United States v. Repp

23 M.J. 589
CourtU S Air Force Court of Military Review
DecidedOctober 6, 1986
DocketACM 25211
StatusPublished
Cited by3 cases

This text of 23 M.J. 589 (United States v. Repp) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Repp, 23 M.J. 589 (usafctmilrev 1986).

Opinion

DECISION

HODGSON, Chief Judge:

The case before us is one of first impression and involves evidence obtained from a body view. The applicable evidentiary rule states:

RULE 312. BODY VIEWS AND INTRUSIONS
(a) GENERAL RULE. Evidence obtained from body views and intrusions conducted in accordance with this rule is admissible at trial when relevant and not otherwise inadmissible under these rules.
(b) VISUAL EXAMINATION OF THE BODY
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(2) INVOLUNTARY. An involuntary display of the unclothed body, including a visual examination of body cavities, may be required only if conducted in a reasonable fashion and authorized under the following provisions of the Military Rules of Evidence: ____ searches incident to lawful apprehension under Mil.R.Evid. 314(g) [Emphasis added].
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(d) EXTRACTION OF BODY FLUIDS. Nonconsensual extraction of body fluids, including blood and urine, may be made from the body of an individual pursuant to search warrant or a search authorization under Mil.R.Evid. 315____ Involuntary extraction of body fluids under this rule must be done in a reasonable fashion by a person with appropriate medical qualifications.

Mil.R.Evid. 312 has no counterpart in the Federal Rules of Evidence and it represents an attempt by the drafters of the Military Rules of Evidence to merge the prior case law touching on self-incrimination1 with the right to freedom from unreasonable searches.

I

The appellant is a rated Air Force officer who stands convicted of using heroin. On appeal, as at trial, he challenges the methods by which his heroin use was discovered. In general the essential facts are undisputed. The evidence revealed that on 1 March 1985, civilian law enforcement officers were conducting a “stake-out” of the residence of a known heroin addict who was suspected of being a drug dealer. While the police were watching the house, approximately eight to ten individuals ar[591]*591rived and left shortly after completing a “transaction” of some type. Later, between 1200 and 1300 hours, a bright red Corvette with Oregon tags arrived driven by an individual described as 6'2", slender with sandy brown hair and wearing a green military uniform, i.e., a “jump suit with colorful patches on the shoulders.” He stayed a few minutes and left. A short time thereafter using a warrant issued by a civilian magistrate, the residence was searched. Twenty-seven “balloons” of heroin, together with syringes and $6,000.00 in cash, were uncovered.

On 4 March, the civilian police told military investigators at George Air Force Base about the red Corvette with Oregon tags driven by an individual who was apparently a servicemember. Later the car was identified as the appellant’s. On the afternoon of the next day, 5 March, the appellant was taken from the squadron lounge to the Office of Special Investigations (OSI). There, the appellant contends that while he was advised of his right to counsel and given codal warnings, he was not informed of the offense of which he was suspected. The appellant further states he asked for a lawyer “three or four times,” but none was provided. What occurred next is contested. The appellant maintains he was required to remove his flight suit leaving him in his underwear while his arms were examined. The investigator who conducted the body view stated that initially the appellant was asked only to unzip the flight suit to the waist. In any event, needle marks were found on the appellant’s right and left forearms and on his ankles. At this point he was asked to disrobe completely and his entire body was examined and photographed. The record is clear that the appellant did not consent to this procedure.

Later, at approximately 1830 hours the appellant was taken to the emergency room of the base hospital and examined by a physician. This examination disclosed approximately ten puncture marks on the hands, forearms and ankles that were consistent with a hypodermic needle injection. The appellant also manifested capillary changes, i.e., eyes abnormally large, and blood pressure and pulse changes which are symptomatic of narcotic withdrawal.

That evening, pursuant to a search authorization, the appellant was required to provide a urine sample and permit a medical technician to withdraw blood. Laboratory tests on each specimen revealed the presence of opiates.

II

The appellant first urges that he had a reasonable expectation of privacy in his forearms which he chose to shield from public view by wearing a long sleeve garment. We note, however, the decision of what clothing to wear was not his. He was required to wear the standard Air Force flying uniform. He argues that requiring him to expose his arms was just as much a search as asking him to empty his pockets, a position held in United States v. Kinane, 1 M.J. 309 (C.M.A.1976). In that case the court held that a detective’s action in demanding that an accused remove items from his pockets constituted a “search” within the ambit of the Fourth Amendment. He also directs our attention to State v. Brown, 25 Wis.2d 413, 130 N.W.2d 760 (1964), wherein the Wisconsin Supreme Court stated that looking for needle marks on the arms of a suspect was a search within the meaning of the term.

The editorial comment to Rule 312 opines that the rule applies a sliding scale to body evidence problems — the greater the Fourth Amendment intrusion, the broader the protection. At the least intrusive end of the scale are those slight intrusions such as visual examinations of the body. At the other end are gross intrusions, like surgical procedures to recover evidence. S. Saltzburg, L. Schinasi and D. Schlueter, Military Rules of Evidence, 2d ed., p. 221. As we stated earlier, Rule 312 has no civilian equivalent, but decisions from state and federal appellate courts can give guidance as to what is a minimal intrusion. The Supreme Court of Georgia held that swabbing a suspect’s hands to obtain gunpow[592]*592der residue was not a search nor did it amount to self-incrimination. Strickland v. State, 247 Ga. 219, 275 S.E.2d 29 (1981). In a similar case the New York Court of Appeals in. People v. Wesley, 88 Misc.2d 177, 387 N.Y.S.2d 34 (N.Y.Sup.1976), stated that shining an ultra-violet light on an accused’s hands was not a search. In a recent New Jersey case the appellant argued that the police had no right to “visually inspect” the soles of his shoes which were concealed from view because he was standing. There the Appellate Division of the New Jersey Superior Court ruled that for a visual inspection to constitute a “search”, the accused must have had a reasonable expectation of privacy in the area searched. The court found only a minimal expectation in the soles of shoes. State v. Bates, 202 N.J.Super. 416, 495 A.2d 422 (1985). We reach the same conclusion here. Forearms possess no reasonable expectation of privacy. They are routinely exposed to public view as are other parts of the body.

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Related

Repp v. United States
23 Cl. Ct. 628 (Court of Claims, 1991)
United States v. Sloan
30 M.J. 741 (U S Air Force Court of Military Review, 1990)
United States v. Tallon
28 M.J. 635 (U S Air Force Court of Military Review, 1989)

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23 M.J. 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-repp-usafctmilrev-1986.