’s interest in "human dignity,’

heid the search and seizure unconstitutional under the Due Process

Clause.” 470 U.S. at 679 n.5.

47a

"It is now settled that the protections of the Fourth

Amendment and, indeed, the entire Bill of Rights are

applicable to the men and women serving in the military

services of the United States unless expressly or by

necessary implication they are made inapplicable." United

States v. Ezell, 6 M.J. 307, 313 (C.M.A. 1979). "This is

not to say, however, that in its application the Fourth

Amendment does not take into account the exigencies of

military necessity and unique conditions that may exist

within military society." United States v. Middleton, 10

M.J. 123, 127 (C.M.A. 1981). "[W]hen it is suggested that

a different rule should apply to military searches and

seizures than those in the civilian community, some burden

exists to show the need for such a variation." Jd.

Thus, Rochin’s fundamental principle that the due

process of law, provided for in the Fifth Amendment as

well as the Fourteenth Amendment, precludes prosecution

on the basis of evidence obtained by force, brutal and

insensitive to human dignity, is now a principle of military

law. Likewise, in the absence of some showing of

necessity for a different rule, the Fourth Amendment’s

protection against unreasonable searches and seizures

applies to military personnel as in Lee to preclude invasive

surgical procedures for the purpose of obtaining

incriminating evidence. Inasmuch as_ these are

constitutional principles applicable to trials by

courts-martial, the Military Rules of Evidence must be

construed in harmony with them. Cf United States v.

Kossman, 38 M.J. 258, (C.M.A. 1993); United States v.

Clemons, 16 M.J. 44, 49 (Judge Everett concurring).

48a

VI.

On appeal, this Court may at its discretion review a trial

judge’s evidentiary rulings applying an abuse of discretion

standard or, alternatively, it may review them de novo.

See United States v. Cole, 31 M.J. 270 (C.M.A. 1990).

While we are generally inclined to defer to a trial judge’s

essential findings of fact on a motion to suppress evidence,

we are not bound by them. United States v. Jones, 34 M.J.

899 (N.M.C.M.R. 1992). In any case, the trial judge’s

essential findings will not be given deference when they

are not supported by any evidence of record or when they

are clearly erroneous. See United States v. Cummings, 21

M.J. 987 (N.M.C.M.R. 1986). Moreover, there is no

deference as to questions of law. Cf UCMJ art. 66(c), 10

U.S.C. § 866(c).

VU.

As noted above, there are six potential bases upon which

the results of the urinalysis may have been admitted: (1) a

consent search; (2) a search authorized upon probable

cause; (3) a search upon probable cause without

authorization, but under exigent and special circumstances;

(4) an inspection; (5) an intrusion for a valid medical

purpose; and (6) inevitable discovery.

The admissibility of the test results on the basis of

consent or an administrative inspection may be summarily

rejected. The record before us clearly demonstrates that

the appellant adequately registered his objection and no one

seriously contends he consented. Similarly, the evidence

was not obtained on the basis of an administrative

inspection. Extraction of body fluids, as distinguished

from the production of body fluids, is not contemplated as

49a

an administrative inspection within Mil.R.Evid. 313. To

the contrary, extractions of body fluids, to the extent they

may be constitutionally performed at all, must qualify

under Mil.R.Evid. 312. Additionally, the evidence

suggests the command investigator acquired his specimen

for the primary purpose of obtaining evidence for use at

trial or other disciplinary proceedings, and the conduct of

administrative inspections of servicemembers by means of

catheterization would unquestionably be unduly humiliating

and degrading. Unger; Murray, 16 M.J. at 81. Again, no

one seriously suggests the evidence was obtained as a

result of an inspection.

I am also unpersuaded that the record shows the

evidence was procured as a result of a command

authorized extraction of body fluids under Mil.R.Evid.

312(d) and 315. Firstly, | reiterate the record does not

reflect what was authorized or who authorized it. Even if

we assume that the appellant’s commanding officer

authorized the seizure of a urine specimen, as appellant

states in his trial brief, there is nothing in the record to

show that the commanding officer authorized search and

seizure by catheterization. Equally probable, the

commanding officer contemplated the appellant would be

ordered to produce a specimen and, if necessary, obliged

to consume fluids and void in nature’s good time without

resort to intrusive measures. Neither the commanding

officer nor the legal officer were called to set these matters

to rest. One may infer that this information, which

presumably was within their possession, would have been

produced by the Government at trial if it had been

favorable to the Government’s interests.

More to the point, our senior Court has already stated

with clarity that obtaining evidence from an accused by use

50a

of a catheter over his protest infringes upon fundamental

standards of decency in law enforcement and a conviction

predicated in any part on such evidence violates the

concepts of due process. Williamson, 15 C.M.R. at 329

(Judge Brosman concurring); Speight; Jones. We are not

free to ignore this precedent. See United States v. Jones,

23 M.J. 301 (C.M.A. 1987).

Nothing in the 40 years since the Williamson line of

cases was decided has transpired in civilized society to

render search and seizure by catheterization less offensive

to fundamental standards of decency. The observations of

Judges Brosman and Quinn concerning this procedure ring

as true today as they did when these cases were decided.

If anything, the testimony taken in this case confirms the

observations of Judge Brosman in Williamson:

In the first place, catheterization involves

infinitely more physical discomfort than the

mere pricking of a suspect’s finger --

although it is perhaps not so painful as the

dissenting judge [Judge Quinn] implies. The

degree of distress caused by this medical

procedure -- I am informed -- will depend

on a number of factors, principally the

suspect’s threshold of pain, his nervousness

and tension at the time, and the skill of the

operator. Second, at least some slight risk

of urinary tract infection is associated with

the challenged operation. In this regard, a

mitigating circumstance would be present, of

course, if the extraction were performed --

as in the instant casé~-- by a qualified

physician. A third -- and to my mind a

most important factor -- is the psychological

Sla

impact potential possessed by this type of

scientific exploration. The extraction of the

fluid is, of course, from the male

reproductive organ. Subconscious fears

associated with this area are substantial --

indeed so great that many schools of

psychoanalysis place special emphasis on the

role of the "fear of castration." In addition,

an accused might well entertain distinctly

conscious fears of infection from the

operation. Finally, if forcible catheterization

were permitted, a sublimated "third degree"

-- one embracing pseudoscientific menaces

-- might easily result. By this | mean to

suggest that the fear of injury to the organs

concerned is so massive and pervading that

a suspect might tend to choose confession as

a route of escape from the threat of

catheterization. . . . In light of these

considerations, | must hold that the forcible

extraction of urine from a protesting accused

is as noxious as the use of a stomach pump.

15 C.MLR. at 329.

The humiliation and indignity of the process here is

patent. Over his protest the appellant was subjected to the

manipulation of his genitals by a female nurse and to the

discomforting, if not painful, insertion and maintenance of

a tube therein in full view of a crowd of onlookers, not all

of whom were medical personnel.

The fact that the procedure was accomplished by

someone who is medically trained is a consideration, but

it is not dispositive. The procedures employed in Rochin,

52a

Williamson, Jones, Speight, and Lee were all performed or

to be performed by medical doctors.

If we assume the catheterization was authorized by the

appellant’s commanding officer, an assumption we may not

fairly make on the evidence of record, the fact of

authorization would not render the procedure of obtaining

evidence by catheterization over a subject’s protest less

violative of the standards of decency. A _ prosecution

predicated on action offensive to the sense of justice is no

less so because the commanding officer authorized it. Cf.

Lee. See, e.g., People v. Scott, 21 Cal. App. 3d 284, 578

P.2d 123 (1978) (court-ordered bodily intrusion, which

consisted of massaging the prostrate gland to obtain a

semen sample, was regarded as extreme as regurgitation in

Rochin).

I am also unable to find in the record evidence

supporting the military judge’s essential finding that

"BMCS Burton was directed to try to obtain a sample of

Petty Officer Fitten’s urine by consent, if possible, or by

execution of a search authorization if necessary, but only

with the tacit understanding that Petty Officer Fitten was

being catheterized for diagnostic purposes anyway." Record

at 54-55 (emphasis added). Specifically, I am unable to

find any evidence that the appellant’s commanding officer

was informed that the appellant would be catheterized for

diagnostic purposes anyway or how the commanding

officer might have come to understand such, tacitly or

otherwise.

In short, based on the principles of due process of law

embodied in the Fifth Amendment, as applied to the

military according to Williamson and its progeny, I would

hold, as our senior Court binds us to do, that obtaining a

53a

urine specimen by catheterization cannot be sanctioned

under Mil.R.Evid. 312(d), as a probable cause search, with

or without command authorization. A fortiori, a search and

seizure by catheterization is per se unreasonable under

Fourth Amendment analysis. If the results of the urinalysis

of this specimen may be admitted, admission must be

justified on other bases entirely. I turn, therefore, to the

"valid medical purposes" rule, Mil.R.Evid. 312(f), upon

which the Government rests as the basis for admitting the

urinalysis results in this case.

The appellant does not contest the proposition that

servicemembers may be subjected to invasive medical

procedures against their will when necessary to preserve

the servicemember’s health. Nor does he contest the

notion that incriminating evidence obtained in the course

of such procedures may be used against in trials by

courts-martial. In fact, very recently the United States

Court of Military Appeals held that the results of chemical

analysis on blood drawn in an emergency room for

diagnostic purposes would be admissible under Mil.R.Evid.

312(f), even though the results did not actually affect the

accused’s treatment. United States v. Maxwell, 38 M.J.

148 (C.M.A. 1993).

We have been cited no reported military case, other than

those cited above, that prescribes the limits of what

Government medical personnel may do over the objection

of military patients.° I do note, however, that the Manual

of the Medical Department, U.S. Navy, provides:

6

Such authority would likely be limited to the least invasive

procedure necessary under the circumstances of the moment according to

medical judgment, and would not extend to invasions simply as a matter

of convenience.

54a

Compulsory Medical or Surgical

Treatment (Regulatory)

(1) By authority delegated by the Secretary of the

Navy, and with the approval of the commanding

officer, the senior medical . . . officer . . . of a ship

or station, after consultation with other medical . .

_ officers if available, will, where in the medical

officer’s judgment the best interests of the

individual or of the service require, take the

following measures with or without the consent of

the individual concerned:

(a) Emergency care required to

preserve the life or health of the

member.

(b) Care necessary to protect the life

or health of a member who is

considered by a psychiatrist to be

mentally incompetent.

** *

MEDMAN, 4 2-18 (emphasis added).’ I reiterate, the

record before us is unclear on the question of what, if any,

medical officer actually authorized the catheterization. The

military judge correctly pointed out there was no evidence

that the appellant’s commanding officer did. Quite clearly,

there is no evidence that the senior medical officer or any

7

See United States v. Cooper, 35 M.J. 417 (C.M.A. 1992) and

cases cited therein for a discussion of the consequence of an agency’s

failure to follow its own regulation.

55a

psychiatrist at Balboa Naval Hospital authorized a

compulsory catheterization.

Whatever the limits may be on the authority of medical

personnel, vis-a-vis nonconsenting military personnel, it

cannot be douhted that the acquisition of incriminating

evidence by Government doctors through invasive

procedures and its subsequent use in the patient’s

prosecution may only be sustained without implicating due

process concerns if the “valid medical purpose" exception

is confined to its bounds. Disciplinary authorities may not

strip the accused of his constitutional rights by merely

donning a white coat or by calling upon medical personnel

to do it for them. See Rochin; Jones; Speight; Lee.

Stating the obvious: Once the valid medical purpose for an

intrusion ceases, the admission of evidence taken thereafter

by means of an ongoing intrusion can no longer be

justified on the basis of medical necessity.

The appellant argues, and I agree, that the specimen

obtained by the investigator was not used for any medical

purpose, valid or otherwise, nor was it drawn in

contemplation of any such purpose. When the

investigator’s specimen was drawn, the specimen arguably

drawn for medical purposes had already been taken.

According to the Government’s own witness, Dr. Woods,

"As soon as the urine sample is obtained in a case like this,

the catheter is generally withdrawn. ... It can be left in

other cases." Record at 14. Once the medical purpose for

the catheterization and the extraction had ceased, the

appellant was entitled to have the procedure stopped and

the apparatus immediately removed. When the nurse left

the apparatus in the appellant’s penis and bladder for the

purpose of drawing more urine for the investigator, she

was not acting for any valid medical purpose and the

56a

scenario eo instante became that condemned in Williamson

and its progeny.

One arrives at the same conclusion with either the

scenario testified to by Ms. Broadwell or that testified to

by the investigator. The investigator injects one additional

factor, however. He testified that the nurse stated she had

more urine than she needed for hospital purposes in the

first specimen she had drawn and she poured some of that

specimen into the one she gave to the investigator. This

scenario suggests that the nurse had extracted more urine

than was reasonably necessary for a valid medical

purpose.’ In any case, from the outset the nurse was

embarking on two missions -- draw a specimen for the

hospital and draw a specimen for the investigator. Only

the one that went to the hospital could arguably be covered

under the valid medical purposes rule, and that specimen

is not a consideration on the record of this case.

Finally, one must address the question of "inevitable

discovery," reminded that the rule must be applied

narrowly and carefully. The Government made no attempt

to establish the admissibility of the urinalysis results on the

basis of inevitable discovery. Whether or not a urine

specimen would inevitably have been procured by the

Government through lawful means was not established.

Nor did the Government prove it was actively pursuing a

substantial alternate line of investigation at the time of the

constitutional violation. Moreover, we have not been cited

to any authority that would apply the "inevitable discovery"

rule to evidence seized as a result of a Rochin due process

* The record does not indicate whether the portion of urine she

shared, if any, was sufficient in and of itself for purposes of drug

laboratory testing.

57a

violation. Rather, the "inevitable discovery" rule appears

to have been applied only to technical Fourth Amendment

violations. Surely the inevitable discovery rule may not

excuse a prosecution based on police conduct that infringed

fundamental standards of decency. Accordingly, |

conclude the "inevitable discovery" exception, Mil.R.Evid.

311(b)(2), is unavailable here.

Vill.

Based on the foregoing, I would hold the military judge

abused his discretion in failing to suppress iest results of a

urinalysis conducted upon urine obtained by the base

investigator by means of catheterization over the

appellant’s protest. Inasmuch as the appellant’s pleas of

guilty to the drug offenses were entered conditionally

pursuant to R.C.M. 910(a)(2), I would set aside the

findings of guilty and sentence. The civil rights of

American citizens are understandably curbed when they

embark upon service in the armed forces of their country,

but no provision of the Constitution or the Code

countenances searching their bladders for incriminating

evidence in the name of good order and discipline.? Here

is where common decency and the Constitution demand we

draw the line.

9% See UCM) art. 93, 10 U.S.C. § 893.

“ J

ee a ee ed

AOS. ONS em repent: bomen ani oe

58a

APPENDIX C

MANUAL FOR COURTS - MARTIAL, 1984

Prescribed by Executive Order No. 12473.

April 13, 1984

PART II] MILITARY RULES OF EVIDENCE

SECTION _ IIL. EXCLUSIONARY RULES AND

RELATED MATTERS CONCERNING

SELF-INCRIMINATION, SEARCH AND SEIZURE,

AND EYEWITNESS IDENTIFICATION

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 ru!es.

* * *

(d) Extraction of body fluids. Nonconsensual extraction

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 a 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 destruction of

59a

the evidence. Involuntary extraction of body fluids under

this rule must be done in a reasonable fashion by a person

with appropriate medical qualifications.

* * *

(f) Intrusions for valid medical purposes. 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.

(g) Medical qualifications. The Secretary concerned may

prescribe appropriate medical qualifications for persons

who conduct searches and seizures under this rule.

.

;

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60a

APPENDIX D

MANUAL FOR COURTS - MARTIAL, 1984

Prescribed by Executive Order No. 12473,

as amended by E. O.

No. 12484.

July 13, 1984

PART III MILITARY RULES OF EVIDENCE

SECTION _ Ill. EXCLUSIONARY RULES AND

RELATED MATTERS CONCERNING

SELF-INCRIMINATION, SEARCH AND SEIZURE,

AND EYEWITNESS IDENTIFICATION

Rule 315. Probable cause searches

(a) General rule. Evidence obtained from searches

requiring probable cause conducted in accordance with this

rule is admissible at trial when relevant and not otherwise

inadmissible under these rules.

(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 person and to seize such property,

_ evidence, or person. It may contain an order

6la

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.

(c) Scope of authorization. A search authorization may

be issued under this rule for a search of:

(1) Persons. The person of anyone subject to

military law or the law of war wherever found. |

* * *

(d) Power to authorize. Authorization to search pursuant

to this rule may be granted by an impartial individual in

the following categories:

(1) Commander. A commander or other person

serving in a position designated by the Secretary

concerned 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 law of

war{.}

(e) Power to search. Any commissioned officer, warrant

officer, petty officer, noncommissioned officer, and, when

in the execution of guard or police duties, any criminal

investigator, member of the Air Force security police,

62a

military police, or shore patrol, or person designated by

proper authority to perform guard or police duties, or any

agent of any such person, may conduct or authorize a

search when a search authorization has been granted under

this rule or a search would otherwise be proper under

subdivision (g).

(f) Basis for search authorizations.

(1) Probable cause requirement. A_ search

authorization issued 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.

A search authorization may be based upon hearsay

evidence in whole or in part. A determination of

probable cause under this rule shall be based upon

any or all of the following:

(1) Written statements communicated to

the authorizing officer;

(2) Oral statements communicated to the

authorizing official in person, via telephone,

or by other appropriate means of

communication; or

(3) Such information as may be known by

the authorizing official that would not

preclude the officer from acting in an

impartial fashion. The Secretary of Defense

63a

or the Secretary concerned may prescribe

additional requirements.

(g) Exigencies. A search warrant or search authorization

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;

(4) Not required by the Constitution. A search

warrant or authorization is not otherwise required

by the Constitution of the United States as applied

to members of the armed forces.

oe