                       UNITED STATES, Appellee

                                    v.

              Scott M. DEASE Jr., Airman First Class
                     U.S. Air Force, Appellant

                              No. 12-6001

                  Crim. App. Misc. Dkt. No. 2011-04

       United States Court of Appeals for the Armed Forces

                       Argued January 10, 2012

                         Decided May 1, 2012

BAKER, C.J., delivered the opinion of the Court, in which STUCKY and
RYAN, JJ., and COX, S.J., joined. ERDMANN, J., filed a separate
opinion concurring in the result.


                                 Counsel

For Appellant:    Captain Nathan A. White (argued).

For Appellee: Captain Joseph J. Kubler (argued); Colonel Don M.
Christensen, Lieutenant Colonel Linell A. Letendre, and Gerald
R. Bruce, Esq.

Military Judge:   Jefferson B. Brown


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Dease, No. 12-6001/AF



     Chief Judge BAKER delivered the opinion of the Court.

     Appellant brings this interlocutory appeal from a United

States Air Force Court of Criminal Appeals (CCA) ruling in favor

of the Government concerning the admissibility of evidence in a

urinalysis case.   Appellant consented to a urinalysis, but

withdrew his consent to search six days later, when the urine

sample was in Government custody but had not yet been tested.

Approximately one month later, Appellant’s urine sample was sent

to the Brooks City-Base laboratory where it tested positive for

cocaine use.   At trial, the military judge excluded all evidence

from Appellant’s urinalysis as an unlawful search under the

Fourth Amendment, Appellant having withdrawn his consent

pursuant to Military Rule of Evidence (M.R.E.) 314(e)(3).      The

military judge further ruled that all of the evidence derived

from Appellant’s subsequent statement and the search of his room

was also excluded.

     The Government appealed under Article 62, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 862 (2006), and the CCA

held that the original consent to the urinalysis was tantamount

to abandonment, and that the subsequent search of the urine

sample was therefore reasonable.       United States v. Dease, Misc.

Dkt. No. 2011-04, 2011 CCA LEXIS 317, at *10 (A.F. Ct. Crim.

App. Sept. 29, 2011).   The military judge’s ruling concerning



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United States v. Dease, No. 12-6001/AF



the admissibility of the evidence resulting from the urinalysis

and subsequent investigation was reversed, and the case was

remanded to the military judge for trial.    Appellant petitioned

this Court, and we granted review on the following issue:

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
     BY FINDING APPELLANT HAD ABANDONED HIS URINE AND HAD
     NO REASONABLE EXPECTATION OF PRIVACY WHERE APPELLANT
     CONSENTED TO THE SEIZURE OF HIS URINE AND THEN REVOKED
     CONSENT PRIOR TO THE SEARCH OF APPELLANT’S URINE.

     For the reasons set forth below, we hold that the military

judge did not abuse his discretion in ruling that Appellant had

a privacy interest in his urine sample and could withdraw

consent prior to the search.   Further, the military judge did

not abuse his discretion in concluding that the urinalysis

evidence and evidence derived from that urinalysis would not

have been subject to inevitable discovery.   Seizure and search

are not necessarily coterminous, particularly in the context of

a urinalysis case.   M.R.E. 314(e)(3) states that “[c]onsent may

be limited in any way by the person granting consent, including

limitations in terms of time, place, or property and may be

withdrawn at any time.” (Emphasis added.)    Therefore, the lower

court erred in determining that Appellant’s privacy interest in

his urinalysis sample was extinguished by his voluntary

surrender of his urine to the Government, without addressing

M.R.E. 314(e)(3).



                                 3
United States v. Dease, No. 12-6001/AF



     Accordingly, we reverse the decision of the CCA, and affirm

the ruling of the military judge.

                            BACKGROUND1

     Appellant, an E-3 in the Air Force Security Forces, was

recruited by the Air Force Office of Special Investigations

(OSI) as a confidential source (CS) on May 21, 2010.    The

military judge found that Appellant “was a ‘clean’ CS with no

known criminal activity.”   “Because [Appellant] was ‘clean,’ had

a security forces background, and had a pre-existing

relationship with [the] TARGET” of an ongoing investigation of

narcotics trafficking on Royal Air Force (RAF) Lakenheath and

RAF Mildenhall, OSI was eager to use him as a CS against the

target.   On several occasions between May 21, 2010, and June 14,

2010, Appellant met with a Special Agent (SA) Slysz from OSI to

discuss his responsibilities as a CS and to test his potential

as an undercover agent.   Those responsibilities included, among

other things, a duty to keep SA Slysz informed of his

interactions with the target while serving as a CS.

     On June 15, 2010, the target asked Appellant to pick up a

United Kingdom (UK) national by the name of Daniel Clements from

Mildenhall.   Appellant did so without informing SA Slysz.    That

same day the Suffolk Constabulary contacted the desk at RAF

1
  The facts are drawn from the military judge’s detailed findings
of fact, which the CCA did not find clearly erroneous.

                                 4
United States v. Dease, No. 12-6001/AF



Lakenheath, to notify base officials that Appellant’s vehicle

“was observed by a British CCTV system that was set up in a

district known for narcotic activity.    An unidentified passenger

in the vehicle was witnessed exiting the vehicle, appeared to

make a drug transaction, and then returned to the vehicle.”

Acting on the information provided by the Suffolk Constabulary,

a “be on the look out” alert was issued and the security forces

stopped Appellant on behalf of the local authorities as he and

his passenger, Mr. Clements, were entering RAF Lakenheath.

       Local constables searched Appellant’s vehicle, as well as

Appellant and Clements, but found no evidence of illegal drug

use.   The military judge specifically found that:

       Constable O’Brien and Constable Meddings searched the
       vehicle and both occupants. No evidence of illegal
       drug use was discovered during the searches. Neither
       constable noticed anything about their demeanor that
       suggested to them that [Appellant] or Mr. Clements
       were under the influence of narcotics. At some point,
       an Air Force military working dog walked around the
       vehicle and did not alert for drugs within the
       vehicle.

       A decorative pipe was found inside the vehicle, but there

was no evidence of its use in the consumption of illegal drugs,

and the pipe was of a type that was available in deployed

locations, and frequently purchased as a souvenir.   The

constables on the scene, feeling they did not have enough




                                  5
United States v. Dease, No. 12-6001/AF



evidence to charge the British national with a crime, drove him

home and did not pursue further investigation.

        Following the search of the vehicle and the release of

Clements, Master Sergeant (MSgt) Ortega-Llarena questioned

Appellant after first informing him of his Article 31, UCMJ,2

rights, which he waived.      Appellant explained that he was

working as a CS for OSI, and that his activity with the British

national, which had included the purchase of narcotics, had been

in furtherance of his duties with OSI.      Asked to corroborate

this story, Appellant telephoned his handler, SA Slysz.        SA

Slysz was unwilling to confirm that Appellant was a CS, but

nonetheless led MSgt Ortega-Llarena to believe that there was a

law enforcement relationship between the two.      Appellant

consented to both a urinalysis and a search of his dormitory

room.    The search of his room yielded no evidence of drug use,

and his urine sample was taken and placed in storage, pending

shipment to the Air Force Drug Testing Laboratory at Brooks-City

Base, Texas.

        Appellant was subsequently released, and no further

investigation occurred.       MSgt Ortega-Llarena, who was in charge

of the investigation, stated at trial that, had the results of




2
    10 U.S.C. § 831 (2006).

                                     6
United States v. Dease, No. 12-6001/AF



the urinalysis come back negative for drug use, he would have

closed the investigation.

     Six days later, on June 21, 2010, Appellant signed a notice

of representation, stating that he was being represented by

Captain (Capt) Joshua Goins, Area Defense Counsel (ADC), RAF

Lakenheath, UK.   This memorandum also stated:

     I request that you not interview, interrogate, or
     question me and that you not ask me to make any
     statements, oral or written, unless and until you have
     contacted my attorney and he has given express written
     consent thereto. Furthermore, any prior consent for
     search, samples or any other procedure is hereby
     withdrawn.

Emphasis added.

     Capt Goins e-mailed this memorandum to the RAF Lakenheath

Chief of Military Justice, the 48th SFS Commander, the 48th SFS

First Sergeant, MSgt Ortega-Llarena, and the local OSI office.

On July 26, Appellant’s urine sample was shipped to Brooks

laboratory and tested positive for the metabolite for cocaine.

On August 11, 2010, MSgt Ortega-Llarena received notification of

the results, and scheduled an interview with Appellant.   At 3:00

p.m. on August 26, 2010, MSgt Ortega-Llarena read Appellant his

Article 31, UCMJ, rights for suspicion of wrongful possession

and use of a controlled substance, and for making a false

official statement.   Appellant first stated that he wished to

speak to his counsel before speaking to the investigators.



                                 7
United States v. Dease, No. 12-6001/AF



However, after several unsuccessful attempts to contact his

defense counsel, Appellant indicated that he wished to make a

statement.   He again denied making an earlier false statement.

He also consented to another urinalysis, as well as a search of

his dormitory room.

     That same day, SFOI searched Appellant’s dormitory room,

discovering a packet of “Pulse Ultra,” a Spice3 derivative, as

well as an aluminum can that appeared to have been modified for

use as a smoking device, and which had residue of a green,

organic substance.    When confronted with this evidence,

Appellant made a subsequent statement admitting to cocaine use

and Spice possession and use over the course of a year, as well

as confessing to making an earlier false statement.

     At trial, Appellant moved for exclusion of all of the

evidence stemming from both his urinalysis and from the

investigation subsequent to SFOI receipt of the results of his

urinalysis, arguing that his revocation of consent made the

urinalysis an illegal search, and that the rest of the evidence

was tainted by this illegal search.


3
  “Spice” is a brand name for a synthetic cannabinoid, which has
largely become a generic term to describe any synthetic
cannabis. It is a Schedule I controlled substance under United
States federal law, as of March 1, 2011. Schedules of
Controlled Substances, 70 Fed. Reg. 11,075, 11,077, (Mar. 1,
2011) (codified at 21 C.F.R. pt. 1308.11).


                                  8
United States v. Dease, No. 12-6001/AF



       As noted above, the military judge heard arguments on the

motion, and ruled in Appellant’s favor based on M.R.E. 314.     The

Government appealed and the CCA reversed the military judge,

bringing Appellant before this Court under Article 67, UCMJ.4

                                ANALYSIS

       We review a military judge’s evidentiary ruling on a motion

to suppress for an abuse of discretion.    United States v. Ayala,

43 M.J. 296, 298 (C.A.A.F. 1995); see also United States v.

Wuterich, 67 M.J. 63, 77 (C.A.A.F. 2008) (applying the abuse of

discretion standard in an Article 62, UCMJ, appeal from an

evidentiary ruling).    There are three such rulings at issue in

this case.    We consider each in turn.

1.    Abandonment and Consent

       The first question presented is whether the military judge

abused his discretion in concluding that Appellant retained an

ongoing privacy interest in his urine sample after it was seized

and before it was searched at the Brooks lab and therefore

whether Appellant could assert this privacy interest by

withdrawing his consent to search under M.R.E. 314.   The

underlying question, and the question on which the military

judge and the lower court split, concerns the application of

M.R.E. 314(e)(3).    Should the rule inform one’s judgment


4
    10 U.S.C. § 867 (2006).

                                   9
United States v. Dease, No. 12-6001/AF



regarding Appellant’s reasonable expectation of privacy in a

urine sample that is voluntarily given, and, if so, does this

same rule permit revocation of that consent?    The military

judge’s ruling was predicated on the rule; the lower court did

not reference it.

        M.R.E. 314(e)(3) states that “Consent may be limited in any

way by the person granting consent, including limitations in

terms of time, place, or property and may be withdrawn at any

time.”    In our view, the language is plain.   “Consent . . . may

be withdrawn at any time,” provided of course that the search

has not already been conducted.    Moreover, as recognized in

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616

(1989), and United States v. Wallace, 66 M.J. 5, 8 (C.A.A.F.

2008), searches and seizures are not necessarily coterminous;

often they are not.    In this case, Appellant’s urine was seized

on June 15, 2010, but it was not searched until the end of July.

Therefore the military judge did not abuse his discretion in

concluding that consent to search could be withdrawn on June 21,

2010.

        The CCA erred in concluding that “[l]ike delivering garbage

to the curb, the appell[ant] voluntarily abandoned any

reasonable expectation of privacy in his waste urine when he

delivered it to the government for analysis,” basing its



                                  10
United States v. Dease, No. 12-6001/AF



analysis on the concept that consent equals abandonment under

California v. Greenwood, 486 U.S. 35, 39-40 (1988).    Dease, 2011

CCA LEXIS 317, at *10.   The facts in Greenwood differ from the

facts before this Court in two important ways.   First, the

defendants in Greenwood left their trash on the side of the

road, “having deposited their garbage ‘in an area particularly

suited for public inspection and, in a manner of speaking,

public consumption, for the express purpose of having strangers

take it.’”   468 U.S. at 40-41 (quoting United States v.

Reicherter, 647 F.2d 397, 399 (3d Cir. 1981)).   Conversely, as

the CCA noted, the military judge, in his ruling, held that an

individual consenting to a urinalysis has “a reasonable

expectation that the government will properly secure his sample

and prevent unauthorized access, tampering, or testing of that

sample.”    Dease, 2011 CCA LEXIS 317, at *8 (quotation marks

omitted).

     Second, while the urine itself may be of negligible

intrinsic value to either Appellant or the Government, Appellant

retains a privacy interest in the sample, due to its nature and

its evidentiary value.   Skinner, 489 U.S. at 616.    Unlike

contraband, the evidentiary value of which is ascertainable to

the naked eye, the evidentiary value of the urine sample is only

ascertainable after chemical analysis.   The United States



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United States v. Dease, No. 12-6001/AF



Supreme Court recognized this aspect of the nature of bodily

fluid samples in Skinner (holding that there are two separate

privacy interests at stake in the procurement and subsequent

testing of bodily fluids).   Id.    The evidentiary nature of the

urine or blood sample is akin to that of a computer hard drive,

whose evidentiary value is unknown until it is examined by

forensic experts.    This Court held in Wallace that, like the

blood samples in Skinner, the seizure and search of a computer

hard drive constitutes two separate and distinct intrusions into

privacy interests.   Wallace, 66 M.J. at 8 (citing Skinner, 489

U.S. at 616, and analogizing the computer hard drive to bodily

fluids).

     Finally, M.R.E. 314(e)(3), by codifying a right to revoke

consent, when viewed in light of the separate privacy interests

laid out by the United States Supreme Court in Skinner, implies

a continued privacy interest maintained by Appellant in the

untested urine sample.5   As noted by the military judge in his

ruling, the M.R.E., by allowing the withdrawal of consent, is

5
  While the Supreme Court has not specifically ruled on the
question of whether there is a continuation of a Fourth
Amendment privacy interest, most of the federal courts of
appeals have held that consent to search may be revoked if the
person giving consent effectively withdraws the consent prior to
the completion of the search. See, e.g., United States v.
Fuentes, 105 F.3d 487, 489 (9th Cir. 1997); United States v. Ho,
94 F.3d 932, 934 (5th Cir. 1996); United States v. Carter, 985
F.2d 1095, 1097 (D.C. Cir. 1993); Warrantless Searches and
Seizures, 37 Geo. L. J. Ann. Rev. Crim. Proc. 39, 96 (2008).

                                   12
United States v. Dease, No. 12-6001/AF



not intended to allow a servicemember to reclaim abandoned

property, but rather to protect a privacy interest.

      In this case, abandonment and consent represent two

separate and distinct legal principles.   Appellant did not

abandon his urine, only to have it later collected and tested;

he consented to the search of his urine for evidence of drug

use, and later withdrew that consent.

2.   Inevitable Discovery

      Having found that the military judge did not abuse his

discretion in determining that Appellant withdrew his consent to

search, the next question we must address is whether he abused

his discretion in ruling that the doctrine of inevitable

discovery should not apply.   United States v. Kaliski, 37 M.J.

105, 109 (C.M.A. 1993) (citing United States v. Terzado-Madruga,

897 F.2d 1099, 1112 (11th Cir. 1990)).    In order to find an

abuse of discretion, we must find that the military judge

committed a clear error in his conclusions.   United States v.

Houser, 36 M.J. 392, 397 (C.M.A. 1993).

      The doctrine of inevitable discovery is an exception to the

exclusionary rule of the Fourth Amendment.    Nix v. Williams, 467

U.S. 431, 444 (1984).   M.R.E. 311(b)(2) codifies this doctrine,

stating that “Evidence that was obtained as a result of an

unlawful search or seizure may be used when the evidence would



                                13
United States v. Dease, No. 12-6001/AF



have been obtained even if such unlawful search or seizure had

not been made.”

     The military judge concluded that “[t]his was not a

situation where SFOI possessed or were actively pursuing

evidence or leads that would inevitably have led to the

discovery of the evidence.”   Next, the military judge concluded

that there was no probable cause to search the urine collected

on June 15, or, in other words, to perform a urinalysis without

Appellant’s consent:

     There is nothing to suggest that the probable cause,
     if there was any, would extend beyond the vehicle to
     A1C Dease’s urine. When one factors in that A1C Dease
     had a plausible explanation as to why he was near a
     potential drug transaction and use of drug, the
     evidence was insufficient to support a probable cause
     search of the accused’s urine.

     Finally, the military judge concluded that “the government

failed to meet their burden of showing the degree of certainty

required by the law to find that the lawful search of A1C

Dease’s urine would have been inevitable.”

     The record indicates that the military judge relied upon

multiple sources of evidence in coming to the conclusion that

there was no probable cause, and, even if there were probable

cause, no independent attempt to pursue an investigation that

would have led to the application to a magistrate for a warrant.

Absent probable cause to suspect the evidence of illegal drug



                                14
United States v. Dease, No. 12-6001/AF



use in Appellant’s urine, there could be no application of the

doctrine of inevitable discovery in this case.   Wallace, 66 M.J.

at 10 (citing United States v. Owens, 51 M.J. 204, 210 (C.A.A.F.

1999) (upholding the legality of a warrantless search because of

overwhelming probable cause plus the likelihood that routine

police procedure would have made discovery of the evidence

inevitable)); United States v. Kozak, 12 M.J. 389, 394 (C.M.A.

1982).

     [A]fter an accused challenges the legality of a
     search, the prosecution must, by a preponderance of
     the evidence, establish to the satisfaction of the
     military judge that when the illegality occurred, the
     government agents possessed, or were actively
     pursuing, evidence or leads that would have inevitably
     led to the discovery of the evidence and that the
     evidence would inevitably have been discovered in a
     lawful manner had not the illegality occurred.

Kozak, 12 M.J. at 394.

     The military judge’s finding of fact that there was no

probable cause, nor any parallel investigation that would lead

to discovery of the evidence, is not clearly erroneous.   At no

point was the Government conducting a parallel investigation.

Further, given Appellant’s role as a “clean” CS, the military

judge did not abuse his discretion in concluding that the

Government had not met its burden of showing probable cause on

the basis of the CCTV video alone, showing Appellant and his

vehicle in an area of known narcotics trafficking accompanied by



                               15
United States v. Dease, No. 12-6001/AF



a stranger who appeared to purchase narcotics.    Therefore we

uphold the military judge’s ruling that the evidence obtained

through the analysis of Appellant’s urine must be excluded.

3.   Derivative Evidence

      Finally, we turn to the military judge’s ruling on

derivative evidence.   Having determined that the doctrine of

inevitable discovery did not apply to the urinalysis evidence,

the military judge excluded the evidence stemming from

Appellant’s August 26, 2010, interview and the search of his

dormitory on the same date.   Again, we examine the military

judge’s decision for an abuse of discretion.    Kaliski, 37 M.J.

at 109.   Appellant consented to the search of his dormitory room

and willingly gave a statement on August 26, 2010, after MSgt

Ortega-Llarena informed him of the results of his urinalysis.

However, the military judge determined that Appellant’s consent

on August 26, 2010, was not sufficiently attenuated from the

prior unlawful search of Appellant’s urine.    Specifically, the

military judge concluded “that the 26 August 2010 confession and

the results of the 26 August 2010 search of [Appellant’s]

dormitory room are derivative evidence of the improper search of

the accused’s urine and should be suppressed.”

      “[G]ranting of consent to search may sufficiently attenuate

the taint of a prior violation.”     United States v. Conklin, 63



                                16
United States v. Dease, No. 12-6001/AF



M.J. 333, 338 (C.A.A.F. 2006).   The threshold question is

whether consent is voluntary, without influence of the prior

unlawful search.    This question is examined in light of this

Court’s ruling in Conklin, and the United States Supreme Court’s

language in Brown v. Illinois, 422 U.S. 590, 604 (1975) (finding

an interval of less than two hours between the illegal arrest

and the later incriminating statement insufficient to attenuate

the taint).   In order to sufficiently attenuate the taint of a

prior violation, a court must examine the consent with respect

to three factors:   (1) the temporal proximity of the illegal

conduct and the consent; (2) the presence of intervening

circumstances; and (3) the purpose and flagrancy of the original

unlawful conduct.   Conklin, 63 M.J. at 338 (citing Brown, 422

U.S. at 603-04).    None of these three factors is dispositive of

attenuating the taint of the original wrongdoing, but rather

they are examined in aggregate to determine the effect of an

appellant’s consent.   Brown, 422 U.S. at 603-04.

     Examining the first factor, the military judge found that

the time between the revocation of consent and subsequent

consent for search was approximately two months.    This

significant amount of time contrasts with the facts of Conklin,

in which only less than three hours had elapsed between the

illegal search and the consent of the appellant.    Conklin, 63



                                 17
United States v. Dease, No. 12-6001/AF



M.J. at 339.    However, the actual illegal conduct -- the testing

of the urine sample -– did not occur until late July.

Additionally, after revoking consent in June, there is no

indication that Appellant knew his urine sample was to be tested

until he was presented with the positive results on August 26,

2010.    The fact that the illegal testing of the urine sample and

the August 26, 2010, consent to a second urinalysis and search

of Appellant’s dorm room were separated by a month may tip this

factor in favor of the Government.     However, we are mindful of

the fact that Appellant was not confronted with the results of

the illegal conduct -– the first urinalysis -– until mere hours

before giving consent on August 26, 2010, to the subsequent

searches.    Therefore, this factor does not weigh heavily in

favor of the Government.

        Factors two and three of the attenuation test fall more

clearly on the side of Appellant.      As noted by the military

judge, it is uncontroverted that there were no intervening

circumstances of significance to the investigation between the

June 21, 2010, revocation of consent and the events of August

26, 2010.    In fact, MSgt Ortega-Llarena stated that, absent the

results of the urinalysis, the Government would not have pursued

this investigation in any way.    As there was no further

investigation into the Appellant’s alleged drug use between the



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United States v. Dease, No. 12-6001/AF



submission of the urine sample and the consent, there could have

been no new information that could qualify as an intervening

circumstance.    The military judge therefore did not abuse his

discretion in ruling that factor two supports exclusion of the

evidence.

        Finally, examining the third factor, while there appears to

be no willful wrongdoing on the part of the investigators, the

military judge held that, once Appellant’s revocation of consent

was sent out via e-mail on June 21, 2010, the Government should

have known that consent had been withdrawn, and negligently

failed to act accordingly.    This factor, along with factor two,

favors Appellant.

        In this case, the military judge applied the correct law in

addressing derivative evidence.    Further, examined in aggregate,

the military judge’s application of the Conklin factors supports

exclusion of the evidence stemming from the events of August 26,

2010.    Therefore, the military judge did not abuse his

discretion in excluding Appellant’s statement and the results of

the search of Appellant’s dormitory room, as derivative of the

Government’s earlier search of Appellant’s urine seized on June

15, 2010.




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United States v. Dease, No. 12-6001/AF



                           CONCLUSION

     Accordingly, the decision of the United States Air Force

Court of Criminal Appeals is reversed.    The case is returned to

the Judge Advocate General of the Air Force for remand to the

military judge for further proceedings.




                               20
United States v. Dease, No. 12-6001/AF


     ERDMANN, Judge (concurring in the result):

     I concur with the majority’s holding that the military

judge correctly determined that Dease revoked his consent to

search his urine pursuant to M.R.E. 314(e)(3), and that the CCA

erred when it concluded that Dease abandoned any reasonable

expectation of privacy in his urine sample when he voluntarily

provided the sample for chemical analysis.   I also agree with

the majority’s conclusion that under the circumstances of this

case, the military judge correctly suppressed the results of the

chemical analysis and all derivative evidence and therefore

concur in the majority’s reversal of the CCA’s decision.

     I do not agree, however, with the majority’s position that

“[t]he underlying question, and the question on which the

military judge and the lower court split, concerns the

application of M.R.E. 314(e)(3).”   United States v. Dease, __

M.J. __ (9) (C.A.A.F. 2012).    I view the underlying question,

and the question on which the military judge and the lower court

split, as whether Dease retained a reasonable expectation of

privacy in his urine sample after voluntarily providing the

sample for chemical analysis.   Consistent with the Supreme

Court’s holding in Skinner v. Railway Labor Executives’ Ass’n,

489 U.S. 602 (1989) (there are separate privacy interests in the

seizure and in the subsequent testing of blood), the military

judge correctly concluded that Dease did retain a reasonable
United States v. Dease, No. 12-6001/AF


expectation of privacy in his urine sample.   Accordingly, the

military judge determined that pursuant to M.R.E. 314(e)(3)

Dease could and did withdraw his consent to search his urine.1

     In contrast, the CCA determined that Dease did not retain a

reasonable expectation of privacy in his urine sample.   Although

the CCA did not “bas[e] its analysis on the concept that consent

equals abandonment”;2 citing California v. Greenwood, 486 U.S. 35

(1988), the CCA analogized consensually providing a urine sample

for the purpose of chemical analysis with delivering trash to

the curb.3   By abandoning any reasonable expectation of privacy

in his waste urine when he voluntarily provided a urine sample

for chemical analysis, the CCA determined that Dease’s Fourth

Amendment rights were not violated and did not find it necessary

to address M.R.E. 314(e)(3).4




1
  Footnote 5 of the majority opinion implies some significance to
what several of the Circuit Courts of Appeals have said on the
issue of consent. In my view, the Circuit Courts of Appeals
decisions concerning revocation of consent do not inform our
analysis of a revocation of consent pursuant to M.R.E.
314(e)(3).
2
  Dease, __ M.J. at __ (10-11).
3
  United States v. Dease, Misc. Dkt. No. 2011-04, 2011 CCA LEXIS
317, at *10 (A.F. Ct. Crim. App. Sep. 29, 2011).
4
  Id.




                                 2
United States v. Dease, No. 12-6001/AF


     I view this as a straightforward case:5    First, did Dease

retain a reasonable expectation of privacy in his urine sample

that he voluntarily provided to the Government for chemical

analysis (i.e., do Fourth Amendment protections apply)?    Because

there is no legally significant difference between the search

and seizure of blood and the search and seizure of urine, the

holding in Skinner says yes.     Second, did the military judge

abuse his discretion in determining that Dease could and did

revoke his consent to search his urine pursuant to M.R.E.

314(e)(3)?   The answer is no.   Finally, did the military judge

err in determining that the urinalysis results and all

derivative evidence were inadmissible?    The answer to that

question is no as well.   Accordingly, while I concur with the

reversal of the CCA’s decision, I do not join that portion of

the majority’s analysis noted above.




5
  I do not agree with the majority that somehow M.R.E. 314(e)(3)
“inform[s] one’s judgment regarding Appellant’s reasonable
expectation of privacy in a urine sample that is voluntarily
given” or that the rule “by codifying a right to revoke consent,
when viewed in light of the separate privacy interests laid out
by the United States Supreme Court in Skinner, implies a
continued privacy interest maintained by Appellant in the
untested urine sample.” Dease, __ M.J. at __ (9-10, 12).
M.R.E. 314(e)(3) does neither.

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