A.F.Ct.Crim.App.: Forced catherization violated MRE 312(f) and exclusionary rule applied

Appellant was a JAG officer under medical treatment taking drugs, but those drugs interacted with alcohol and led to a DUI and a charge of being drunk on duty. A blood sample was obtained by medical personnel. Her urine, however, was forceably taken by catheter after a commanding officer ordered it done. The urine sample wasn’t properly obtained under M.R.E. 312(f). This is a difficult good faith exception and exclusionary rule question, and the court struggles with it and concludes the exclusionary rule should be applied. United States v. Khalji, 2019 CCA LEXIS 38 (A.F. Ct. Crim. App. Jan. 31, 2019) (memorandum):

In conducting the balancing test set forth in Mil. R. Evid. 311(a)(3), the military judge concluded that “[l]ittle can be gained, and much would be lost, if ER nurses second-guessed doctors or themselves out of fear they were violating a patient’s Fourth or Fifth Amendment rights.” But the military judge—despite assuming that the search was invalid for his exclusionary rule analysis—failed to consider that such a chilling effect would have been avoided had the involuntary catheterization been medically warranted. Indeed, that is the very purpose of Mil. R. Evid. 312(f). The military judge also failed to consider the military’s willingness to balance other interests, such as a servicemember’s need for treatment, against society’s interest in prosecuting known drug abuse. See Air Force Instruction (AFI) 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program, ¶ (8 Jul. 2014) (a servicemember’s voluntary disclosure of drug use may not be adversely used against them). Similarly, the Supreme Court has recognized the societal interest in protecting against unwarranted bodily intrusions, describing them as intrusions into the “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 758-60 (1985) (citing Schmerber v. California, 384 U.S. 757, 767 (1966)). The decision to invasively seize a servicemember’s bodily fluids against her will is not one which should be made without ensuring there is a lawful reason to do so. Based on the totality of facts and circumstances in this case, we find that exclusion of the evidence from the search and seizure of Appellant’s urine is appropriate in Appellant’s case. Weighing the factors set forth in Mil. R. Evid. 311(a)(3), we find that the loss of a single specification of wrongful use of cocaine is worth the appreciable deterrence of future unlawful searches

This case is unique, and the application of the exclusionary rule was difficult. It should have been published.

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