Walter S. Stevenson Hospital Corpsman Third Class U.S. Navy Convicted Sex Offender Rape

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Name: Walter S.Stevenson

Case: U.S. v. Stevenson No. 00-6001

Date Of Appeal: May 2, 2000

Plea: Not Guilty

Charges: Rape

Military Branch: U.S. Navy

Listed In National Sex Offenders Registry? NO

Petitioner was charged with rape, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 920 (1994 & Supp V 1999). Before trial, the military judge granted a motion to suppress evidence. The United States Navy-Marine Corps Court of Criminal Appeals affirmed (Pet. App. 10a-22a). The United States Court of Appeals for the Armed Forces, however, reversed and remanded the case for an evidentiary hearing. Id. at 1a-9a.

As summarized in the findings of the military judge (Pet. App. 23a-26a), on November 23, 1992, the wife of a member of the United States Navy was allegedly raped at her on-base residence in Hawaii. During a subsequent medical examination of the victim, blood and semen samples were recovered from her body. In August 1993, the investigation of the rape was closed as unresolved by the Naval Criminal Investigative Service (NCIS).

At the time of the alleged rape, petitioner was serving in the United States Navy and stationed in Hawaii. On July 15, 1994, he was released from active duty and transferred to the Navy's Temporary Disability Retirement List (TDRL) because of a medical disability. Servicemembers are placed on the TDRL when their disability "may be of a permanent nature," but the circumstances do not permit a final determination that the condition is, in fact, "permanent . . . and stable." Pet. App. 4a (quoting 10 U.S.C. 1202). While on the TDRL, a servicemember receives retired pay. He is required to submit to periodic physical examinations, however, "to determine whether there has been a change in the disability for which he was temporarily retired." Ibid. (quoting 10 U.S.C. 1210(a)). Failure of the servicemember to submit to such a periodic examination may lead to termination of retired pay. Ibid. When a physical examination leads to a determination that the member is "physically fit" to perform his or her duties, the military service can exercise a number of options, including returning the member to active duty with his consent. Ibid.

In November 1997, after reviewing police reports that implicated petitioner as a suspect in a "Peeping Tom" incident that occurred in the vicinity of the rape, NCIS reopened its investigation. Pet. App. 23a. Thereafter, the NCIS office in Hawaii asked NCIS Special Agent John McNutt, assigned to the NCIS office in Memphis, Tennessee, to interrogate petitioner, who was living in Memphis, and to ask him to provide NCIS with a sample of his blood. Id. at 24a.

After learning that petitioner was receiving medical treatment at the Veteran's Administration (VA) Hospital in Memphis, McNutt contacted the VA and was allowed to review petitioner's medical records. Pet. App. 24a. During that review, McNutt learned that petitioner was being treated for diabetes and a mental disorder. Ibid. Concerned for his safety and that of petitioner, McNutt decided that it was premature to contact petitioner about the investigation. Ibid. Instead, McNutt obtained petitioner's blood type from the VA and conveyed the information to NCIS headquarters. Comparison of petitioner's blood type to the information obtained from the blood and semen samples obtained during the victim's medical examination did not eliminate petitioner as a suspect in the rape. Ibid.

McNutt was asked to obtain a specimen of petitioner's blood. McNutt, who was aware that petitioner's treatment at the VA Hospital included drawing blood to monitor his diabetes, requested the assistance of the Regional Counsel for the VA. Pet. App. 24a. McNutt informed him that petitioner was a suspect in a rape investigation and asked if NCIS could obtain a specimen of petitioner's blood whenever he might present himself at the VA Hospital in the normal course of his treatment. Id. at 25a. Regional counsel indicated that the VA could comply with NCIS's request and asked for a memorandum formalizing the request. Ibid. NCIS provided a memorandum asking that it be notified the next time that petitioner came to the VA hospital to have blood drawn. Ibid.

On June 3, 1998, petitioner appeared at the VA Hospital for a regularly scheduled medical visit and consented to having blood drawn for the purpose of medical treatment. Pet. App. 14a. A member of the medical staff inserted a vacuum needle into petitioner's arm, then affixed a tube to the needle and drew blood for medical purposes. The medical technician then removed the first tube and, within five or six seconds, affixed a second tube to the needle for the sole purpose of obtaining the blood specimen requested by NCIS. Id. at 25a. After the second specimen had been obtained, the technician removed the vacuum needle from petitioner's arm. Ibid. NCIS seized the second tube of blood and transmitted it to the United States Criminal Investigative Laboratory for deoxyribonucleic acid (DNA) comparison with forensic evidence obtained from the victim. Id. at 26a. On August 4, 1998, the laboratory reported that the DNA profiles developed from the November 1992 forensic evidence were attributable to the victim, petitioner, and one unknown individual. Id. at 14a n.4.

During a pretrial hearing, petitioner moved to suppress his blood and the DNA evidence obtained from him during the medical procedure. Pet. App. 23a. The military judge granted the motion. Id. at 33a. In particular, he found that the blood and DNA evidence were the product of an unlawful seizure because they were not obtained under a search authorization or for a medical purpose, and because VA hospital staff obtained petitioner's consent to having his blood drawn by misrepresenting their purpose for obtaining the blood. Id. at 32a-33a. The military judge also rejected the government's contention that the blood evidence was the product of a lawful search authorized under Military Rule of Evidence 312(f). That rule provides that "[n]othing in th[e] rule [governing evidence obtained from body views and intrusions] 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," and it exempts from exclusion during a court-martial, "[e]vidence or contraband obtained from an examination or intrusion conducted for a valid medical purpose." Mil. R. Evid. 312(f). The military judge reasoned that the rule "is inapplicable to retired servicemembers on the TDR list, at least to the extent that the medical examination or intrusion was conducted for purposes other than ascertaining the status of a member's medical condition vis-à-vis return to an active duty status." Pet. App. 32a. Finally, the military judge held that the search effected by drawing the second tube of blood violated the defendant's due process rights as it was obtained without petitioner's informed consent and by misrepresentation as to the purpose for which the blood was to be used. Id. at 32a-33a.

The U.S. Navy-Marine Corps Court of Criminal Appeals affirmed. Pet. App. 10a. It held that, although the plain language of Mil. R. Evid. 312(f) "does not limit its applicability to active duty servicemembers," Pet. App. 20a, there is no basis for applying the Rule "to members of the TDRL [as] a needed exception to the Fourth Amendment protections applicable to the general populace based upon military exigencies." Id. at 21a. The court explained that the armed forces do not rely on servicemembers on the TDRL to carry out military missions and therefore do not need to be able to take actions necessary to preserve their health as they would for active duty servicemembers. Ibid. "[I]n view of the inapplicability of Mil. R. Evid. 312(f)" to petitioner, the court found, "the search and seizure conducted in this case was unreasonable." Ibid.