UNITED STATES, Appellee 

v. 

Walter S. STEVENSON, Hospital Corpsman Third Class 

U.S. Navy, Appellant 

No. 06-0934 

Crim. App. No. 200301272 

United States Court of Appeals for the Armed Forces 

Argued October 24, 2007 

Decided February 14, 2008 

BAKER, J., delivered the opinion of the Court, in which ERDMANN, 

STUCKY, and RYAN, JJ., joined. EFFRON, C.J., filed a separate 

opinion concurring in part and in the result. 

Counsel

For Appellant: Lieutenant Commander M. Eric Eversole, JAGC, USN 

(argued); Lieutenant A. M. Cooper, JAGC, USN. 

For Appellee: Lieutenant Derek D. Butler, JAGC, USN (argued); 

Major Brian K. Keller, USMC (on brief); Commander Paul C. 

LeBlanc, JAGC, USN, and Major Wilbur Lee, USMC. 

Amicus Curiae for Appellant: Christopher J. Eckhart (law 

student) (argued); Joel M. Schumm, Esq. (supervising attorney) 

(on brief) -- for the Indiana University School of Law, 

Indianapolis. 

Military Judge: Raymond Kreichelt 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Stevenson, No. 06-0934/NA 

2

 Judge BAKER delivered the opinion of the Court. 

Appellant was tried by a general court-martial convened 

with members at Naval Station Great Lakes, Illinois. Contrary 

to his pleas, he was convicted of rape, in violation of Article 

120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 

(2000). The court members sentenced him to confinement for 

three years, and a dishonorable discharge. The sentence was 

approved by the convening authority, and affirmed by the United 

States Navy-Marine Corps Court of Criminal Appeals. United 

States v. Stevenson (Stevenson I), 52 M.J. 504, 510 (N-M. Ct. 

Crim. App. 1999). On Appellant’s petition we granted review of 

the following questions: 

I. WHETHER NCIS AND VA HOSPITAL PERSONNEL VIOLATED THE FOURTH 

AMENDMENT BY SEIZING APPELLANT’S BLOOD AND SEARCHING IT FOR 

DNA EVIDENCE WITHOUT PROBABLE CAUSE OR A SEARCH WARRANT 

ISSUED ON PROBABLE CAUSE? 

II. IF THIS COURT SUPPRESSES THE EVIDENCE FROM THE WARRANTLESS 

SEARCH AND SEIZURE, SUPRA, DID THE LOWER COURT ERR BY 

FAILING TO ADDRESS OR SUPPRESS BLOOD AND DNA EVIDENCE 

GAINED BY A SEARCH WARRANT ISSUED ON TAINTED EVIDENCE AND 

MATERIAL MISREPRESENTATIONS? 

Based on the reasoning below, we hold that the actions of 

the Naval Criminal Investigative Service (NCIS) and the 

Department of Veterans’ Affairs (VA) violated Appellant’s Fourth 

Amendment right against unreasonable search and seizure, and we 
United States v. Stevenson, No. 06-0934/NA 

3

remand the second issue to the court below for further factual 

determination.1

I. 

This case involves several blood draws. In November 1997, 

NCIS investigators determined that Appellant was a possible 

suspect in a November 1992 rape of a military dependent in 

Hawaii, where Appellant had been stationed. At the time of the 

investigation, Appellant was assigned to the temporary 

disability retired list (TDRL), and was being treated for 

diabetes at the VA hospital in Memphis, Tennessee. As part of 

his treatment, Appellant routinely had his blood drawn by VA 

medical personnel for the purpose of treatment. Appellant was 

aware of the purpose of the draws and consented to them. 

During the course of their investigation, NCIS agents 

learned of the treatment that Appellant was receiving from the 

VA, including the periodic blood draws. As a result, NCIS 

requested that VA medical personnel draw an additional vial so 

that law enforcement authorities might have that blood tested to 

identify Appellant’s DNA. This request was vetted by lawyers at 

the VA, who concluded that the blood could be drawn for and 

searched by NCIS. As a result, at Appellant’s routine, 

consensual blood draw on June 3, 1998, the VA staff drew an 

 

1

 Oral argument in this case was held at the Indiana University 

School of Law, Indianapolis, as a part of Project Outreach. 
United States v. Stevenson, No. 06-0934/NA 

4

additional vial without informing Appellant of the purpose for 

doing so. This sample was sent to the United States Criminal 

Investigations Laboratory and tested to determine the DNA 

composition of the blood for law enforcement purposes. It is 

this blood draw that is implicated by the first assigned issue. 

At trial, the military judge excluded from evidence the 

vial of blood drawn and tested without Appellant’s permission. 

NCIS agents then sought and obtained a warrant from a United 

States federal magistrate in Tennessee, permitting NCIS agents 

to obtain an additional vial of Appellant’s blood. It is this 

request and warrant that are at the root of Appellant’s second 

assigned issue. 

This is the second time this Court has considered 

Appellant’s case. In United States v. Stevenson (Stevenson II), 

53 M.J. 257 (C.A.A.F. 2000), we held that Military Rule of 

Evidence (M.R.E.) 312(f) applied to persons on the TDRL, and 

remanded the case for further proceedings to determine whether, 

in light of United States v. Fitten, 42 M.J. 179 (C.M.A. 1995), 

“the prolonged intrusion of the needle in [Appellant’s] arm 

while a second vial was placed on the vacuum needle, and then 

for some additional period while the blood was extracted into 

the vial, was a de minimis intrusion with respect to the Fourth 

Amendment and Mil. R. Evid. 312(f).” Stevenson II, 53 M.J. at 

260-61. 
United States v. Stevenson, No. 06-0934/NA 

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On remand the military judge found as a matter of fact and 

law that: (1) Appellant’s blood draw was motivated by medical 

personnel concerned with Appellant’s diabetic condition; (2) the 

blood draw was not directed by law enforcement officials, but 

rather was part of his medical treatment by the VA; (3) the 

blood draw was conducted by medical personnel in a VA hospital 

environment; (4) the NCIS request for a blood sample had no 

impact on the initial needle intrusion and did not cause any 

additional intrusion; (5) the NCIS request for a blood sample 

resulted in a de minimis impact by prolonging the time the 

needle was in Appellant’s arm only by a few seconds; and (6) the 

initial blood draw was for a valid medical purpose and necessary 

to preserve the health of a servicemember. The military judge 

also found that, since the blood was drawn for a valid medical 

purpose, M.R.E. 312 did not “limit the purposes to which the 

seized evidence may be put or used.” The United States NavyMarine Corps Court of Criminal Appeals affirmed the military 

judge’s findings of fact and conclusions of law. United States 

v. Stevenson (Stevenson III), 65 M.J. 639, 645 (N-M Ct. Crim. 

App. 2006). 

“We review the denial of a motion to suppress for an abuse 

of discretion.” United States v. Rader, 65 M.J. 30, 32 

(C.A.A.F. 2007) (citing United States v. Khamsouk, 57 M.J. 282, 

286 (C.A.A.F. 2002)). Findings of fact are affirmed unless they 
United States v. Stevenson, No. 06-0934/NA 

6

are clearly erroneous; conclusions of law are reviewed de novo. 

United States v. Flores, 64 M.J. 451, 454 (C.A.A.F. 2007) 

(citing Khamsouk, 57 M.J. at 286). 

II. 

On appeal, Appellant argues that the Government did not 

possess a special health care need under M.R.E. 312 sufficient 

to permit the violation of his Fourth Amendment right through 

the warrantless seizure and search of his blood for DNA testing. 

To hold otherwise, Appellant argues, would be to eliminate any 

distinction between the military’s interest in the provision of 

health care, and a general law enforcement interest. The 

Government responds that the drawing of Appellant’s blood at the 

VA hospital represented a de minimis intrusion justified by the 

Government’s necessary interest in the health of its 

servicemembers in order to determine their fitness for duty, and 

therefore did not violate Appellant’s Fourth Amendment rights. 

The threshold question is whether Appellant had an 

expectation of privacy in his blood that required the Government 

to obtain a warrant prior to seizing and searching that blood 

for law enforcement purposes. Ordinarily, as the Supreme Court 

has held, a person has a reasonable expectation of privacy in 

his blood. See Skinner v. Railway Labor Executives’ Ass’n, 489 

U.S. 602, 616 (1989). Furthermore, while military service 

necessitates a reduced expectation of privacy in bodily fluids 
United States v. Stevenson, No. 06-0934/NA 

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with respect to drug testing, servicemembers otherwise generally 

retain their Fourth Amendment right against unreasonable search 

and seizure. See Murray v. Haldeman, 16 M.J. 74, 81 (C.M.A. 

1983); Committee for GI Rights v. Callaway, 518 F.2d 466, 476 

(D.C. Cir. 1975). 

Of course, within the context of bodily fluids, there are a 

number of exceptions to the warrant requirement as well as 

circumstances that would negate the need for a warrant. These 

include situations where there exists both probable cause and 

the need to prevent the loss of evidence, see Schmerber v. 

California, 384 U.S. 757, 770-71 (1966), where the search is 

necessary to save someone’s life and the evidence is in plain 

view, see Mincey v. Arizona, 437 U.S. 385, 392-93 (1978), and 

where the government demonstrates “‘special needs, beyond the 

normal need for law enforcement,’” see Chandler v. Miller, 520 

U.S. 305, 313-14 (1997) (citation omitted). In addition, M.R.E. 

312(f), rather than being an exception to the warrant 

requirement, authorizes the admission of evidence that was 

developed incident to a valid medical purpose. 

M.R.E. 312(f) states: 

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 

service-member. 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 
United States v. Stevenson, No. 06-0934/NA 

8

unlawful search or seizure within the meaning of Mil. R. 

Evid. 311. 

The specific question raised by this case is whether Appellant 

had an objectively reasonable expectation of privacy in his 

bodily integrity (i.e., DNA), in light of M.R.E. 312(f). But 

for this Court’s application of Fitten in Stevenson II, the 

answer would be straightforward. 

 The Drafters’ Analysis of the Military Rules of Evidence 

states that M.R.E. 312(f) was intended to make “it clear that 

the Armed Forces retain their power to ensure the health of 

their members.” Manual for Courts-Martial, United States, 

Analysis of the Military Rules of Evidence app. 22 at A22-20 

(2005 ed.) [hereinafter Drafters’ Analysis]. The Drafters’ 

Analysis continues, “[a] procedure conducted for valid medical 

purposes may yield admissible evidence. Similarly, Rule 312 

does not affect in any way any procedure necessary for 

diagnostic or treatment purposes.” Id. Thus, M.R.E. 312(f) 

permits the admission of evidence discovered during the regular 

course of medical treatment. 

M.R.E. 312(f) is intended to ensure the provision of 

essential medical care when necessary to preserve the health of 

servicemembers. The rule permits that evidence found or seized 

in the course of medical treatment, which is to say, that is 

incidental to medical treatment, is not subject to suppression. 
United States v. Stevenson, No. 06-0934/NA 

9

In this way, the rule orients the government to the provision of 

medical assistance to the servicemember, without consideration 

of the legal requirements (and potential delays) that might 

pertain to the law enforcement collection of evidence. However, 

the rule is not intended to serve as cover and concealment for 

law enforcement inquiries or as an exception to otherwise 

applicable Fourth Amendment requirements. Therefore, the rule 

does not serve to permit additional searches and seizures that 

are not incident to treatment. Whether such additional searches 

are admissible is a question of Fourth Amendment analysis. 

Nor is there any indication that either Congress, through 

delegated authority to the President under Article 36, UCMJ, 10 

U.S.C. § 836 (2000), or the President through promulgation of 

M.R.E. 312 and M.R.E. 313 intended to abolish servicemembers’ 

expectation of privacy in blood drawn in furtherance of military 

preparedness. To the contrary, 10 U.S.C. § 1565a (2000) 

(governing the use of DNA collected for casualty identification) 

reflects considerable concern about the handling of DNA. In 

this case, for these reasons, M.R.E. 312(f) is not applicable to 

the second vial of blood drawn at the VA hospital, and does not 

otherwise obviate Appellant’s reasonable expectation of privacy. 

The ruling of the United States Navy-Marine Corps Court of 

Criminal Appeals with respect to the exclusion of the vial of 

blood drawn at the VA hospital is therefore reversed. 
United States v. Stevenson, No. 06-0934/NA 

10

In fairness to the military judge, the lower court and the 

parties, the clarity of this conclusion was not forecast by this 

Court’s discussion of Fitten in Stevenson II. In Fitten, the 

appellant -- admitted to the emergency room because of erratic 

behavior apparently due to drug use -- underwent an involuntary 

catheterization in order to determine the cause of his 

condition, so as to inform subsequent treatment. 42 M.J. at 

180. The appellant’s command requested that, during the 

procedure, an additional sample of the urine be collected, and 

given to the command. Id. This Court upheld the admission of 

the urine test under M.R.E. 312, finding among other things that 

the catheterization caused only a de minimis intrusion, which 

did not “shock the conscience.” Id. at 182. The de minimis 

nature of the search was one of a totality of circumstances 

relied on by the Court. Id. However, in Stevenson II the de 

minimis nature of the search was referenced as the conclusion of 

the Court. 53 M.J. at 260. In turn, the Court of Criminal 

Appeals on remand referred to this conclusion as the holding in 

Fitten. Stevenson II, 65 M.J. at 644-45. 

However, while the degree of an intrusion may inform 

whether an objectively reasonable expectation of privacy exists, 

the Supreme Court has not adopted a de minimis exception to the 

Fourth Amendment’s warrant requirement. To the contrary, the 

Supreme Court has held that the need for a warrant is not 
United States v. Stevenson, No. 06-0934/NA 

11

relieved by the use of advanced search methods that are 

imperceptible to the subject of the search. See, e.g., Kyllo v. 

United States, 533 U.S. 27, 34, 40 (2001) (the use of infrared 

cameras to determine the heat of a house where federal agents 

suspected marijuana was being grown). Thus, to the extent that 

Fitten and Stevenson II stand for the proposition that there is 

a de minimis exception to the Fourth Amendment or to M.R.E. 312, 

they are overruled. 

The Fourth Amendment problem in this case was that the vial 

of blood taken from Appellant and provided to NCIS represented a 

distinct search and seizure from that undertaken incident to 

Appellant’s treatment for diabetes.2 Whatever might be said of 

Appellant’s expectation of privacy with regard to the blood draw 

itself, a search for DNA was not incident to his treatment for 

diabetes and was not otherwise authorized by warrant or warrant 

exception. 

 

2

 The facts of this case do not require us to reconsider the 

extent, if any, to which M.R.E. 312(f) applies where, after 

valid medical testing, some of the remaining blood from the same 

vial was made available to the NCIS for its investigative 

purposes. See Stevenson II, 53 M.J. at 260. 
United States v. Stevenson, No. 06-0934/NA 

12

III. 

If the military judge erred with respect to the blood drawn 

at the VA hospital, analytic emphasis turns to the second issue. 

Were the DNA test results obtained from the blood draw conducted 

pursuant to the search warrant admissible? Appellant argues 

that the military judge erred in upholding the magistrate’s 

determination of probable cause, despite misleading statements 

made to the magistrate by NCIS agents, and the withholding from 

the magistrate facts relating to the exclusion of the original 

blood sample. The Government counters that, despite these 

omissions and misstatements, probable cause existed for the 

issuance of the warrant, and that the basis for the probable 

cause was independent of the initial DNA search. These issues 

were not fully adjudicated by the lower court in light of its 

determination of Issue I. 

As is often the case in the Fourth Amendment context, the 

law is set but the facts are harder to fix. The question 

presented at this point is whether the third blood draw was a 

product of a warrant predicated on information independent from 

the evidence adduced from the blood draw at the VA hospital. 

The answer necessarily entails a factual determination informed 

by the sometimes competing factual recitations of the parties. 

Therefore, we will remand to the lower court, for consideration 

of two related questions in light of our resolution of Issue I: 
United States v. Stevenson, No. 06-0934/NA 

13

first, to determine whether the warrant was derivative from a 

source of information independent from the seizure and search of 

Appellant’s blood at the VA hospital; and second, to consider 

whether the warrant was valid in light of Appellant’s argument 

that statements and omissions to the magistrate were not made in 

good faith. 

DECISION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is set aside. The record of trial is 

returned to the Judge Advocate General for remand to that court 

for consideration of granted Issue II in light of our resolution 

of Issue I. 
United States v. Stevenson, 06-0934/NA 

EFFRON, Chief Judge (concurring in part and in the 

result): 

 I agree with the majority that a remand is appropriate 

in this case. I would distinguish rather than overrule 

United States v. Fitten, 42 M.J. 179 (C.M.A. 1995), 

however. In Fitten, the catheterization for a valid 

medical purpose under Military Rule of Evidence (M.R.E.) 

312(f) was prolonged to obtain a second bottle of urine for 

disciplinary purposes. 42 M.J. at 180. Once the medical 

purpose under M.R.E. 312 was fulfilled, the non-probable 

cause warrantless search could be continued if it was 

otherwise reasonable under the Fourth Amendment. See

M.R.E. 314(a); M.R.E. 314(k). The Court in Fitten

concluded that the search was reasonable under the specific 

circumstances of the case. 42 M.J. at 182. 

 Although Fitten considered the de minimis nature of 

the intrusion a factor in its Fourth Amendment 

reasonableness analysis, it did not establish a general 

principle of law that all de minimis additional extractions 

are inherently reasonable. Fitten did not relieve the 

government of its burden under M.R.E. 311(e) to demonstrate 

reasonableness under the Fourth Amendment when a search, 

initiated under M.R.E. 312(f), extends beyond the point 

when the medical purpose has been fulfilled. 
United States v. Stevenson, 06-0934/NA 

2

 In the present case, the search extended beyond the 

period required to fulfill a medical purpose under M.R.E. 

312(f). Therefore, even if the extension was de minimis, 

the evidence obtained during the extension could be 

admitted at trial only if the extended search was 

reasonable under the Fourth Amendment. 

 Here, the object of the law enforcement search was 

DNA, a matter not involving time sensitivity or other 

circumstances that might make it reasonable to extend the 

search beyond the purpose of M.R.E. 312(f) without a search 

authorization. There was no risk of rapid dissipation or 

loss of evidence. The law enforcement officials in the 

present case could take whatever time was necessary to 

obtain a search authorization, and Appellant’s DNA would be 

the same as it was on the date of his visit to the hospital 

for the initial blood draw in this case. Under these 

circumstances, the extension of the search to draw the 

second vial was unreasonable, and the evidence derived from 

the search was inadmissible. Under other circumstances, a 

de minimis extension of an otherwise lawful intrusion might 

well be reasonable under the Fourth Amendment and the 

Military Rules of Evidence. M.R.E. 311; M.R.E. 314.