United States v. Booker

BROSMAN, Judge

(concurring) :

In United States v. Williamson, 4 USCMA 320, 15 CMR 320, I have recorded my conclusion that a suspected person may not lawfully be subjected to catheterization over his protest. However, I am sure that neither a suspect nor an accused need be warned that he is not required to permit this procedure. In my view, the term “statement,” as used in Article 31(5), does not encompass real evidence like urine samples, and — in general — is directed solely to testimonial utterances. United States v. Milton, ACM S-7345, 13 CMR 741.

On the other hand, I would suppose that consent to catheterization must be regarded in much the same manner as consent to a search and seizure. In short, mere acquiescence does not suffice. United States v. Kofnetka [ACM 4332], 2 CMR 773; United States v. Cook [ACM 4283], 1 CMR 850; United States v. Jones [ACM 3352], 4 CMR (AF) 218; Note, 101 U Penn LR 851, 863. Naturally a finding of consent could more easily be supported if an accused had been informed prior to the extraction that he was not required to submit thereto, and that under the law it could not be performed over his objection. In truth, a written statement of consent — like that customary in obtaining a suspect’s consent to a lie detector examination — might well be appropriate in this area. See FM 19-20, Criminal Investigation, paragraph 68. On the issue of consent, I must confess that it is only after some hesitancy that I conclude that the accused in the instant case did more than acquiesce to superior authority in permitting the catheterization. To my mind the ease is distinctly a close one — but I am willing to accede to the views of my brothers on this point.