United States v. Fitten

WELCH, Senior Judge: The appellant, in his first assignment of error, challenges the propriety of using evidence obtained by his forced catheterization at U.S.' Naval Hospital, Sari Diego.1 The urine extracted from the appellant provided evidence of his use of cocaine and marijuana.2 [661] Appellant’s conviction was based on his plea of guilty to unauthorized absence and his conditional plea of guilty to the wrongful use of cocaine and marijuana. His conditional plea was entered after the judge denied his motion to suppress the results of tests performed on the urine obtained by catheterization. We hold that the judge properly denied the motion to suppress evidence. Our reasoning follows. I. The Factual Settitig At approximately 1000,16 December 1991, the appellant turned himself in at the Chaplain’s Office at Naval Station, San Diego. He appeared to be under the influence of an unknown substance. At approximately 1030, he was taken to the Branch Medical Clinic at Naval Training Center, San Diego, and given a competence for duty examination. He was found unfit for duty due to the use of drugs or alcohol. At approximately 1300, he was transported to U.S. Naval Hospital, San Diego. Dr. W, a medical officer, saw appellant upon arrival. He observed that appellant was intermittently obtunded (not acting normally; in an altered mental status — “like ... psychiatrically ill, intoxicated, what ever”) and. combative (striking out, moving about, and talking in a very loud tone or yelling). Because such action might be caused by anything from metabolic deficiencies to head injuries to drug intoxication, Dr. Ws initial treatment included (a) a metabolic screen to test for different chemicals in the blood, (b) a C-spine precaution (placing appellant in a rigid brace — a “Philadelphia collar” — that prevents movement of the neck, and strapping the appellant to a spine board), (c) ordering a CAT scan of the appellant’s brain, and (d) ordering a dangerous drug screen. Record at 10-13. At U.S. Naval Hospital, San Diego, dangerous drug screening tests are done using urine specimens because blood testing is not readily available. If a patient-service member is either unwilling or unable to provide a urine specimen, and the patient’s condition is potentially life threatening, the practice generally followed at the hospital is to obtain a urine specimen by catheterization. Record at 13. Dr. W ordered such testing of the appellant because the appellant’s behavior was potentially drug related and symptomatic of a life threatening situation. Record at 14. In response to questions by the trial judge, Dr. W explained the dichotomy that exists when a patient does not consent to providing a urine specimen and the physician concludes that obtaining a specimen is necessary. If the patient is a civilian, the civilian can say “No. I don’t want you to do it.” and sign out against medical advice. Not so with an active duty military patient: [W]e are required by our military law to perform what we think is in their best interest medically. There are some gray lines on it — in that area, but in a case like this, it’s pretty clear-cut that they don’t have a right to sign out against medical advice and they need to have that test done. Record at 21. The order to catheterize appellant was given within the first hour after his arrival in the emergency room. According to Dr. W, it is important to have catheterization done quickly in situations like the appellant’s in case there is a toxin in the patient’s body. Additionally, in his opinion, the “standard of care” requires that information from a dangerous drug screen be obtained within the first couple hours of the patient’s stay in the emergency room. Tests results of urine obtained by catheterization are normally known within 15 to 30 minutes after the specimen is obtained from the patient. Record at 18-19. Mrs. B, a licensed civilian nurse, who started caring for the appellant when he arrived in the emergency room, performed the catheterization. She had performed literally hundreds of catheterizations, a procedure done daily in the emergency room. On any given day, she might do 10 or more. Nurse B’s description of the appellant’s actions in the emergency room includes the following: [662] Mr. Fitten was disoriented ... very abusive both verbally and physically, combative, striking out, at one point, catching me, slapping me with the backhand across my face, hitting my jaw ... [W]e had extreme difficulty trying to get the IV lines in. We were uncertain of what was wrong with Mr. Fitten at this point. We weren’t sure if it was alcohol or drugs or closed head injury, anything at this point. Record at 24. When appellant continued his combative conduct, Nurse B ordered that soft restraints be applied by corpsmen to keep the appellant from pulling IV lines out. Appellant attempted to pull the IV lines out and ripped off the soft restraints. When Nurse B’s next efforts to calm the appellant failed, she ordered the corpsmen to apply “four point” leather restraints for the áppellant’s safety and the safety of hospital personnel; such restraints are frequently used in emergency rooms to control abusive patients. At the time, Nurse B was assisted by three corpsmen; several security personnel were also present. After the appellant arrived at the emergency room, Nurse B asked him several times if he would provide a urine specimen. The appellant was either unable or unwilling to provide the requested specimen. Thus, after about an hour and one half of attempting to obtain a voluntarily provided specimen from the appellant, Nurse B catheterized the appellant based on a doctor’s order. Record at 25. She began the process by swabbing the appellant’s penis three times with beta-dine, an antiseptic, and explaining the process to the appellant. At that time, appellant had calmed down somewhat; he was talking to Nurse B; he was relaxed a bit. Nurse B testified that the appellant never made any verbal protest to her concerning the procedure and that he was cooperative. Record at 25-28. Parenthetically, we add (a) that Nurse B candidly testified that “when you have somebody’s penis in your hand, they’re not going to fight a whole bunch,” and (b) that the appellant later testified that he had tears in his eyes during the process. Nurse B inserted the appropriate tubing into appellant’s penis and withdrew urine from his bladder. The process took “just a couple of minutes.” Record at 32. Nurse B collected two containers of urine while the tubing remained inserted. There was “no time difference between” the collection of the “bottle A” specimen and the “bottle B” specimen because there was a continual drip of urine coming out of the tubing. Record at 27. While Nurse B was conducting the catheterization, Senior Chief C was nearby. He was the appellant’s command’s chief investigator, as well as the urinalysis coordinator. He had been sent to the hospital at about 1300 to attempt to obtain, with the appellant’s consent, a specimen of the appellant’s urine. The appellant had refused to voluntarily contribute a specimen. After the appellant refused to voluntarily comply with Senior Chief C’s request, Senior Chief C was advised by Nurse B that the appellant had mentioned to her that he had a “drug weekend.” Record at 38. Senior Chief C conveyed this information to the appellant’s command’s staff judge advocate by telephone. Soon thereafter, the staff judge advocate called back to Senior Chief C and told . him that appellant’s commanding officer had authorized a probable cause search of the appellant’s urine. Record at 38-39. See also App. Ex. I and II. The commanding officer’s authorization to search based upon probable cause was conveyed to Senior Chief C moments before the catheterization was started. Nothing in the record indicates the authorization directed a catheterization, leaving open the inference that the commanding officer’s intent could have been that the appellant be ordered to produce a specimen and that the Senior Chief standby with bottle in hand. Nevertheless, Senior Chief C told Nurse B that he had permission to get a sample of the appellant’s urine. Record at 40. While Senior Chief C was talking to the staff judge advocate, Nurse B continued the process of catheterization because, in her words, “[i]t was important that we find out what was wrong with Mr. Fitten so I continued.” Record at 27. The order from, appellant’s command “played no role” in Nurse B’s decision to catheterize him — she was going to do it with [663] or without approval of the appellant’s command. Record at 34. After obtaining urine for the dangerous drug screening test in “bottle A”, Nurse B asked Senior Chief C for his bottle, “bottle B.” She then let some of appellant’s urine drip from the tubing into bottle B. Thereafter, Nurse B looked at bottle B and said “I’m not sure if this is enough,” and poured some of the urine from bottle A into bottle B while commenting “[t]his is more than enough for us and this should be enough for your sample.” Record at 38. Urinalysis testing of the content of bottle B later produced the evidence that led to the preferral of charges against the appellant. II. Prosecution Based on Evidence Obtained From Forced Catheterization The appellant contends that the trial judge erred when he denied his motion to suppress evidence derived from appellant’s forced catheterization. According to the appellant, obtaining evidence in this manner was unnecessary and unreasonably intrusive, and in violation of due process of law. He cites as dispositive Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), discussed below, and Mil.R.Evid. 312(d), which states in part that “[ijnvoluntary extraction of body fluids under this rule must be done in a reasonable fashion by a person with appropriate medical qualifications.”3 The Government responds that the appellant’s urine was properly obtained for a valid medical purpose, as authorized by Mil. R.Evid. 312(f), which states: Intrusions for valid medical purposes. Nothing in this rule shall be deemed to interfere with the lawful authority of the armed forces to take whatever action may be necessary to preserve the health of a servicemember. Evidence or contraband obtained from an examination or intrusion conducted for a valid medical purpose may be seized and is not evidence obtained from an unlawful search or seizure within the meaning of Mil.R.Evid. 311. On 21 May 1954, a divided United States Court of Military Appeals discussed at length the use of evidence obtained as a result of catheterization of a service member. See United States v. Williamson, 4 U.S.C.M.A. 320, 15 C.M.R. 320 (1954); United States v. Booker, 4 U.S.C.M.A. 335, 15 C.M.R. 335 (1954). In Williamson, the Court held that the results of urinalysis of a specimen obtained from an unconscious service member could be used in evidence against him without violating his right against self-incrimination. In Booker, the Court held that the results of catheterization of a service member with his consent could be used in evidence against him. Obviously, neither case is on “all fours” with appellant’s case. However, in Williamson each judge discussed Rochin (holding that use of evidence obtained by pumping the accused’s stomach was a violation of due process of law because it “shocks the conscience”), with Judge Bros-man stating: If the case before us involved real evidence obtained from an accused person by use of a catheter and over his protest, I should similarly conclude that fundamental standards of decency in law enforcement has been infringed, and that a conviction predicated in any part on such evidence violated the concept of “military due process.” Williamson 4 U.S.C.M.A. at 329, 15 C.M.R. 320. If the appellant had presented us with a pure case of a commanding officer directing a probable cause search by catheterization of an obviously healthy service member, we would probably quote the words of Judge Brosman and rule in appellant’s favor. But that is not the case before us. The testimony of Dr. W and Nurse B convinces us that appellant was subjected to involuntary catheterization solely on the basis of medical necessity (the appellant displayed signs indicative of drug use and the emergency room physician needed to determine the nature of the substance in the appellant’s body to assure that appellant did not die). [664] We fine-tune the issue raised by the appellant by noting that urine from appellant’s bladder eventually went in two directions: “bottle A” to the hospital technicians and “bottle B” to the drug screening laboratory to build a case against the appellant. When faced with a similar situation, albeit not involving catheterization, the U.S. Air Force Court of Military Review held “that once the government lawfully possesses a urine sample it may conduct any laboratory test for drugs it wishes on the specimen.” United, States v. Jenkins, 24 M.J. 846, 848 (A.F.C.M.R.1987), citing United States v. Nand, 17 M.J. 936, 937 (A.F.C.M.R.1984), which states “[t]he fact that a portion of the urine sample was used for another purpose is irrelevant since the sample was validly taken.” See also United States v. Cannon, 29 M.J. 549, 554 (A.F.C.M.R.1989). Although we agree with the principles stated in the above cited cases, none of them squarely address questions raised by the logical observation that catheterization may be prolonged for some brief period of time if a “bottle B” is partially filled for forensic testing. Frankly, our conscience is not “shocked” by such conduct. We believe that concerns expressed in Rochin and Williamson are allayed when forced catheterization is initiated by appropriately qualified service medical personnel acting to save the life of a service member. Under these circumstances, we find no support in law or reason for a per se rule excluding evidence captured in a “bottle B,” either from the direct flow from the end of the tubing used or from decantation. Rather, in such cases, we will examine all the circumstances to determine the reasonableness of the action taken and the legal basis for admission of evidence of urinalysis testing. In this case — -reminiscent of a proverbial law school examination question, based in part on Nurse B’s pouring of urine from “bottle A” to “bottle B” — we find two alternative grounds for upholding the judge’s ruling. First, we find that the urine in “bottle B” contained an undetermined, but significant, amount of appellant’s urine that had been properly captured for a valid medical reason in “bottle-A.” Thus, we conclude that the urine obtained was in essence all one sample extracted during an intrusion conducted for a valid medical purpose; ergo, the evidence was admissible under Mil.R.Evid. 312(f) and the principles in Jenkins, Nand, and Cannon. Alternatively, we find that the appellant’s urine was obtained in a reasonable fashion — reasonable because catheterization was required as part of an effort to preserve his life — by a person with appropriate medical qualification, and pursuant to a proper command authorized probable cause search per Mil.R.Evid. 315; ergo, the evidence was admissible under Mil.R.Evid. 312(d) and need not have been excluded under the principles of Rochin. Thus, we conclude that the first assignment of error is without merit. III. Other Assignments of Error The remaining assignments of error also lack merit. United States v. Weiss, 36 M.J. 224 (C.M.A.1992), cert. granted, — U.S. -, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993); United States v. Graf, 35 M.J. 450 (C.M.A. 1992). The findings and sentence, as approved on review below, are affirmed. Footnotes [1] I. THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS EVIDENCE DERIVED FROM THE FORCED CATHETERIZATION OF APPELLANT IN THAT THE PROCEDURE, UNNECESSARY AND UNREASONABLY INTRUSIVE, VIOLATED DUE PROCESS. (FOOTNOTE OMITTED.) II. THE COURT-MARTIAL HAD NO JURISDICTION BECAUSE THE MILITARY JUDGE'S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. (CITATION OMITTED.) BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. III. THE COURT-MARTIAL LACKED JURISDICTION BECAUSE APPELLANT’S MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. (CITATIONS AND FOOTNOTE OMITTED.) BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. [2] Appellant was convicted by special court-martial of violating Articles 86 and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886 and 912a, respectively, by unauthorized [661] absence, and illegally using marijuana and cocaine. The judge sentenced him to 45 days confinement, reduction to pay grade E-l, and a bad-conduct discharge, which was approved by the convening authorily. [3] At trial, the defense counsel advised the judge that the issue presented was “very narrow. We’re not arguing that there was not a proper search authorization." Record at 7.