Amicus Curiae Brief — Stevenson v. United States

Supseme Court, U8.

8) FILED

00- 919) FB 5 2m

No. 00

Jn the Supreme Court of the — States |

WALTER S. STEVENSON,

United States Army, Petitioner,

V.

THE UNITED STATES OF AMERICA, Respondent

—

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

BRIEF OF THE UNITED STATES ARMY DEFENSE

APPELLATE DIVISION AS AMICI CURIAE IN

SUPPORT OF PETITIONER

JONATHAN F. POTTER KEVIN J. MIKOLASHEK

Major, U.S. Army Judge Advocate Captain, U.S. Army Judge

General's Corps : Advocate General’s Corps

U.S. Army Legal Services Agency

Defense Appellate Division

901 N. Stuart Street

Arlington, VA 22203

(703) 588-5286

Counsel of Record

DAVID A. MAYFIELD ADELE H. ODEGARD

Lieutenant Colonel, U.S. Army Judge Colonel, U.S. Army Judge

Advocate General’s Corps Advocate General's Corps

ome et Rt ee FY ANB

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

United States Supreme Court

Camara v. Municipal Court of City and County

of San Francisco, 387 U.S. FEF CEB a vecivicetntcdsansatassnstasasnian 4

Griffin v. Wisconsin, 483 U.S. 868(1987)...........cccceceeeeeeeeeeeee 3,4

Michigan v. Tyler, 436 U.S. 499 (1978).........cccccccseceeeeeeeeeeeeees 4

New York v. Burger, 482 U.S. 691 (1987)... .ccccccccssccccccseccccsccces 4

Skinner v. Railway Labor Executive Association,

489 U.S. G02 (1969). ... ...1000sss:cs0ncengenmeeneeneeneleeeenanneenenana 3,4

Treasury Employees v. Von Raab, 489 U.S. 656 (1989)............... 4

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)....... 3,4

Military Cases

United States v. Campbell, 41 M.J. 177 (C.M.A. 1994)............... 5

United States v. Ellis, 24 M.J. 370 (C.M.A. 1987)............ccceeeees 5

United States v. Gardner, 41 M.J. 189 (C.M.A. 1994)................. 5

United States v. Maxwell, 28 M.J. 148 (C.M.A. 1993)...............4. 5

United States v. Miller, 15 C.M.A. 320, 35 C.M.R. 292 (1965)...... 5

United States v. Nand, 17 M.J. 936 (A.F.C.M.R. 1984)............... 5

United States v. Patterson, 39 M.J. 678 (N.M.C.M.R. 1993)......... 5

Statutes and Rules

Manual for Courts-Martial, United States,

Military Rule of Evidlenoo SEAIED. ....cacivcnccusacscssencuaanbeeeenens 3,6

Manual for Courts-Martial, United States,

Military Rule of Evidemoe S1S00). ....<cccescsccensevenseetianentinsseaas 4

In the Supreme Court of the Gnited States

No. 00-

WALTER S. STEVENSON,

United States Army, Petitioner,

V.

THE UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

BRIEF OF THE UNITED STATES ARMY DEFENSE

APPELLATE DIVISION AS AMICI CURIAE IN

SUPPORT OF PETITIONER

The United States Army Defense Appellate Division

respectfully submits this brief as amici curiae in support of

the petitioner.

INTEREST OF THE AMICI CURIAE

The U.S. Army Defense Appellate Division represents

individual soldiers who have been convicted by court-martial and

who have been adjudged either a punitive discharge or

confinement for one year or more. Defense Appellate Division

counsel represent these individuals at the Army Court of Criminal

Appeals (ACCA), the Court of Appeals for the Armed Forces

(USCAAPF), and the Supreme Court of the United States.

SUMMARY OF ARGUMENT

The lower court found that the extraction of the second

vial of blood from petitioner was indeed a search, but failed »

to analyze whether any special needs or circumstances

existed to justify such a warrantless search in the absence of

probable cause. While ignoring this Court’s precedent, the

lower court effectively removed any governmental restraints

related to bodily physical examinations of servicemembers

and military retirees. Furthermore, the lower court’s decision

encourages physical examinations purported to be for

purposes of medical care in cases where probable cause does

not exist, and encourages military medical personnel to act as

law enforcement investigative tools.

ARGUMENT

Stevenson’s petition correctly identifies the legal errors in

the opinion of the Court of Appeals for the Armed Forces.

The United States Army Defense Appellate Division submits

this brief to explain the dramatic implications of the lower

court’s decision, and how that decision effectively removes

any Fourth Amendment protection from active duty

servicemembers and military retirees seeking medical

attention. ()

This Court has fashioned a framework for analyzing

Fourth Amendment cases. The lower court failed to engage ()

in any Fourth Amendment analysis, but, in upholding the

intrusion and extraction of a vial of blood, relied instead on

the mere fact that the Navy had jurisdication over Stevenson.

The Fourth Amendment demands more.

Fourth Amendment jurisprudence requires that the lower

court weigh the intrusion of Stevenson’s Fourth Amendment

interests against the government’s interest in conducting a

non-probable cause seizure of Stevenson’s blood. A search

must be reasonable, and “whether a particular search meets

the reasonableness standard” is judged by balancing its

intrusion on the individual’s Fourth Amendment interests

against its promotion of legitimate governmental interests.”

Vernonia School District 47J v. Acton, 515 U.S. 646, 652-

653 (1995) (citing Skinner v. Railway Labor Executive

Association, 489 U.S. 602, 619 (1989)). When a search is

conducted by law enforcement officials for the purposes of a

criminal investigation, a warrant is necessary absent “special

needs” that make a warrant impracticable. Griffin v.

Wisconsin, 483 U.S. 868, 873 (1987).

No “special needs” exist in Stevenson’s case, especially

given his status on the temporary disabled retired list

(TDRL). Those on the TDRL are subject to physical

examinations every eighteen months to ensure that they still

suffer from a disability, but they are only forced to return to

active duty if the disability ceases to exist and the retiree

acquiesces to the return to active duty. Members of the

TDRL are not necessary components for executing a military

mission. Accordingly, the necessity to take actions to

preserve the health of TDRL members is not the same as for

active duty servicemembers, who must be in physical

condition to engage in combat and other arduous duties. In

fact, those on the TDRL have been determined to be unable

to meet the physical demands necessary of a servicemember,

thus their status on the TDRL.

Because military exigencies do not exist for those on the

TDRL, Mil. R. Evid. 312(f) cannot be shown to be a needed

exception to generally applicable Fourth Amendment

protections. Even if the initial intrusion in Stevenson’s case

was permissible, the subsequent extraction of an additional

vial of blood violated Stevenson’s Fourth Amendment rights.

Military Rule of Evidence 312(f) is an exception to the

Fourth Amendment. Accordingly, it must be appropriately

limited to those areas where there are “special needs, beyond

the normal need for law enforcement” Vernonia School Dist.

Oe

47J v. Acton, 515 U.S. 646, 653 (1995)(citing Griffin v.

Wisconsin, 483 U.S. 868). See also Treasury Employees v.

Von Raab, 489 U.S. 656 (1989) (drug tests for United States

Custom Service employees seeking transfer or promotion to

certain positions); Skinnner v. Railway Labor Executives

- Assn., 489 U.S. 602 (1989) (drug and alcohol tests for

railway employees involved in train accidents or found to be

in violation of particular safety regulations), or are conducted

for certain administrative purposes without particularized

suspicion of misconduct if the searches are appropriately

limited. See, e.g., New York v. Burger, 482 U.S. 691 (1987)

(warrantless administrative inspection of premises of a

“closely regulated” business); Michigan v. Tyler, 436 U.S.

499 (1978) (administrative inspection of fire damaged

premises to determine cause of blaze); Camara v. Municipal

Court of City and County of San Francisco, 387 U.S. 523

(1967) (administrative inspection to ensure compliance with

city housing code).

In Stevenson’s case, the subsequent extraction of an

additional vial of blood was not for a “special need,” nor was

it appropriately limited to an extraction of a vial of blood

necessary for his medical care. It was a blatant demand by

law enforcement officials, who did not have probable cause

to seize Stevenson’s blood, that medical officials conduct just

such a seizure. No connection exists between the medical

diabetes screening and the second vial extracted from

appellant.

Military Rule of Evidence 313(b) allows non-probable

cause extractions of body fluids to ensure “fitness for duty.”

These medical inspections “are intended to discover, correct,

and deter conditions detrimental to military efficiency and

safety.” Jd. However, such inspections become searches

subject to Fourth Amendment limitations when the

investigator’s primary motive is criminal prosecution.

United States v. Campbell, 41 M.J. 177, 181 (C.M.A. 1994)

(suspicion of criminal activity invalid basis to conduct a

urinalysis pursuant to Mil. R. Evid. 313(b)). The criminal

evidence and resulting prosecution must be merely

“incidental punitive action ancillary to an otherwise

justifiable inspection.” United States v. Gardner, 41 M.J.

189, 192 (C.M.A. 1994). Absent such a justifiable

inspection, military courts, before Stevenson’s case, required

that the criminal investigators show probable cause. United

States v. Patterson, 39 M.J. 678, 682 (N.M.C.M.R. 1993)

(citing United States v. Ellis, 24 M.J. 370 (C.M.A. 1987)).

Like the prohibition against subterfuge searches for

inspections, Military Rule of Evidence 312(f) prohibits

doctors from conducting criminal searches and seizures

without probable cause. In United States v. Nand, 17 M.J.

936 (A.F.C.M.R.4984), the Air Force Court of Military

Review addressed the admissibility of a urine sample seized

during an occupational physical examination. Even though

hospital staff used one portion of the urine for the physical

and another part for drug testing, the court upheld the search

and seizure of urine under Military Rule of Evidence 312(f).

Id. at 937. It permitted these intrusions because “there [was]

no evidence that the commander’s order that the sample be

given [for a physical] was in any manner a subterfuge to

acquire evidence for prosecution.” Jd. The Court of Military

Appeals reiterated Nand’s holding in United States v.

Maxwell, 38 M.J. 148 (C.M.A. 1993). In Maxwell, the use of

blood-alcohol evidence was permissible because doctors

extracted the patient’s blood solely out of concern for his

health. Jd. at 149-50 (citing United States v. Miller, 15

C.M.A. 320, 321, 35 C.M.R. 292, 293 (1965)(in a pre-Mil. R.

Evid. 312(f) case, blood-alcohol tests are admissible, “if there

is no ‘nexus’ between the doctor and enforcement agents or

accused’s superiors who may be interested in those results for

the purpose of possible prosecution.”)(citations omitted)).

CONCLUSION

For the physician’s extraction of the second vial of blood

to be valid, Mil. R. Evid. 312(f) requires a sufficient nexus

between the valid medical purpose and the extraction of

blood. No nexus exists between the extraction of the second

vial of blood and Stevenson’s medical needs. The first vial

was all that was necessary to treat Stevenson. The second

vial was purely for criminal investigatory purposes.

Accordingly, the second vial was a product of an illegal

seizure and must be suppressed.

grant the Petition for Certiorari.

JONATHAN F. POTTER

Major, U.S. Army Judge

Advocate General's Corps

United States Army

Defense Appellate Division

901 N. Stuart Street

Arlington, VA 22203

(703) 588-5286

Counsel of Record

DAVID A. MAYFIELD

Lieutenant Colonel, U.S.

Army Judge Advocate

General’s Corps

The Court should therefore

Respectfully Submitted,

KEVIN J. MIKOLASHEK

Captain, U.S. Army Judge

Advocate General’s Corps

ADELE H. ODEGARD

Colonel, U.S. Army Judge

Advocate General’s Corps