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Tim Bilecki

Probable Cause

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 false information.

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 marijuana.

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 theremainder 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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