N-M: Four hour search incident in sex assault investigation unreasonable

Four hour search incident for a sexual assault investigation was unreasonable. Consent was also rejected. Trial judge ruled against government, and this was an interlocutory appeal. United States v. Murray, 2012 CCA LEXIS 308 (N.-M. Ct. Crim. App. August 21, 2012):

Although the military judge placed undue weight on the safety concerns of the SILA [search incident to lawful apprension] exception over the evidentiary concerns, he nevertheless also discussed the risk that evidence might disappear, and that those circumstances could justify a search, citing to Schmerber v. California, 384 U.S. 757 (1966). He concluded that those considerations do not apply to this situation in which the appellee was subjected to a four-hour SANE [sexual assault nurse examination] exam conducted by a nurse hours after apprehension under a dubious consent pretext, and that such a search was well-outside the scope of Mil. R. Evid. 314(g)’s exception to the warrant requirement. The trial judge perhaps should have discussed more thoroughly the “destructible evidence” justification for the SILA exception to the warrant requirement, and articulated more careful consideration of whether the evidence seized during the SANE exam was “destructible evidence” within the meaning of Mil. R. Evid. 314(g). Nonetheless, we do not find his conclusion of law that the SANE exam was outside the scope of the SILA exception to be incorrect. Ayala, 43 M.J. at 298.

Nothing in the record indicates that, at the time the SANE examination was conducted, law enforcement personnel believed that the physical examination of the appellee was actually being conducted as a search incident to his apprehension. Special Agent (SA) Harris, the NCIS agent waiting at the hospital for the completion of the exam, believed that it was a consent search, with the consent to be obtained by the SANE nurse conducting the exam. AE I, Attachment 4 at 14-15. Likewise, the SANE nurse testified at the motions hearing that it was a consent exam, and that she was “required to have either the suspect’s consent or … [the] equivalent to a warrant from NCIS to gather the evidence.” Record at 23. If the appellee had not consented, LCDR McMullen would have “stepped out of the room, and … gone to NCIS and said, “I cannot proceed without that search order.” Id. at 30, 64-65.

Obviously, the nurse’s understanding of the basis for the search is in no way dispositive of its admissibility. For that matter, the NCIS agent’s understanding of the basis of the search is not necessarily dispositive. The fact that the SANE exam was conducted with the nurse and the agent believing they had the appellee’s consent does not necessarily preclude its admissibility as a search incident to the appellee’s apprehension. Nevertheless, what the military judge was faced with, and what we are now faced with, is a two-fold problem.