

   
   
   
   U.S. v. Stevenson



IN THE CASE OF
UNITED STATES, Appellant
v.
Walter S. STEVENSON, Hospital Corpsman Third
Class
U.S. Navy, Appellee
 
No. 00-6001
Crim. App. No. 99-0769
 
United States Court of Appeals for the Armed
Forces
Argued May 2, 2000
Decided August 2, 2000
EFFRON, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., SULLIVAN and GIERKE, JJ., and COX, S.J.,
joined.
Counsel
For Appellant: Lieutenant Timothy E. Curley,
JAG, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief).
For Appellee: Lieutenant M. Eric Eversole,
JAGC, USNR (argued); Lieutenant Omar R. Lopez, JAGC, USNR (on brief).
Military Judge: Raymond J. Kreichelt.

 

This opinion is subject
to editorial correction before publication.

 

Judge EFFRON delivered the opinion of the Court.
Following arraignment at a general court-martial
on a charge of rape, see Art. 120, Uniform Code of Military Justice,
10 USC § 920, appellee moved to suppress DNA evidence obtained from
a vial of his blood. The military judge granted the motion, the Government
appealed under Article 62(a)(1)(B) and (a)(2), UCMJ, 10 USC § 862(a)(1)(B)
and (a)(2), and the Court of Criminal Appeals affirmed the ruling of the
military judge. 52 MJ 504 (1999). Thereafter, the Judge Advocate General
certified the case to this Court, see Art. 67(a)(2), UCMJ, 10 USC
§ 867(a)(2), asking us to address the following issues:



I. WHETHER MILITARY RULE OF EVIDENCE 312(f)
IS APPLICABLE TO MEMBERS OF THE TEMPORARY DISABILITY RETIRED LIST.
II. IF MILITARY RULE OF EVIDENCE 312(f) APPLIES
TO APPELLEE, WHETHER THE SAMPLE OF HIS BLOOD SEIZED DURING A MEDICAL PROCEDURE
IS ADMISSIBLE UNDER MIL.R.EVID. 312(f).



For the reasons set forth below, we answer the
first question in the affirmative. We return this case for consideration
of the issues raised by the second question, in light of our opinion, during
further court-martial proceedings.

I. BACKGROUND
In November 1997, Naval Criminal Investigative
Service (NCIS) investigators determined that appellee was a possible suspect
in a November 1992 rape of a military dependent in Hawaii, where appellee
had been stationed. At that time, appellee was assigned to the temporary
disability retired list (TDRL), see Part II, infra, and was
being treated for diabetes at the Veterans Administration (VA) hospital
in Memphis, Tennessee.
During the investigation, the NCIS sought to
obtain a sample of appellee's blood for purposes of making a DNA comparison
between his blood and the samples of blood and semen gathered at the time
of the crime. The NCIS asked the VA hospital to obtain a blood sample from
appellee the next time he presented himself for a physical examination
in which a blood sample would be taken during the normal course of his
treatment.
According to the stipulation of fact agreed
to by both parties at trial:



On 3 June 1998, blood was drawn from Stevenson
by staff of the VA Hospital in Memphis, TN. This was accomplished by inserting
one vacuum needle (with an open end) into Stevenson's arm. While this needle
was in his arm, one tube of blood was drawn for treatment and diagnosis
of his diabetes. Within five or six seconds after the first tube was withdrawn
from the needle, hospital staff inserted a second tube in order to obtain
a separate blood sample for NCIS. When the second tube was filled and withdrawn,
hospital staff withdrew the needle out of Stevenson's arm. The needle was
in Stevenson's arm during the entire time both tubes were filled.



The findings of fact by the military judge added:



The initial tube of blood drawn on 3 June
1998 occurred during a normally scheduled medical visit and was drawn for
medical purposes to monitor the accused's diabetes.
The second tube of blood drawn on 3 June 1998
was drawn solely for law enforcement purposes at the request of
NCIS and was not drawn for any medical purpose.

* * *
The VA hospital staff obtained the accused's
consent to draw blood for medical purposes. The VA hospital staff did not,
however, tell the accused that a second tube of blood would be drawn solely
for forensic purposes for use in the [rape] investigation, nor did he give
consent for a second tube of blood to be drawn for that purpose.



II. THE TEMPORARY DISABILITY RETIRED LIST
If a servicemember while on active duty becomes
disabled, the Service Secretary may retire the member with pay, subject
to detailed statutory and regulatory procedures. These procedures provide
two basic types of disability retirement -- permanent and temporary. When
there is a determination that a disability is "permanent . . . and stable,"
the Service Secretary may retire the member with pay. 10 USC § 1201.
If, however, the disability "may be of a permanent nature," but the circumstances
do not permit a final determination that the condition is, in fact, "permanent
. . . and stable," the Secretary is required to place the member on the
"temporary disability retired list, with retired pay." 10 USC § 1202.
While on the TDRL, a member is required to
submit to periodic physical examinations "to determine whether there has
been a change in the disability for which he was temporarily retired."
Failure to submit to such a periodic examination may lead to termination
of retired pay. 10 USC § 1210(a).
When a periodic examination leads to a determination
that the member is "physically fit" to perform his or her duties, there
are a number of options. The member may be returned to active duty with
his or her consent, retired if otherwise eligible for retirement, discharged,
or transferred to the inactive reserves. If the member does not consent
to a proposed return to active duty, "his status on the temporary disability
retired list and his disability retired pay shall be terminated as soon
as practicable and the member shall be discharged." 10 USC § 1211(c).
If a member remains on the TDRL for 5 years,
the Secretary is required to make a final determination. If there is a
determination that the disability "still exists," it is considered at that
point to be "permanent . . . and stable," and the member is retired. 10
USC § 1210. If the member is determined to be fit for duty, the service
has the same options as when such a determination is the result of a periodic
examination: return to active duty with consent, retirement if otherwise
eligible, discharge, or transfer to the inactive reserves.
In United States v. Bowie, 14 USCMA
631, 34 CMR 411 (1964), our Court held that members on the TDRL are subject
to court-martial jurisdiction under Article 2, which includes jurisdiction
over retired members who are entitled to pay. See Art. 2(a)(4),
UCMJ, 10 USC § 802(a)(4). We specifically noted the potential for
recalling persons on the TDRL to active duty, particularly in times of
national need. 14 USCMA at 632, 34 CMR at 412.

III. DISCUSSION
A. Applicability of Mil. R. Evid. 312(f)
to Members on the TDRL
At trial and on appeal, the Government has
relied on Mil. R. Evid. 312(f), Manual for Courts-Martial, United States
(1998 ed.), which provides:



Nothing in this rule [dealing with admissibility
of evidence obtained from "body views and intrusions"] 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 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.



As noted by the Court below, "[t]he sole basis
offered by the Government for the admissibility of the . . . [evidence]
is that it was obtained as a result of an intrusion conducted for a valid
medical purpose, as authorized by Mil. R. Evid. 312(f)." 52 MJ at 508.
The Government has not contended that the evidence in question was obtained
as a result of any of the other rules governing probable cause and non-probable
cause searches and seizures. See id.
There is no exclusion under the Military Rules
of Evidence for members on the TDRL. Mil. R. Evid. 1101(a), entitled "Rulesapplicable,"
provides: "Except as otherwise provided in this Manual, these rules apply
generally to all courts-martial
. . . ." Subsection (d) of that rule, entitled
"Rules inapplicable," contains no indication that the Rules are not applicable
to persons on the TDRL, nor is there anything elsewhere in the Manual for
Courts-Martial that would exempt members on the TDRL from Mil. R. Evid.
312(f).
The court below asserted, however, that the
military services do not rely on members on the TDRL to perform military
missions. In its view, application of Mil. R. Evid. 312(f) to persons on
the TDRL would violate the Fourth Amendment because the rule is not a "needed
exception to the Fourth Amendment protections applicable to the general
populace based upon military exigencies." 52 MJ at 510.
We do not agree with the lower court's assessment
of the TDRL. The exercise of court-martial jurisdiction over members on
the TDRL, as affirmed in Bowie, underscores the continuing military
status of a member on the TDRL, even if the member is not then performing
regular duties. Court-martial jurisdiction reflects the statutory concept
that the TDRL is a "temporary" assignment, not a permanent separation from
active duty. Congress expressly denominated status on the TDRL as "temporary"
and specifically required members on the TDRL to undergo periodic physical
examinations to determine whether each member is "physically fit to perform"
military duties. 10 USC § 1210(f).
The statutory requirement that a member consent
to return to active duty does not diminish the interest of the military
in the member's fitness for duty while on the TDRL. The detailed statutory
provisions for return to duty reflect a congressional expectation that
servicemembers who are determined to be fit for duty, and who thereby lose
entitlement to retirement pay, may well seek to return to duty after receiving
a fitness determination -- whether motivated by patriotism, financial interest,
or other considerations. See, e.g., Craft v. United States,
544 F.2d 468, 210 Ct.Cl. 170 (1976) (holding that the service erred in
finding unfit for duty a servicemember who sought to return to active duty).
Moreover, even if a member on the TDRL is finally
determined to be unfit for duty and is retired for physical disability,
the member retains military status and may be recalled to active duty under
certain circumstances. See, e.g., Akol v. United States,
167 Ct. Cl. 99 (1964) (wartime needs required recall to active duty of
servicemembers who had been retired for physical disability); cf.
McCarty
v. McCarty, 453 U.S. 210, 222 (1981)(discussing amenability of non-disability
retirees to UCMJ jurisdiction and recall to active duty).
Under the lower court's view of the law, a
person on the TDRL observed using an illegal drug could be tried and convicted
by court-martial, so long as the prosecution did not rely on evidence obtained
under Mil. R. Evid. 312(f). If, however, bodily fluids extracted during
a routine medical examination of a person on the TDRL reflected the same
or a greater level of drug abuse, the lower court's ruling would preclude
prosecution if the only evidence was obtained through a medical examination
covered by Mil. R. Evid. 312(f). We do not agree that the Constitution
requires such an anomaly. The constitutional considerations that support
the exercise of court-martial jurisdiction over a military member on the
TDRL -- the receipt of military pay and continuing military status -- are
no less significant when it comes to the use of evidence obtained during
a valid medical procedure concerning the member's continued fitness for
military duty.
In view of the receipt of military pay and
the potential for further active duty service by members who are temporarily
removed from active duty by reason of disability, we conclude that evidence
obtained in compliance with Mil. R. Evid. 312(f) may be used in a court-martial
of a person on the TDRL.
B. Application of Mil. R. Evid. 312(f) to
Appellee
The parties appear to agree that insertion
of the needle into appellee's arm and extraction of the first vial of blood
was undertaken for a "valid medical purpose" and was "necessary to preserve
the health of a servicemember." Under the plain language of Mil. R. Evid.
312(f), if some of the blood in the first vial was made available to the
NCIS for its investigative purposes, any evidence relating thereto would
be admissible.
The prolonged insertion of the needle to extract
a second vial of blood, solely for law enforcement purposes, raises a separate
question under Mil. R. Evid. 312(f). In United States v. Fitten,
42 MJ 179 (CMA 1995), our Court unanimously upheld under Rule 312(f) the
taking of a second bottle of urine for command investigation purposes when
the catheterization and taking of the first bottle of urine was for a medical
purpose. We noted that taking the second bottle of urine had only "a de
minimis impact by prolonging the flow of urine only long enough to
fill the second bottle." Id. at 182. Under the circumstances of
a de minimis intrusion, we concluded that the intrusion did not
violate the Fourth Amendment or the Military Rules of Evidence.
In any further proceedings in the present case
concerning admissibility of the evidence at issue, the military judge will
need to determine -- in light of Fitten -- whether the prolonged
intrusion of the needle in appellee's arm while a second vial was placed
on the vacuum needle, and then for some additional period while the blood
was extracted into the vial, was a de minimis intrusion with respect
to the Fourth Amendment and Mil. R. Evid. 312(f). In determining whether
Fitten
permits admission of the evidence at issue, the military judge should include
in his consideration the effects of the type of intrusion, the length of
the prolonged insertion, the quantity of fluid extracted, the nature of
the fluid extracted, and whether there is a legally significant difference
between the nature of the fluid extracted in this case as compared to Fitten
(e.g., blood versus urine).

IV. DECISION
The first certified question is answered in
the affirmative. Accordingly, the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed, and the case is returned to
the Judge Advocate General of the Navy for remand to the court-martial
for trial on the merits. Upon appropriate motion at such trial, the military
judge shall consider the issues raised by the second certified question
in light of this opinion.


Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Scheduled
Hearings
