Blood draw during hospital stay for investigative purposes was a Fourth Amendment violation

Defendant was in a VA hospital for treatment for diabetes, and he was a suspect in a rape. Defendant was subject to blood draws for treatment, and NCIS requested an additional blood draw for criminal purposes. That search violated the Fourth Amendment and M.R.E. 312(f) because it was not for military preparedness. United States v. Stevenson, 2008 CAAF LEXIS 230 (C.A. A.F. February 14, 2008):

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 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. 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.

Note: This is the first noteworthy military search case in a while, and the military courts often have studious and interesting opinions. Later today, we’ll add the military courts to the links on the right side. Say what you will about military justice,* my one experience in a court martial was great because the trial judge was one of the best I have ever seen, and the prosecutor was consummately professional.

* “Military justice is to justice what military music is to music.”
— Groucho Marx