                         UNITED STATES, Appellee

                                         v.

       Walter S. STEVENSON, Hospital Corpsman Third Class
                      U.S. Navy, Appellant

                                  No. 06-0934

                        Crim. App. No. 200301272

       United States Court of Appeals for the Armed Forces

                         Argued October 24, 2007

                       Decided February 14, 2008

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

                                     Counsel

For Appellant: Lieutenant Commander M. Eric Eversole, JAGC, USN
(argued); Lieutenant A. M. Cooper, JAGC, USN.

For Appellee: Lieutenant Derek D. Butler, JAGC, USN (argued);
Major Brian K. Keller, USMC (on brief); Commander Paul C.
LeBlanc, JAGC, USN, and Major Wilbur Lee, USMC.

Amicus Curiae for Appellant: Christopher J. Eckhart (law
student) (argued); Joel M. Schumm, Esq. (supervising attorney)
(on brief) -- for the Indiana University School of Law,
Indianapolis.

Military Judge:    Raymond Kreichelt



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Stevenson, No. 06-0934/NA


      Judge BAKER delivered the opinion of the Court.

      Appellant   was   tried   by   a       general   court-martial    convened

with members at Naval Station Great Lakes, Illinois.                    Contrary

to his pleas, he was convicted of rape, in violation of Article

120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920

(2000).     The court members sentenced him to confinement for

three years, and a dishonorable discharge.                   The sentence was

approved by the convening authority, and affirmed by the United

States    Navy-Marine   Corps   Court        of   Criminal   Appeals.     United

States v. Stevenson (Stevenson I), 52 M.J. 504, 510 (N-M. Ct.

Crim. App. 1999).       On Appellant’s petition we granted review of

the following questions:

I.    WHETHER NCIS AND VA HOSPITAL PERSONNEL VIOLATED THE FOURTH
      AMENDMENT BY SEIZING APPELLANT’S BLOOD AND SEARCHING IT FOR
      DNA EVIDENCE WITHOUT PROBABLE CAUSE OR A SEARCH WARRANT
      ISSUED ON PROBABLE CAUSE?

II.   IF THIS COURT SUPPRESSES THE EVIDENCE FROM THE WARRANTLESS
      SEARCH AND SEIZURE, SUPRA, DID THE LOWER COURT ERR BY
      FAILING TO ADDRESS OR SUPPRESS BLOOD AND DNA EVIDENCE
      GAINED BY A SEARCH WARRANT ISSUED ON TAINTED EVIDENCE AND
      MATERIAL MISREPRESENTATIONS?

      Based on the reasoning below, we hold that the actions of

the Naval Criminal Investigative Service (NCIS) and the

Department of Veterans’ Affairs (VA) violated Appellant’s Fourth

Amendment right against unreasonable search and seizure, and we




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United States v. Stevenson, No. 06-0934/NA


remand the second issue to the court below for further factual

determination.1

                                I.

     This case involves several blood draws.    In November 1997,

NCIS investigators determined that Appellant was a possible

suspect in a November 1992 rape of a military dependent in

Hawaii, where Appellant had been stationed.    At the time of the

investigation, Appellant was assigned to the temporary

disability retired list (TDRL), and was being treated for

diabetes at the VA hospital in Memphis, Tennessee.   As part of

his treatment, Appellant routinely had his blood drawn by VA

medical personnel for the purpose of treatment.   Appellant was

aware of the purpose of the draws and consented to them.

     During the course of their investigation, NCIS agents

learned of the treatment that Appellant was receiving from the

VA, including the periodic blood draws.   As a result, NCIS

requested that VA medical personnel draw an additional vial so

that law enforcement authorities might have that blood tested to

identify Appellant’s DNA.   This request was vetted by lawyers at

the VA, who concluded that the blood could be drawn for and

searched by NCIS.   As a result, at Appellant’s routine,

consensual blood draw on June 3, 1998, the VA staff drew an

1
  Oral argument in this case was held at the Indiana University
School of Law, Indianapolis, as a part of Project Outreach.


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United States v. Stevenson, No. 06-0934/NA


additional vial without informing Appellant of the purpose for

doing so.   This sample was sent to the United States Criminal

Investigations Laboratory and tested to determine the DNA

composition of the blood for law enforcement purposes.   It is

this blood draw that is implicated by the first assigned issue.

     At trial, the military judge excluded from evidence the

vial of blood drawn and tested without Appellant’s permission.

NCIS agents then sought and obtained a warrant from a United

States federal magistrate in Tennessee, permitting NCIS agents

to obtain an additional vial of Appellant’s blood.   It is this

request and warrant that are at the root of Appellant’s second

assigned issue.

     This is the second time this Court has considered

Appellant’s case.   In United States v. Stevenson (Stevenson II),

53 M.J. 257 (C.A.A.F. 2000), we held that Military Rule of

Evidence (M.R.E.) 312(f) applied to persons on the TDRL, and

remanded the case for further proceedings to determine whether,

in light of United States v. Fitten, 42 M.J. 179 (C.M.A. 1995),

“the prolonged intrusion of the needle in [Appellant’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).”   Stevenson II, 53 M.J. at

260-61.


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United States v. Stevenson, No. 06-0934/NA


     On remand the military judge found as a matter of fact and

law that: (1) Appellant’s blood draw was motivated by medical

personnel concerned with Appellant’s diabetic condition; (2) the

blood draw was not directed by law enforcement officials, but

rather was part of his medical treatment by the VA; (3) the

blood draw was conducted by medical personnel in a VA hospital

environment; (4) the NCIS request for a blood sample had no

impact on the initial needle intrusion and did not cause any

additional intrusion; (5) the NCIS request for a blood sample

resulted in a de minimis impact by prolonging the time the

needle was in Appellant’s arm only by a few seconds; and (6) the

initial blood draw was for a valid medical purpose and necessary

to preserve the health of a servicemember.   The military judge

also found that, since the blood was drawn for a valid medical

purpose, M.R.E. 312 did not “limit the purposes to which the

seized evidence may be put or used.”   The United States Navy-

Marine Corps Court of Criminal Appeals affirmed the military

judge’s findings of fact and conclusions of law.   United States

v. Stevenson (Stevenson III), 65 M.J. 639, 645 (N-M Ct. Crim.

App. 2006).

     “We review the denial of a motion to suppress for an abuse

of discretion.”   United States v. Rader, 65 M.J. 30, 32

(C.A.A.F. 2007) (citing United States v. Khamsouk, 57 M.J. 282,

286 (C.A.A.F. 2002)).   Findings of fact are affirmed unless they


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United States v. Stevenson, No. 06-0934/NA


are clearly erroneous; conclusions of law are reviewed de novo.

United States v. Flores, 64 M.J. 451, 454 (C.A.A.F. 2007)

(citing Khamsouk, 57 M.J. at 286).

                                II.

     On appeal, Appellant argues that the Government did not

possess a special health care need under M.R.E. 312 sufficient

to permit the violation of his Fourth Amendment right through

the warrantless seizure and search of his blood for DNA testing.

To hold otherwise, Appellant argues, would be to eliminate any

distinction between the military’s interest in the provision of

health care, and a general law enforcement interest.   The

Government responds that the drawing of Appellant’s blood at the

VA hospital represented a de minimis intrusion justified by the

Government’s necessary interest in the health of its

servicemembers in order to determine their fitness for duty, and

therefore did not violate Appellant’s Fourth Amendment rights.

     The threshold question is whether Appellant had an

expectation of privacy in his blood that required the Government

to obtain a warrant prior to seizing and searching that blood

for law enforcement purposes.   Ordinarily, as the Supreme Court

has held, a person has a reasonable expectation of privacy in

his blood.   See Skinner v. Railway Labor Executives’ Ass’n, 489

U.S. 602, 616 (1989).   Furthermore, while military service

necessitates a reduced expectation of privacy in bodily fluids


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United States v. Stevenson, No. 06-0934/NA


with respect to drug testing, servicemembers otherwise generally

retain their Fourth Amendment right against unreasonable search

and seizure.   See Murray v. Haldeman, 16 M.J. 74, 81 (C.M.A.

1983); Committee for GI Rights v. Callaway, 518 F.2d 466, 476

(D.C. Cir. 1975).

     Of course, within the context of bodily fluids, there are a

number of exceptions to the warrant requirement as well as

circumstances that would negate the need for a warrant.   These

include situations where there exists both probable cause and

the need to prevent the loss of evidence, see Schmerber v.

California, 384 U.S. 757, 770-71 (1966), where the search is

necessary to save someone’s life and the evidence is in plain

view, see Mincey v. Arizona, 437 U.S. 385, 392-93 (1978), and

where the government demonstrates “‘special needs, beyond the

normal need for law enforcement,’” see Chandler v. Miller, 520

U.S. 305, 313-14 (1997) (citation omitted).   In addition, M.R.E.

312(f), rather than being an exception to the warrant

requirement, authorizes the admission of evidence that was

developed incident to a valid medical purpose.

     M.R.E. 312(f) states:

     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



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United States v. Stevenson, No. 06-0934/NA


     unlawful search or seizure within the meaning of Mil. R.
     Evid. 311.

The specific question raised by this case is whether Appellant

had an objectively reasonable expectation of privacy in his

bodily integrity (i.e., DNA), in light of M.R.E. 312(f).     But

for this Court’s application of Fitten in Stevenson II, the

answer would be straightforward.

     The Drafters’ Analysis of the Military Rules of Evidence

states that M.R.E. 312(f) was intended to make “it clear that

the Armed Forces retain their power to ensure the health of

their members.”   Manual for Courts-Martial, United States,

Analysis of the Military Rules of Evidence app. 22 at A22-20

(2005 ed.) [hereinafter Drafters’ Analysis].     The Drafters’

Analysis continues, “[a] procedure conducted for valid medical

purposes may yield admissible evidence.      Similarly, Rule 312

does not affect in any way any procedure necessary for

diagnostic or treatment purposes.”     Id.   Thus, M.R.E. 312(f)

permits the admission of evidence discovered during the regular

course of medical treatment.

     M.R.E. 312(f) is intended to ensure the provision of

essential medical care when necessary to preserve the health of

servicemembers.   The rule permits that evidence found or seized

in the course of medical treatment, which is to say, that is

incidental to medical treatment, is not subject to suppression.



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United States v. Stevenson, No. 06-0934/NA


In this way, the rule orients the government to the provision of

medical assistance to the servicemember, without consideration

of the legal requirements (and potential delays) that might

pertain to the law enforcement collection of evidence.   However,

the rule is not intended to serve as cover and concealment for

law enforcement inquiries or as an exception to otherwise

applicable Fourth Amendment requirements.    Therefore, the rule

does not serve to permit additional searches and seizures that

are not incident to treatment.   Whether such additional searches

are admissible is a question of Fourth Amendment analysis.

     Nor is there any indication that either Congress, through

delegated authority to the President under Article 36, UCMJ, 10

U.S.C. § 836 (2000), or the President through promulgation of

M.R.E. 312 and M.R.E. 313 intended to abolish servicemembers’

expectation of privacy in blood drawn in furtherance of military

preparedness.   To the contrary, 10 U.S.C. § 1565a (2000)

(governing the use of DNA collected for casualty identification)

reflects considerable concern about the handling of DNA.    In

this case, for these reasons, M.R.E. 312(f) is not applicable to

the second vial of blood drawn at the VA hospital, and does not

otherwise obviate Appellant’s reasonable expectation of privacy.

The ruling of the United States Navy-Marine Corps Court of

Criminal Appeals with respect to the exclusion of the vial of

blood drawn at the VA hospital is therefore reversed.


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United States v. Stevenson, No. 06-0934/NA

       In fairness to the military judge, the lower court and the

parties, the clarity of this conclusion was not forecast by this

Court’s discussion of Fitten in Stevenson II.      In Fitten, the

appellant -- admitted to the emergency room because of erratic

behavior apparently due to drug use -- underwent an involuntary

catheterization in order to determine the cause of his

condition, so as to inform subsequent treatment.     42 M.J. at

180.   The appellant’s command requested that, during the

procedure, an additional sample of the urine be collected, and

given to the command.   Id.     This Court upheld the admission of

the urine test under M.R.E. 312, finding among other things that

the catheterization caused only a de minimis intrusion, which

did not “shock the conscience.”     Id. at 182.   The de minimis

nature of the search was one of a totality of circumstances

relied on by the Court.   Id.     However, in Stevenson II the de

minimis nature of the search was referenced as the conclusion of

the Court.   53 M.J. at 260.    In turn, the Court of Criminal

Appeals on remand referred to this conclusion as the holding in

Fitten.    Stevenson II, 65 M.J. at 644-45.

       However, while the degree of an intrusion may inform

whether an objectively reasonable expectation of privacy exists,

the Supreme Court has not adopted a de minimis exception to the

Fourth Amendment’s warrant requirement.     To the contrary, the

Supreme Court has held that the need for a warrant is not


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United States v. Stevenson, No. 06-0934/NA

relieved by the use of advanced search methods that are

imperceptible to the subject of the search.    See, e.g., Kyllo v.

United States, 533 U.S. 27, 34, 40 (2001) (the use of infrared

cameras to determine the heat of a house where federal agents

suspected marijuana was being grown).    Thus, to the extent that

Fitten and Stevenson II stand for the proposition that there is

a de minimis exception to the Fourth Amendment or to M.R.E. 312,

they are overruled.

     The Fourth Amendment problem in this case was that the vial

of blood taken from Appellant and provided to NCIS represented a

distinct search and seizure from that undertaken incident to

Appellant’s treatment for diabetes.2    Whatever might be said of

Appellant’s expectation of privacy with regard to the blood draw

itself, a search for DNA was not incident to his treatment for

diabetes and was not otherwise authorized by warrant or warrant

exception.




2
  The facts of this case do not require us to reconsider the
extent, if any, to which M.R.E. 312(f) applies where, after
valid medical testing, some of the remaining blood from the same
vial was made available to the NCIS for its investigative
purposes. See Stevenson II, 53 M.J. at 260.



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United States v. Stevenson, No. 06-0934/NA

                               III.

     If the military judge erred with respect to the blood drawn

at the VA hospital, analytic emphasis turns to the second issue.

Were the DNA test results obtained from the blood draw conducted

pursuant to the search warrant admissible?    Appellant argues

that the military judge erred in upholding the magistrate’s

determination of probable cause, despite misleading statements

made to the magistrate by NCIS agents, and the withholding from

the magistrate facts relating to the exclusion of the original

blood sample.   The Government counters that, despite these

omissions and misstatements, probable cause existed for the

issuance of the warrant, and that the basis for the probable

cause was independent of the initial DNA search.   These issues

were not fully adjudicated by the lower court in light of its

determination of Issue I.

     As is often the case in the Fourth Amendment context, the

law is set but the facts are harder to fix.   The question

presented at this point is whether the third blood draw was a

product of a warrant predicated on information independent from

the evidence adduced from the blood draw at the VA hospital.

The answer necessarily entails a factual determination informed

by the sometimes competing factual recitations of the parties.

Therefore, we will remand to the lower court, for consideration

of two related questions in light of our resolution of Issue I:


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United States v. Stevenson, No. 06-0934/NA

first, to determine whether the warrant was derivative from a

source of information independent from the seizure and search of

Appellant’s blood at the VA hospital; and second, to consider

whether the warrant was valid in light of Appellant’s argument

that statements and omissions to the magistrate were not made in

good faith.

                            DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is set aside.   The record of trial is

returned to the Judge Advocate General for remand to that court

for consideration of granted Issue II in light of our resolution

of Issue I.




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United States v. Stevenson, 06-0934/NA


     EFFRON, Chief Judge (concurring in part and in the
result):

     I agree with the majority that a remand is appropriate

in this case.   I would distinguish rather than overrule

United States v. Fitten, 42 M.J. 179 (C.M.A. 1995),

however.   In Fitten, the catheterization for a valid

medical purpose under Military Rule of Evidence (M.R.E.)

312(f) was prolonged to obtain a second bottle of urine for

disciplinary purposes.   42 M.J. at 180.   Once the medical

purpose under M.R.E. 312 was fulfilled, the non-probable

cause warrantless search could be continued if it was

otherwise reasonable under the Fourth Amendment.   See

M.R.E. 314(a); M.R.E. 314(k).   The Court in Fitten

concluded that the search was reasonable under the specific

circumstances of the case.   42 M.J. at 182.

     Although Fitten considered the de minimis nature of

the intrusion a factor in its Fourth Amendment

reasonableness analysis, it did not establish a general

principle of law that all de minimis additional extractions

are inherently reasonable.   Fitten did not relieve the

government of its burden under M.R.E. 311(e) to demonstrate

reasonableness under the Fourth Amendment when a search,

initiated under M.R.E. 312(f), extends beyond the point

when the medical purpose has been fulfilled.
United States v. Stevenson, 06-0934/NA


     In the present case, the search extended beyond the

period required to fulfill a medical purpose under M.R.E.

312(f).   Therefore, even if the extension was de minimis,

the evidence obtained during the extension could be

admitted at trial only if the extended search was

reasonable under the Fourth Amendment.

     Here, the object of the law enforcement search was

DNA, a matter not involving time sensitivity or other

circumstances that might make it reasonable to extend the

search beyond the purpose of M.R.E. 312(f) without a search

authorization.   There was no risk of rapid dissipation or

loss of evidence.   The law enforcement officials in the

present case could take whatever time was necessary to

obtain a search authorization, and Appellant’s DNA would be

the same as it was on the date of his visit to the hospital

for the initial blood draw in this case.   Under these

circumstances, the extension of the search to draw the

second vial was unreasonable, and the evidence derived from

the search was inadmissible.   Under other circumstances, a

de minimis extension of an otherwise lawful intrusion might

well be reasonable under the Fourth Amendment and the

Military Rules of Evidence.    M.R.E. 311; M.R.E. 314.




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