Search and Seizure - Probable Cause

In United States v. Rogers, 67 M.J. 162 (C.A.A.F. 2009) the issue before the court was whether there was probable cause to issue a search authorization to examine the Appellant's hair for drug use.

The CAAF held that the military judge did not err while upholding the search authorization based upon probable cause. The court provides the general principles of reviewing search authorizations.

The reviews use a "totality of circumstances" approach, give "substantial deference" to a magistrate who determined probable cause existed, and reviewed facts "in the light most favorable to the prevailing party below."

The Appellant made four specific challenges to the search warrant, each of which was rebutted by the court "based on the totality of circumstances." The four challenges and responses by the court can be summarized as follows. Appellant's first challenge argued the affidavit was inadequate. The affidavit did not state that the Appellant offered to undergo a drug test that came back negative, or that the Appellant had been acquitted of drug use at a special court-martial in a past command.

The court countered that the eyewitness testimony of drug use in the Appellant's home was in a quantity that "was suggestive of frequent or binge use." Besides, the Appellant informed the SrA T that he had been in trouble in a past command for drug use. Appellant's second challenge targeted SrA T's veracity, asserting her reliability was never assessed by the magistrate. The magistrate was not told that she was a subordinate of the Appellant, and that the Appellant had previously disciplined her. The court overruled these concerns based on SrA T's detailed knowledge of the facts, her knowledge of a scar on the Appellant's stomach and his prior legal problems (which were not general knowledge in the unit), and the fact that OSI agents "evaluate[d] her credibility firsthand."

Also, since she was seen as a witness and victim, "the Government carried no burden to demonstrate her reliability beyond that generally required of any witness." Appellant's third challenge claimed the magistrate acted as a rubber stamp by relying on an affidavit that was missing vital information, particularly any information concerning "the science surrounding hair testing and that hair testing could be used to demonstrate binge use."

The court overruled the claim by relying on a twenty-five to thirty minute discussion between the magistrate and the OSI agent who wrote the affidavit. Although though the magistrate's memory of that discussion was not clear, it appeared that certain information missing in the affidavit supporting the search was part of that conversation.

Besides, the magistrate possessed personal knowledge and experience about hair testing from a previous command. Appellant's fourth and last challenge questioned the credibility of the agent, arguing he misrepresented his rank to the magistrate, claiming to be a Major. The court did not find enough evidence in the record to prove the agent sought "to knowingly or intentionally mislead the magistrate."

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