Air Force: Military personnel lose any reasonable expectation of privacy in a urine sample given for testing

Military personnel have a lesser expectation of privacy when they give a urine sample for testing. Here, defendant consented but attempted to withdraw his consent before the testing actually occurred. Once in government control, a member of the military loses any reasonable expectation of privacy in it. United States v. Dease, 2011 CCA LEXIS 317 (A.F. Ct. Crim. App. September 29, 2011):

… Just as the lapse in exigent circumstances does not revive an expectation of privacy in a blood sample taken by the government, a revocation of consent to seize a urine specimen does not revive an expectation of privacy in a urine sample surrendered to the government.

In finding that a reasonable expectation of privacy in a urine sample continues after it has been provided to the government for testing, the military judge states that one who provides a urine specimen has “a reasonable expectation that the government will properly secure his sample and prevent unauthorized access, tampering, or testing of that sample.” In support of this conclusion the military judge analogizes the privacy interest in a bottle of urine to that in a computer. But we find the analogy incorrect. Unlike a computer hard drive in which one might reasonably retain some possessory and privacy interest after voluntarily providing it to the government for analysis, urine is by definition a waste product which will ultimately be destroyed and in which no continuing reasonable expectation of privacy exists. See Venner, 367 A.2d at 956 (The accused could “not have had an ‘expectation … that society [would be] prepared to recognize as ‘reasonable’ a property right in human excreta for the simple reason that human experience is to abandon it immediately.”).

While society recognizes a reasonable expectation of privacy in the act of urination and the urine excreted under normal circumstances, we find that this reasonable expectation does not survive voluntary surrender of urine waste to government control for analysis. We agree with the military judge that at the time he provided the sample the appellee could reasonably expect his urine sample to be secured against unauthorized access. But this alone is insufficient to maintain a reasonable expectation of privacy subject to Fourth Amendment protection: the appellee should also have reasonably expected the sample to be tested at any time, to be incrementally destroyed during testing, and to be ultimately discarded.

Under the circumstances of this case, we find no continuing reasonable expectation of privacy in the sample and, therefore, no continuing Fourth Amendment protection which the appellee’s revocation of consent could reclaim. As stated above, a threshold requirement for Fourth Amendment protection against unreasonable searches is a subjective expectation of privacy in the item or area to be searched that society recognizes as objectively reasonable. In the case of waste urine provided to the government for testing, we find that this threshold requirement is not met. Like delivering garbage to the curb, the appellee voluntarily abandoned any reasonable expectation of privacy in his waste urine when he delivered it to the government for analysis. See Greenwood, 486 U.S. at 39-40; Venner, 367 A.2d at 956.