# Petition for Writ of Certiorari — Fitten v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 917

## Text

@ 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).

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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

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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

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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).

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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
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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,

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2163%3A1. Public record. Not legal advice.