United States v. Cowgill, 68 M.J. 388 (C.A.A.F. 2010) deals with probable
cause. The issue was whether there was sufficient probable cause for a
search warrant when a portion of the search warrant affidavit contained
On 5 January 2007, an Air Force OSI agent contacted a local police detective
to get a search warrant for appellant's off-base home. The OSI agent
told the detective three things during a twenty minute conversation:
(1) an unnamed source saw the
appellant smoking marijuana at the home three times in December 2006; (2) the same source smelled
marijuana at the home at other times in 2006; and (3) the appellant's
roommate failed a urinalysis test.
The detective prepared a search affidavit that same day and went to the
magistrate. The magistrate asked for corroboration of the unnamed source's
statements, and the detective modified the affidavit to say the failed
urinalysis occurred after the source reported the marijuana use, even
though the urinalysis was a unit sweep in August 2006. The detective thought
his modification was correct but never attempted to verify the information
with the OSI agent. The resulting search of the appellant's home found
The CAAF held that the erroneous information in the modified affidavit
was a reckless disregard for the truth however under the totality of circumstances;
there was still sufficient probable cause for the search after redacting
the erroneous information. The court held that a magistrate can use the
totality of circumstances to determine if there is a substantial basis
to find probable cause. Even under this broad test, however, there must
still be a "concrete indicia of reliability" for the informant.
The corroboration, in this case, the failed urinalysis, is, therefore,
essential to the magistrate's probable cause finding.
Because the timing of the failed urinalysis was incorrectly reported to
the magistrate, the question is how to deal with the magistrate's
decision. "When there are misstatements or improperly obtained information,
we sever those from the affidavit and examine the remainder to determine
if probable cause still exists." (p. 391) (citing United States v.
Gallo, 55 M.J. 418, 421 (C.A.A.F. 2001). Not every mistake in a search
affidavit is a basis for challenging its veracity. Under M.R.E. 311(g)(2),
"the defense has the burden of establishing by a preponderance of
the evidence the allegation of knowing and intentional falsity or reckless
disregard for the truth." Reckless disregard is more than negligence,
and in this case, it appears the detective "acted in good faith"
when he modified the affidavit. (p. 392).
However, in a "fact-specific holding" (p. 393) the CAAF still
held the detective's affidavit modification was a reckless disregard
for the truth based on four things:
(1) the detective admitted it was unusual for an affiant to rely on a confidential
informant he never had direct contact with; (2) this informant had not
been vetted using reliability buys; (3) the judge specifically asked about
the timing, which should have alerted the detective to how important the
information was; and (4) there was no exigency that prevented the detective
from verifying the information.
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