Consider the following hypothetical case. You are home watching TV when you hear a knock at the front door. Answering the door, you find a uniformed police officer who asks if he may come inside and take a look around because neighbors have reported smelling what they believed to be burning marijuana coming from your apartment. Without thinking what a criminal defense lawyer’s advice would be in that situation, you consent to this request. The officer enters the apartment and immediately notices three large potted marijuana plants growing beside the fireplace. Is it too late at that point to withdraw your previously given consent to enter the home? What if the plants are located in a back room and you withdraw your consent before the officer enters that room?
A case recently decided by the U.S. Air Force Court of Criminal Appeals sheds some light on this issue in the context of the military’s drug testing program. In this case, an Airman consented to provide a urine sample for drug testing. The sample was given and shipped off to the drug testing laboratory. Before the sample was tested, however, the Airman revoked his previously given consent to search the sample. The sample was tested anyway and the results were positive for the presence of cocaine.
At trial, the Airman’s defense lawyer moved to suppress the results of the test as a violation of the Fourth Amendment’s protection against unreasonable searches and seizures. The military judge granted the motion and found that the testing of the sample after the revocation of consent violated the Fourth Amendment. The government appealed and the appellate court reversed.
Although the court agreed that military members have a reasonable expectation of privacy in the collection and testing of their urine, it held that this search did not violate the Fourth Amendment because the expectation of privacy did not continue once the sample was provided. The court analogized this situation to that of someone who takes their garbage out to the curb for pick up, thereby voluntarily abandoning any reasonable expectation of privacy in the contents. Urine, the court held, is a waste product which will ultimately be destroyed and in which there is no continuing reasonable expectation of privacy.
If you have questions about your legal rights, you should consult an experienced military criminal defense lawyer.