United States v. Hernandez ( 2020 )

UNITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39606
________________________
UNITED STATES
Appellee
v.
Robert J. HERNANDEZ
Airman Basic (E-1), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 8 October 2020 1
________________________
Military Judge: John C. Degnan.
Approved sentence: Dishonorable discharge and confinement for 60
days. Sentence adjudged 12 September 2018 by GCM convened at Van-
denberg Air Force Base, California.
For Appellant: Major Stuart J. Anderson, USAF (argued); Colonel Mi-
chael A. Burnat, USAF; Major Rodrigo M. Caruço, USAF.
For Appellee: Major Jessica L. Delaney, USAF (argued); Lieutenant
Colonel Joseph J. Kubler, USAF; Lieutenant Colonel Brian C. Mason,
USAF; Captain Kelsey B. Shust, USAF; Mary Ellen Payne, Esquire.
Amicus Curiae for Appellant: A.J. Colkitt (law student, argued); Scott
E. Thompson, Esquire (supervising attorney); Hannah Harris (law stu-
dent); Ashley Pollard (law student)—Liberty University School of Law.
Amicus Curiae for Appellee: Rebekah L. Meier (law student, argued);
Rena M. Lindevaldsen, Esquire (supervising attorney); William B.
Baker (law student); Tanner W. Havens (law student); Christiana H.
Johnson (law student)—Liberty University School of Law.
1We heard oral argument in this case on 20 February 2020 at Liberty University
School of Law, as part of this court’s Project Outreach.
United States v. Hernandez, No. ACM 39606
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge KEY delivered the opinion of the court, in which Chief Judge J.
JOHNSON and Senior Judge POSCH joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
KEY, Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
trary to his pleas, of one specification of wrongful use of cocaine in violation of
Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. 2 The
military judge sentenced Appellant to a dishonorable discharge and confine-
ment for 60 days, and the convening authority approved the sentence as ad-
judged.
On appeal, Appellant raises two issues. First, he asserts the military judge
erred by denying his motion to suppress the results of his urinalysis. Second,
he argues a sentence including a dishonorable discharge for a single use of
cocaine is inappropriately severe. Because we conclude the military judge erred
in not suppressing the urinalysis results, we do not reach Appellant’s second
issue.
I. BACKGROUND
This appeal arises from Appellant’s second court-martial. Appellant was
previously sentenced to 15 months of confinement and a bad-conduct discharge
for cocaine-related offenses and other crimes he pleaded guilty to. Rather than
being placed on appellate leave when he was released from that period of con-
finement in late February 2018, Appellant was returned to Vandenberg Air
Force Base, California. His leadership initially required him to live off-base,
but eventually assigned him an on-base dormitory room which he moved into
on 9 March 2018. Appellant was apparently assigned no military duties until
the end of that month. While living in this dormitory room, Appellant’s urine
was seized pursuant to a search authorization, and the subsequent analysis of
the urine tested positive, leading Appellant to be charged with using cocaine
2All references in this opinion to the Uniform Code of Military Justice (UCMJ) and the
Military Rules of Evidence are to the Manual for Courts-Martial, United States (2016
ed.).
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United States v. Hernandez, No. ACM 39606
and tried at his second court-martial. The focus of this opinion is the legality
of that seizure.
The sequence of events leading up to Appellant’s urine being seized began
in early April 2018 when a Security Forces member, Senior Airman (SrA) AC,
went to visit a friend who lived in the same dormitory building Appellant was
assigned to. Noticing a strong scent of marijuana in the building, SrA AC re-
ported the smell to his supervisor, and a four-person team of Security Forces
personnel was dispatched on 3 April 2018 to further investigate. The team con-
sisted of SrA AC, Investigator JM, Staff Sergeant (SSgt) AM, and SSgt PO.
They were accompanied by Jager, a German Shepherd military working dog
for which SSgt PO was the assigned canine handler. Appellant was a member
of the same squadron as those on the investigative team, and all the team
members were aware of Appellant’s prior drug-related court-martial.
At the dormitory building, the team could smell marijuana as soon as they
entered the building. They found nothing noteworthy on the first floor, so they
proceeded up to the second floor where Appellant’s room was located. At the
top of the stairs, they opened the door to a common hallway leading to 14
rooms. As soon as they did so, Jager sat down, which was his signal that he
smelled one of the five drugs he was trained to detect. 3 After obtaining legal
advice, the team decided to seek consent to search the rooms of residents who
happened to be in the dormitory at the time, searches which involved Jager
doing a brief walkthrough of those rooms. 4 Midway through this effort, Appel-
lant walked out of his room and was stopped in the hallway by the investigative
team. SSgt AM asked Appellant if they could search his room, and Appellant
agreed.
Appellant, Investigator JM, and SSgt AM were standing in the hallway
next to the door to Appellant’s room as SSgt PO brought Jager over to search
the room. When SSgt PO and Jager walked up to the door, Jager sat down in
front of Appellant. Investigator JM asked Appellant for consent to search his
person, which Appellant granted. Investigator JM found nothing notable.
Meanwhile, SSgt AM searched Appellant’s backpack—also with Appellant’s
consent—finding nothing. Jager did not indicate he detected any drugs in the
room, but upon leaving the room Jager sat down in front of Appellant again
and “stared at” him.
3Two of those drugs include marijuana and cocaine, but Jager’s alert signal was the
same for all the drugs he was trained to detect.
4According to the notes SrA AC took at the time, the team was able to search 10 rooms
in the building, but were unable to search an additional 25 rooms.
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United States v. Hernandez, No. ACM 39606
The team released Appellant, who did not exhibit any obvious symptoms of
being under the influence of a controlled substance, and continued their inves-
tigation. Jager alerted one more time on the third floor when the door to a
hallway was opened, but no drugs were found in the team’s limited search of
the building. At some point during the search, SrA AC spoke with one of the
residents who said she smelled marijuana in the building on 2 and 10 March
2018—both before and after Appellant moved into the dormitory.
The day after the search, SSgt AM drafted an affidavit and requested au-
thorization from the military magistrate, Colonel (Col) PN, to seize a urine
sample from Appellant. In making this request, SSgt AM read his affidavit to
Col PN over the phone. Col PN, who knew Appellant had been incarcerated as
a result of his prior drug-related court-martial, gave SSgt AM verbal authori-
zation, and Appellant was taken to the base drug demand reduction office
where he provided a urine sample which subsequently tested positive for a me-
tabolite of cocaine. Although the investigators sought legal guidance during
their search of the dormitory building, there is no evidence SSgt AM discussed
his affidavit with the legal office or that Col PN sought legal advice before
providing search and seizure authorization.
At trial, Appellant sought to suppress the urinalysis results. During the
hearing on this suppression motion, Jager’s handler, SSgt PO, testified that
Jager had been trained to detect actual drugs as well as the “residual odor” of
drugs. Training for residual odors involved using sponges which had absorbed
the scent of the pertinent drug, but did not actually contain the physical drug
itself. SSgt PO further testified that military working dogs cannot detect drugs
in the human body, that Air Force regulations prohibit using working dogs to
search people, and that the dogs are not trained to search people. 5 He explained
he had never previously seen Jager or any other military working dog alert on
a person, although Jager would be capable of picking up the odor of drugs on a
person. SSgt PO testified that he explained to SSgt AM while they were in the
dormitory that Jager does not normally alert on people. He further testified he
had never seen Jager respond on a person, nor had he seen other drug dogs do
so in his career as a canine handler. He said he told SSgt AM that it was “not
normal” the first time Jager sat in front of Appellant, and he told SSgt AM it
was “not usual” after the second alert. SSgt PO testified that SSgt AM did not
5 The Defense provided the military judge an excerpt from Air Force Instruction 31-
121, Military Working Dog Program (2 May 2018), which noted in relevant part, “De-
tector dogs will never be used to search a person.” ¶ 4.2.2.1. SSgt PO explained that
this prohibition is based on safety concerns, testifying that, “You could have an aggres-
sive dog and an aggressive dog with a stranger, nine out of ten times he’s going to bite
the individual being that close.”
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United States v. Hernandez, No. ACM 39606
contact him or ask any follow-up questions before seeking the search authori-
zation.
SrA AC also testified on the suppression motion, explaining that he told
SSgt AM that the dormitory resident he spoke to had said she smelled mariju-
ana in the building on dates which were both before and after Appellant moved
in. He testified SSgt AM asked him what days the resident had smelled mari-
juana, and he gave SSgt AM both dates. SrA AC also provided the military
judge the notes he took during the investigation which reflected the two dates
the resident said she had smelled the odors. SSgt AM testified as well, and he
said that Jager alerted twice on the door to Appellant’s room in addition to the
two times he sat in front of Appellant. This, however, was disputed by SSgt
PO, and the military judge ultimately rejected SSgt AM’s testimony about Ja-
ger alerting twice on Appellant’s door in his ruling on the suppression motion.
SSgt AM’s affidavit supporting his request for the search authorization ex-
plained SSgt AM had been an investigator for about seven months and that he
had worked on eight criminal investigations during this time. He described the
investigation of the dormitory building and included the claim Jager twice
alerted on Appellant’s door in addition to sitting in front of Appellant twice as
well as in the second- and third-floor hallways. The affidavit explained the
team “conducted consensual searches of the residants [sic] who were home at
the time” on the second and third floors, but did not specify the number or
percentage of rooms the team was able to search. His affidavit included the
fact the dormitory resident SrA AC had spoken to said she smelled marijuana
in the building on 10 March 2018, after Appellant had moved in. SSgt AM,
however, omitted the fact the resident had smelled marijuana on 2 March
2018, before Appellant moved in. SSgt AM’s affidavit also failed to disclose ei-
ther that Jager could not detect drugs within the human body or that SSgt PO
had explained Jager sitting in front of Appellant was not normal or usual. The
affidavit contained no information about Jager’s training or capabilities at all,
but it did note that Appellant “was previously serving punitive actions for drug
related charges prior to returning back to Vandenberg [Air Force Base] to out-
process.” At the end of the affidavit, SSgt AM wrote that he was requesting
authorization to search Appellant’s person “for a urine sample and urinalysis,”
without any additional explanation as to why he believed such a search was
warranted or what evidence he believed would be found.
Col PN testified that he granted search authorization after SSgt AM called
him and read the affidavit to him. In summarizing the facts he took into ac-
count in making that determination, Col PN said he considered “[t]he fact that
the dog sat on [Appellant’s] floor, and sat when he came out, and sat each time
it passed his room, and then on the second floor that someone actually could—
said that the smell of marijuana started the day after [Appellant] moved back
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United States v. Hernandez, No. ACM 39606
into the dorms.” When asked by trial defense counsel whether he considered
the possibility that Jager might have alerted to the overall strong smell of ma-
rijuana in the dormitory building, Col PN answered, “No, because it sat next
to him. It sat next to his door and not anybody else or any other door.” Col PN
explained that one of his duties at the time included certifying military work-
ing dogs, which involved reviewing the dogs’ performance histories. Although
he did not specifically recall certifying Jager, Col PN said he would assume
Jager had been certified by virtue of the fact he was being used in an investi-
gation. Col PN further testified he believed Jager was alerting to “some kind
of controlled substance,” but when asked where he thought such a substance
might have been, Col PN answered, “In [Appellant’s] clothes, his hair, his skin.
I couldn’t say, but [Jager] was hitting on something.” Col PN also testified he
knew Appellant had been in confinement, and he thought Appellant had been
convicted for using “cocaine and marijuana,” but he said the drug cases at the
base “all blended together after a while.” Appellant, in fact, had only been con-
victed of cocaine-related offenses.
The Defense argued probable cause was lacking for seizing and searching
Appellant’s urine and that the good faith exception set out in Mil. R. Evid. 311
did not apply based upon SSgt AM omitting “a lot of important facts” from his
affidavit, such as: that the entire building Appellant lived in smelled of mari-
juana; not every room was searched; Jager does not ordinarily alert on people;
military working dogs are not authorized to be used to search people; and that
the dormitory building smelled of marijuana before Appellant had moved in.
Trial defense counsel said they did not intend to “alleg[e] any improper conduct
on [SSgt AM],” but they said the affidavit “pose[d] some concerns,” did not pre-
sent a “fair picture” of the investigation of the dormitory building, and that
some portions of the affidavit were “misleading,” such as the suggestion that
the building only smelled like marijuana after Appellant moved in, which trial
defense counsel characterized as “just not true.” In concluding his argument,
trial defense counsel said,
[B]ecause I think that the affidavit was insufficient, I think that
it just didn’t include all of the facts and circumstances of what
actually occurred. It included, you know, I don’t want to say
false, but misleading information and just didn’t include the full
picture. I don’t think that the good faith exception should apply
in this case.[ 6]
The Government argued Jager could detect the residual odor of drugs on
Appellant’s person and that “there is a logical connection between [Jager]
6Trial defense counsel argued “the second and third prongs” of the good faith exception
in Mil. R. Evid. 311(c)(3) “are not met.”
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United States v. Hernandez, No. ACM 39606
smelling residuals on [Appellant’s] person and a reasonable belief that he re-
cently ingested a controlled substance.” The Government’s theory was that Ja-
ger’s alert indicated Appellant “had either just smoked drugs or just handled
drugs thus providing probable cause he ingested drugs.” Trial counsel argued
that even if probable cause was lacking, the good faith exception should apply,
specifically claiming there was no evidence SSgt AM intentionally or recklessly
failed to include any particular information.
The military judge denied Appellant’s motion to suppress the urinalysis
results, ruling that Col PN had sufficient probable cause to authorize the sei-
zure and subsequent search of Appellant’s urine. In his written ruling, the mil-
itary judge adopted all the facts in SSgt AM’s affidavit, with the exception of
the assertion that Jager alerted twice on Appellant’s door. The military judge
further adopted most of the facts asserted in the Defense’s written suppression
motion, but those facts largely mirrored SSgt AM’s affidavit, adding little new
information. In his analysis, the military judge pointed to the fact the dormi-
tory resident said she smelled marijuana on 10 March 2018, but he did not
address the fact she also smelled it before Appellant moved in, nor did he dis-
cuss the omission of that fact from SSgt AM’s affidavit. The military judge
noted Jager alerted “when he passed by [Appellant] before and after searching
his dorm room,” but he neither referred to the fact Jager was not capable of
detecting drugs inside of Appellant’s body nor that Jager was not trained (or
even allowed) to search people due to safety concerns. The military judge did
not explain how the detection of the scent of drugs outside a person’s body
yields probable cause of locating evidence of drug use within a person’s body.
Instead, the military judge simply noted the evidence was “clearly enough” to
support the search authorization, even after excising the claim Jager alerted
twice on Appellant’s door. The military judge alternatively concluded that if
probable cause was lacking, the good faith exception in Mil. R. Evid. 311(c)(3)
would apply. In so concluding, he ruled “the information in the authorization
was not false or reckless; Col [PN] was not a ‘rubber stamp’ nor did he abandon
his judicial role; the authorization contained more than enough probable
cause . . .; and the authorization was not facially deficient.”
II. LAW
A military judge’s ruling on a motion to suppress evidence is reviewed for
an abuse of discretion, viewing the evidence in the light most favorable to the
prevailing party. United States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016)
(citation omitted). Such an abuse occurs when a military judge’s findings of
fact are clearly erroneous or the judge’s conclusions of law are based on an
erroneous review of the law. United States v. Hollis, 57 M.J. 74, 79 (C.A.A.F.
2002) (citation omitted). We review de novo any conclusions of law on a motion
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United States v. Hernandez, No. ACM 39606
to suppress. United States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F. 2009) (cita-
tions omitted).
A. Probable Cause Requirement
The Fourth Amendment 7 to the United States Constitution protects the
rights of individuals, including servicemembers, to be secure in their persons,
houses, papers, and effects from unreasonable searches and seizures by requir-
ing such searches and seizures to be based on probable cause. United States v.
Ezell, 6 M.J. 307, 310 (C.M.A. 1979). The amendment “gives concrete expres-
sion to a right of the people which ‘is basic to a free society’” and “safeguard[s]
the privacy and security of individuals against arbitrary invasions by govern-
mental officials.” Camara v. Municipal Court of San Francisco, 387 U.S. 523,
528 (1967) (quoting Wolf v. Colorado, 338 U.S. 25, 27 (1949)). The Supreme
Court has explained the amendment’s “protection reaches all alike, whether
accused of crime or not, and the duty of giving to it force and effect is obligatory
upon all entrusted under our Federal system with the enforcement of the laws.”
Weeks v. United States, 232 U.S. 383, 392 (1914).
The Fourth Amendment applies when a person has a reasonable expecta-
tion of privacy. United States v. Jones, 565 U.S. 400, 406 (2012). Military ser-
vicemembers have such an expectation of privacy in the contents of their
urine—both in the initial seizure of the urine and the later testing of it in a
forensics laboratory. See United States v. Dease, 71 M.J. 116, 120–21 (C.A.A.F.
2012) (citations omitted); see also Skinner v. Ry. Labor Executives’ Ass’n, 489
U.S. 602, 617 (1989) (“Because it is clear that the collection and testing of urine
intrudes upon expectations of privacy that society has long recognized as rea-
sonable . . . these intrusions must be deemed searches under the Fourth
Amendment.”). In such a case, a search must be based on probable cause or
meet an exception to that rule. See Skinner, 489 U.S. at 619 (citations omitted).
A search conducted pursuant to a search authorization or warrant is pre-
sumptively reasonable. Hoffman, 75 M.J. at 123 (citation omitted). Nonethe-
less, “a warrant does not guarantee the constitutionality of a search or relieve
the Government of the burden of establishing that the warrant did not author-
ize an unreasonable search.” United States v. Gurczynski, 76 M.J. 381, 386
(C.A.A.F. 2017) (citations omitted).
The Military Rules of Evidence give force to the Fourth Amendment with
respect to criminal proceedings involving servicemembers. Under Mil. R. Evid.
315(f)(2), a military search authorization “must be based on probable cause.”
Probable cause exists when there is a reasonable belief that the person, prop-
erty, or evidence sought is located in the place to be searched. Mil. R. Evid.
7 U.S. CONST. amend. IV.
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United States v. Hernandez, No. ACM 39606
315(f)(2). “Reasonable minds frequently may differ on the question whether a
particular affidavit establishes probable cause, and . . . the preference for war-
rants is most appropriately effectuated by according great deference to a mag-
istrate’s determination.” United States v. Leon, 468 U.S. 897, 914 (1984) (inter-
nal quotation marks and citations omitted). “Close calls will be resolved in fa-
vor of sustaining the magistrate’s decision.” United States v. Monroe, 52 M.J.
326, 331 (C.A.A.F. 2000) (quoting United States v. Maxwell, 45 M.J. 406, 423
(C.A.A.F. 1996)). A search authorization should not be found invalid by ana-
lyzing the underlying affidavit “in a hypertechnical, rather than a com-
monsense, manner.” United States v. Clayton, 68 M.J. 419, 423 (C.A.A.F. 2010)
(quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)). “[T]he ultimate touchstone
of the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547
U.S. 398, 403 (2006) (citations omitted). In assessing the reasonableness of a
search, we weigh the degree of the intrusion of the person’s privacy against the
degree to which the search promotes a legitimate governmental interest. Gur-
czynski, 76 M.J. at 386 (citing Riley v. California, 573 U.S. 373, 385 (2014)).
Our review of whether a search authorization is grounded in probable cause
is not conducted de novo; rather we assess whether “the authorizing official
had a ‘substantial basis’ for finding probable cause.” Hoffman, 75 M.J. at 125
(citation omitted). “A substantial basis exists ‘when, based on the totality of
the circumstances, a common-sense judgment would lead to the conclusion that
there is a fair probability that evidence of a crime will be found at the identified
location.’” United States v. Nieto, 76 M.J. 101, 105 (C.A.A.F. 2017) (quoting
United States v. Rogers, 67 M.J. 162, 165 (C.A.A.F. 2009)). Probable cause re-
quires the demonstration of “a sufficient nexus between the alleged crime and
the specific item to be seized.” Id. at 106 (citations omitted). In conducting this
review, we look to the information that the authorizing official had at the time
he made his decision. United States v. Cowgill, 68 M.J. 388, 391 (C.A.A.F. 2010)
(citations omitted). When inaccurate information is included in the affidavit
used in support of a request for a search authorization, we will sever that in-
formation and determine whether the remaining information supports a find-
ing of probable cause. Id. (citing United States v. Gallo, 55 M.J. 418, 421
(C.A.A.F. 2001)) (additional citation omitted).
We ordinarily afford the magistrate’s determination of probable cause great
deference, but we recognize three exceptions to this general rule: (1) when the
affidavit upon which the determination was based was prepared with knowing
or reckless falsity; (2) when the magistrate is not neutral and detached or is
serving as “a rubber stamp” for the police; or (3) when the affidavit fails to
provide a substantial basis for a finding of probable cause or the determination
is “a mere ratification of the bare conclusions of others.” United States v.
Carter, 54 M.J. 414, 419 (C.A.A.F. 2001) (quoting Leon, 468 U.S. at 914–15).
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United States v. Hernandez, No. ACM 39606
B. Exclusionary Rule
Under Mil. R. Evid. 311(a), evidence seized pursuant to a deficient search
authorization—one lacking probable cause—must be excluded unless an ex-
ception applies. United States v. Perkins, 78 M.J. 381, 386 (C.A.A.F. 2019).
Even when evidence has been unlawfully obtained and when no exception to
the exclusionary rule applies, the evidence is only inadmissible when “exclu-
sion of the evidence results in appreciable deterrence of future unlawful
searches or seizures and the benefits of such deterrence outweigh the costs to
the justice system.” Mil. R. Evid. 311(a); see also Herring v. United States, 555
U.S. 135, 147 (2009); United States v. Wicks, 73 M.J. 93, 104 (C.A.A.F. 2014).
C. Good Faith Exception
One exception to the ordinary rule of exclusion is the so-called “good faith”
exception under which evidence obtained as a result of an unlawful search or
seizure need not be suppressed if it was obtained pursuant to the good faith
execution of a search authorization. Mil. R. Evid. 311(c)(3) sets forth three re-
quirements for this exception:
(1) the search or seizure executed was based on an authorization
issued by a competent authority;
(2) “the individual issuing the authorization . . . had a substantial
basis for determining the existence of probable cause;” and
(3) the person seeking and executing the authorization “reasonably
and with good faith relied on the issuance of the authorization.”
The United States Court of Appeals for the Armed Forces (CAAF) has ex-
plained that the second requirement is met if the person executing the search
“had an objectively reasonable belief that the magistrate had a ‘substantial
basis’ for determining the existence of probable cause.” Perkins, 78 M.J. at 387
(quoting Carter, 54 M.J. at 422). The question is “‘whether a reasonably well-
trained officer would have known that the search was illegal’ in light of ‘all the
circumstances.’” Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at 922 n.23).
We further “consider the objective reasonableness, not only of the officers who
eventually executed a warrant, but also of the officers who originally obtained
it or who provided information material to the probable-cause determination.”
Leon, 468 U.S. at 923 n.24.
The Supreme Court has identified four circumstances in which the good
faith exception will not apply: (1) where the magistrate “was misled by infor-
mation in an affidavit that the affiant knew was false or would have known
was false except for his reckless disregard of the truth;” (2) where the magis-
trate “wholly abandoned his judicial role;” (3) where the warrant was based on
an affidavit “so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable;” and (4) where the warrant is so “facially
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United States v. Hernandez, No. ACM 39606
deficient . . . in failing to particularize the place to be searched or the things to
be seized . . . that the executing officers cannot reasonably presume it to be
valid.” Leon, 468 U.S. at 923 (citations omitted). The CAAF has harmonized
these four exceptions with the three requirements under Mil. R. Evid. 311(c)(3)
by finding Leon’s first and third exceptions to be incorporated in Mil. R. Evid.
311(c)(3)’s second prong (magistrate having a substantial basis) and Leon’s sec-
ond and fourth exceptions to be incorporated in Mil. R. Evid. 311(c)(3)’s third
prong (good faith reliance on the search authorization). Carter, 54 M.J. at 421.
What amounts to a “reckless disregard” for the truth has not been precisely
defined, but it does call for more than mere negligence on the part of the affi-
ant. United States v. Blackburn, ___ M.J. ___, No. 20-0071, 2020 CAAF LEXIS
405, at *10–11 (C.A.A.F. 24 Jul. 2020). Our superior court has identified such
conduct as ranging from “sheltering obvious reasons to doubt the veracity of
the allegations” to “withholding a fact . . . that any reasonable person would
have known . . . was the kind of thing the judge would wish to know.” Id. (al-
terations in original) (other alteration and internal quotation marks omitted)
(quoting United States v. Jones, 208 F.3d 603, 607 (7th Cir. 2000) and Wilson
v. Russo, 212 F.3d 781, 788 (3d Cir. 2000)). Federal courts have concluded reck-
lessness may be inferred from the omission of evidence which is critical to the
determination of probable cause. See, e.g., Jordan v. Town of Waldoboro, 943
F.3d 532, 544 (1st Cir. 2019); Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th
Cir. 1997) (citing United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980)).
We review the question of whether an affiant provided false information inten-
tionally or with reckless disregard for the truth for clear error, as it is a ques-
tion of fact. Blackburn, 2020 CAAF LEXIS 405, at *14 (citing United States v.
Allen, 53 M.J. 402, 408 (C.A.A.F. 2000)).
D. Issue Preservation
Whether we consider Appellant’s particular arguments for the suppression
of the evidence resulting from the seizure of his urine turns, in part, on
whether Appellant has preserved the issue for our review. Under Mil. R. Evid.
311(d)(2)(A), the failure to object to or seek suppression of evidence obtained
from an unlawful search or seizure prior to the entry of pleas waives the issue.
United States v. Smith, 78 M.J. 325, 325–26 (C.A.A.F. 2019). Objections must
be particularized, setting out the argument for suppressing the evidence, oth-
erwise they are waived. Perkins, 78 M.J. at 389–90. “While there are no ‘magic
words’ dictating when a party has sufficiently raised an error to preserve it for
appeal, of critical importance is the specificity with which counsel makes the
basis for his position known to the military judge.” United States v. Rich, 79
M.J. 472, 475 (C.A.A.F. 2020). However, when the issue at hand is constitu-
tional in nature, we apply “a presumption against finding waiver.” Blackburn,
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2020 CAAF LEXIS 405, at *9–10 (citing United States v. Jones, 78 M.J. 37, 44
(C.A.A.F. 2018)).
III. DISCUSSION
Appellant argues the information presented to the magistrate was inade-
quate to support probable cause for the seizure and search of Appellant’s urine,
because the information did not demonstrate a fair probability that Appellant’s
urine contained evidence of drug abuse. Appellant further argues SSgt AM
drafted his affidavit with a reckless disregard for the truth by omitting signif-
icant information, thereby rendering the good faith exception inapplicable in
this case. Therefore, Appellant argues, the evidence obtained as a result of the
seizure and search—that is, the positive urinalysis results—should be sup-
pressed. We agree.
A. Probable Cause
We begin our review with the search authorization itself, and we must de-
termine whether or not the authorizing official, Col PN, had a substantial basis
for finding probable cause for authorizing the seizure and search of Appellant’s
urine. In conducting this analysis, we turn to SSgt AM’s affidavit, which pro-
vided Col PN with the information he used to make his determination. As dis-
cussed above, SSgt AM’s affidavit both excluded pertinent information and in-
cluded information which was inaccurate. Reduced to its key components, the
information presented to Col PN was that: (1) Appellant lived in a dormitory
which began smelling like marijuana smoke the day after Appellant moved in;
(2) Jager alerted on Appellant’s hallway once, Appellant’s door twice, and Ap-
pellant himself twice; and (3) Appellant had previously faced drug-related
charges. The first piece of information is significant in that it permits the in-
ference that because the dormitory only started smelling like marijuana smoke
immediately after Appellant moved in, Appellant was likely the source of that
smell, which would only exist by virtue of burning marijuana. In other words,
the timing would suggest Appellant moved into the dormitory and promptly
started smoking marijuana, creating the smell which persisted through the
date of the dormitory investigation. SSgt AM’s affidavit, however, omitted the
fact the witness who provided the information about the building smelling like
marijuana supplied not one, but two dates, which indicated the dormitory had
that same smell a week before Appellant moved in. Such detail, had it been
included in the affidavit, would have eliminated the significance of the first
piece of information Col PN received, as it sharply undermines the inference
that Appellant had been the one who introduced marijuana to the dormitory
in early March 2018, undermining the notion that Appellant was smoking ma-
rijuana at all. The more obvious conclusion is the marijuana odor that existed
when Appellant moved in was caused by someone else, not Appellant.
12
United States v. Hernandez, No. ACM 39606
The second piece of information Col PN received—Jager’s alerts—was par-
tially incorrect, as Jager did not alert on Appellant’s door at all, let alone twice.
The military judge rejected this claim, as do we. Considering Jager alerted
twice in front of Appellant himself, the elimination of the two alerts on his door
does not undermine the notion Jager alerted in Appellant’s vicinity. The inclu-
sion of these additional alerts, which occurred after Appellant had departed
the area, would lead to the conclusion that a residual odor of a controlled sub-
stance existed at the entry to Appellant’s room. Such a conclusion, however,
would seem to be rendered less significant, or at least more ambiguous, by the
fact Jager did not alert inside of Appellant’s room. In any event, Jager’s two
alerts immediately in front of Appellant are the most significant points here,
because they indicate a controlled substance or the residual odor of a controlled
substance existed either on or near Appellant himself. Eliminating the two
alerts on the door from the probable-cause analysis arguably enhances the fo-
cus on Appellant, as one could infer that the absence of the later alerts indi-
cates the drug evidence was on Appellant’s person in that it disappeared when
Appellant himself left the area.
By including the omitted date of the smell of marijuana and excluding the
reference to two alerts on Appellant’s door, Col PN was left with Jager’s alert
on Appellant’s hallway and his two alerts in front of Appellant, along with the
fact Appellant had previously faced drug-related charges. A drug detection
dog’s alert can, in and of itself, be the basis for a probable cause search for the
drugs themselves. United States v. Boisvert, 1 M.J. 817, 819 (A.F.C.M.R. 1976).
In Boisvert, the Air Force Court of Military Review found that “[w]hen a dog
has been trained to detect the odor of drugs and this capability has been
proven, sufficient probable cause exists to search any person or property upon
which such a dog has alerted.” Id. The United States Court of Military Appeals
similarly found that “[c]onsidering the proven capability of [a] dog to detect the
odor of marijuana,” that dog’s alert on a vehicle arriving at a checkpoint pro-
vided “sufficient probable cause to search the [vehicle’s] occupants.” United
States v. Unrue, 47 C.M.R. 556, 560 (C.M.A. 1973). The CAAF later found suf-
ficient probable cause to search an Airman’s stereo speaker “[b]ased on the
demonstrated reliability of [a] drug dog’s ability” to detect the odor of mariju-
ana. United States v. Jackson, 48 M.J. 292, 296 (C.A.A.F. 1998). The common
thread tying each of these cases together is the concept of reliability: for prob-
able cause to exist for a search based upon a drug detection dog’s alert, that
dog must have a “proven capability” and “demonstrated reliability” to detect
illegal drugs. See Jackson, 48 M.J. at 296; Unrue, 47 C.M.R. at 560; Boisvert,
1 M.J. at 819; see also United States v. Alexander, 34 M.J. 121, 125 (C.M.A.
1992). Here, SSgt AM’s affidavit included no information about Jager’s quali-
fications, capabilities, or past performance. Col PN, however, was personally
responsible for certifying the working dogs, which meant Col PN would review
13
United States v. Hernandez, No. ACM 39606
the dogs’ performance history. Despite not recalling whether he certified Jager,
Col PN understood the certification process and presumed Jager had been cer-
tified either by himself or someone acting in his stead. Viewing these facts in
the light most favorable to the Government, we will infer Jager had a demon-
strated capability to detect the five drugs he was certified on.
What is entirely absent from the evidence and what we will not infer is
Jager’s capability to detect drugs inside of a person—specifically, the remnants
or metabolites of drugs within a person’s bodily fluids (at least so long as those
fluids remain inside the person). Col PN was provided no information from
which he could conclude Jager had the ability to detect drugs inside of a person,
the evidence of which might be found in a urine sample seized from that per-
son. SSgt PO testified Jager did not have the capability to do so, and consider-
ing the Air Force prohibits using military working dogs to search people out of
safety concerns, we see no basis for Col PN to conclude otherwise. Col PN’s own
testimony further indicates that he did not believe Jager could or did detect
evidence of Appellant’s drug use inside of Appellant’s body, as when he was
asked what he thought Jager was alerting to when he sat next to Appellant,
Col PN said the controlled substance would have been “[i]n his clothes, his hair,
his skin. I couldn’t say, but [Jager] was hitting on something.” Notably absent
from Col PN’s list of possibilities is the suggestion that Jager was alerting to
drugs inside of Appellant’s body.
Col PN was aware of Appellant’s prior drug-related conviction, and SSgt
AM’s affidavit generically noted Appellant “was previously serving punitive
actions for drug related charges.” Col PN, however, was uncertain what drugs
Appellant had been convicted of being previously involved with and mistakenly
surmised those drugs included both marijuana and cocaine. The notion that a
magistrate’s awareness of a subject’s criminal history lends support to a find-
ing of probable cause for a search authorization has some basis in military jus-
tice precedent. See United States v. Stuckey, 10 M.J. 347, 363 (C.M.A. 1981)
(citations omitted) (a commander authorizing a search “may have seen police
reports concerning a suspect or know of his reputation, prior convictions, or
nonjudicial punishments. Some of the commander’s information may be . . . of
sufficient reliability so that . . . it would help support a search warrant.”). 8 But
our superior court has cautioned this premise comes with the significant caveat
8 The military judge did not analyze the impact of Appellant’s prior conviction in his
ruling; however, amicus counsel for the Government argues the prior conviction should
be considered as a basis for finding probable cause. The Supreme Court has concluded
such information is not “entirely irrelevant,” but has rejected the argument that a pre-
vious criminal record alone may support probable cause, as such a conclusion “would
be to hold that anyone with a previous criminal record could be arrested at will.” Beck
v. Ohio, 379 U.S. 89, 97 (1964).
14
United States v. Hernandez, No. ACM 39606
that a magistrate’s failure to obtain evidence under oath when feasible to do
so “has neglected a simple means for enhancing the reliability of his probable
cause determination,” which “may prove fatal” to a finding of probable cause
in a marginal case. Id. at 364–65. Here, SSgt AM’s affidavit was notably vague
with respect to Appellant’s prior misconduct. There is also no indication Col
PN sought to clarify the nature of Appellant’s prior conviction or its underlying
misconduct, as had he done so he would have known Appellant’s prior conduct
did not involve marijuana, which was the subject of the dormitory search. Even
viewing Appellant as someone who was known to have generally abused con-
trolled substances in the past by virtue of his conviction, we do not find that
fact provided support for the magistrate’s probable cause determination here
given the absence of any attempt to obtain greater detail about Appellant’s
prior misconduct. The significance of Appellant’s earlier conviction is also min-
imized by the fact the charged timeframe of Appellant’s prior misconduct ter-
minated more than a year before Col PN provided his search authorization.
Therefore, we conclude Appellant’s prior conviction provided negligible support
for concluding Appellant’s urine contained evidence of drug use a year later.
Viewing the evidence in the light most favorable to the Government, Jager
provided Col PN with probable cause to believe that Appellant had drugs or
the residual odor of drugs on or near him. Col PN did not have probable cause
to believe Appellant had drugs in him. The Government argues that taking
Jager’s alert together with the fact no drugs were found during the search of
Appellant and his belongings allowed Col PN to deduce Appellant had ingested
the drugs. Notably, Col PN did not testify he made that deduction. Moreover,
we are not convinced that a person who has the odor of controlled substances
on or near them, without more, gives rise to probable cause to believe the per-
son has evidence of drug use in their urine. Although Jager’s alert indicated
the odor of drugs on or near Appellant, giving rise to the possibility Appellant
had handled and used drugs, leaving some degree of residue or odor on his
person, it seems equally possible Appellant had handled, but not used, drugs,
or that he was simply wearing clothes which had absorbed the odor of drugs
independently of any use by Appellant. Perhaps Appellant had previously kept
drugs in his pocket at some indeterminate time in the past and disposed of
those drugs, leaving some residue behind; perhaps he merely sat on a contam-
inated surface such that his clothes picked up a detectable scent; perhaps Ap-
pellant touched a contaminated item, and Jager could smell the residue on his
hands—not a far-fetched possibility given the pervasiveness of the drug odors
in his dormitory building. These, however, are all merely possibilities, and the
Fourth Amendment operates as a bulwark against governmental intrusions
based on what is simply possible. Instead, probable cause requires establishing
a fair probability that evidence will be found in a particular place. Nieto, 76
15
United States v. Hernandez, No. ACM 39606
M.J. at 105 (quoting Rogers, 67 M.J. at 165). We would typically give the mag-
istrate’s determination great deference, but our conclusion below that SSgt AM
prepared his affidavit with reckless disregard for the truth renders that defer-
ence inapplicable in this case. Upon our review, even viewing the military
judge’s conclusions of law and all the evidence on this issue in the light most
favorable to the Government, we conclude Col PN was lacking probable cause
to believe evidence of drug use would be found in Appellant’s urine. The mili-
tary judge abused his discretion in finding otherwise.
B. Waiver
The Government argues that even if probable cause was lacking to author-
ize the seizure and search of Appellant’s urine, the good faith exception in Mil.
R. Evid. 311(c)(3) saves the positive results of the urinalysis from exclusion.
Appellant’s response is the exception is unavailable to the Government due to
SSgt AM’s reckless disregard for the truth in drafting his affidavit. Before we
reach the question of whether SSgt AM recklessly disregarded the truth, we
must first determine whether Appellant adequately preserved this issue for
appeal.
Our superior court, CAAF, has held that in the context of suppression ar-
guments, an accused must not just make particularized objections to the prob-
able cause supporting the search itself—he or she must also make particular-
ized arguments as to why an exception to the exclusionary rule does not apply.
Perkins, 78 M.J. at 390. Arguments not made at trial with respect to exclusion-
ary rule exceptions are waived on appeal. Id. Amicus Curiae for the Govern-
ment argues Appellant is precluded from asserting on appeal that SSgt AM
recklessly disregarded the truth in drafting his affidavit under the theory Ap-
pellant did not raise the issue at trial, thereby waiving the claim. 9 We find
Appellant’s preservation of the issue a close call, but we conclude he did pre-
serve the matter for appeal.
Amicus Curiae for the Government points out trial defense counsel’s argu-
ment on the motion largely focused on the existence of probable cause for the
seizure and search of Appellant’s urine, never using the phrase “reckless dis-
regard” and beginning their motion argument at trial with, “[T]he [D]efense’s
entire position is that there was not [a] reasonable belief that [Appellant’s]
urinalysis would be positive based on the evidence . . . .” Amicus Curiae is cor-
rect, but we are mindful of our presumption against finding waiver of consti-
tutional matters as well as the fact our superior court has recently held that
9The Government does not specifically allege Appellant waived this issue, instead ar-
guing that he provided no evidence in support of the claim SSgt AM recklessly disre-
garded the truth.
16
United States v. Hernandez, No. ACM 39606
the failure to utter “the talismanic words ‘false’ or ‘reckless disregard for the
truth’” is not necessarily fatal to an appellant’s ability to attack the good faith
exception on those grounds. Blackburn, 2020 CAAF LEXIS 405, at *9–11.
Trial defense counsel specifically stated they were not accusing SSgt AM of
“any improper conduct.” Yet, in that same sentence, trial defense counsel said
the affidavit “poses some concerns,” then immediately argued the affidavit did
not present a “fair picture,” some portions of the affidavit were “misleading,”
and the affidavit would have “maybe” been “written differently” had SSgt AM
consulted SSgt PO before drafting it, especially with respect to Jager’s capabil-
ities. On one point, trial defense counsel described the affidavit as “just not
true.” Trial defense counsel further said SSgt AM “left out a lot of important
facts” and the affidavit was insufficient, arguing “it just didn’t include all of
the facts and circumstances of what actually occurred. It included, you know,
I don’t want to say false, but misleading information and just didn’t include
the full picture. I don’t think that the good faith exception should apply in this
case.” On appeal, Appellant similarly does not accuse SSgt AM of intentionally
including false information in his affidavit, instead arguing that he recklessly
disregarded the truth in drafting it. In response to trial defense counsel’s mo-
tion and argument, the Government argued at trial the Defense had not shown
SSgt AM drafted his affidavit falsely or with reckless disregard for the truth,
and the military judge included in his ruling his conclusion SSgt AM had not
done so.
Although trial defense counsel could have been more precise in spelling out
a “reckless disregard” argument for rejecting the good faith exception to the
exclusionary rule, the fact both trial counsel and the military judge specifically
sought to counter the argument tells us they both understood Appellant to
have raised the issue. 10 Moreover, trial defense counsel’s characterization of
the affidavit as omitting “a lot of important facts,” not being a “fair picture,”
and being—in parts—misleading and “just not true” directly challenged the
overall integrity of the affidavit and the affiant. We conclude Appellant’s attack
on the affidavit at trial adequately asserted SSgt AM recklessly disregarded
the truth when he drafted his affidavit and presented it to the magistrate in
support of his effort to seize Appellant’s urine. Trial defense counsel’s disa-
vowal of any “improper conduct” on SSgt AM’s part is not inconsistent with our
conclusion, as the exception to the good faith rule describes affiants who in-
clude information they knew was false or information which they would have
10The fact the Government at trial addressed the “reckless disregard” exception to the
good faith rule demonstrates that the Government was not deprived of the ability to
present evidence that could be reviewed on appeal, a primary reason for insisting on
particularized objections at trial. See United States v. Stringer, 37 M.J. 120, 132
(C.M.A. 1993) (Wiss, J., concurring in the result).
17
United States v. Hernandez, No. ACM 39606
known was false but for their reckless disregard of the truth. The former calls
for an intentional misrepresentation of the facts, whereas the latter requires
only recklessness, which is characterized by disregarding foreseeable conse-
quences. See, e.g., United States v. McDuffie, 65 M.J. 631, 635 (A.F. Ct. Crim.
App. 2007) (citation omitted). A review of the argument trial defense counsel
made at Appellant’s court-martial leads us to conclude Appellant has pre-
served this issue for appeal.
C. Good Faith
Although Col PN lacked probable cause to order the seizure and search of
Appellant’s urine, the results of the urinalysis would still be admissible if the
Government can establish that an exception to the exclusionary rule applies.
Here, the Government contends the good faith exception should preserve the
admissibility of the evidence. Appellant argues the exception should not apply
because SSgt AM executed his affidavit with reckless disregard for the truth.
We agree with Appellant.
Under Leon, the good faith exception does not apply when a magistrate is
“misled by information in an affidavit that the affiant knew was false or would
have known was false except for his reckless disregard of the truth.” 468 U.S.
at 923 (citations omitted). This implicates the third prerequisite for finding the
exception under military law: that the person seeking and executing the search
authorization “reasonably and with good faith relied on the issuance of the au-
thorization.” Mil. R. Evid. 311(c)(3)(C); Carter, 54 M.J. at 421. In this case,
SSgt AM included false information about Jager alerting on Appellant’s door.
He also omitted the fact the dormitory building reportedly smelled of mariju-
ana prior to Appellant moving in. He further omitted the fact that Jager’s han-
dler told him that a dog alerting on a person was out of the ordinary and “not
usual.” He did not include any discussion of the fact that not only did Jager
have no demonstrated capabilities with respect to searching and detecting con-
trolled substances on people, Air Force regulations entirely prohibit using mil-
itary working dogs to search people. Under the circumstances, such infor-
mation is the kind of information a reasonable person would have known the
magistrate would have wanted to know. See, e.g., Blackburn, 2020 CAAF
LEXIS 405, at *10–11 (citation omitted). This is so because it would have likely
led a magistrate to inquire into what a dog’s capabilities are with respect to
detecting drugs or residual odors on a person.
As discussed above, had SSgt AM included the fact the dormitory resident
who identified the dates she smelled the odor of marijuana in the building, the
magistrate would have understood the odor did not inculpate Appellant. By
selectively including only the date after which Appellant moved into the dor-
mitory, SSgt AM created a misleading factual scenario in which it appeared
Appellant moved into the dormitory and within just a few days, the building
18
United States v. Hernandez, No. ACM 39606
began smelling of marijuana. The implication, of course, is that Appellant was
tied to the introduction of the odors, because no evidence was presented to Col
PN that the odors predated Appellant’s arrival. Based upon the affidavit as it
was written, a reviewing magistrate would be led to believe Appellant was the
source of the odors; that is, that he was smoking marijuana in the building,
and that he persisted in smoking marijuana through SrA AC’s detection and
reporting of the odor a month later. Although there was nothing false about
the fact in the affidavit that the building smelled like marijuana after Appel-
lant moved in, the omission of the fact it smelled that way before he moved in
was highly misleading, as that second fact refutes the implication that Appel-
lant was using marijuana. By any measure, a reasonable person who heard
Appellant’s dormitory building smelled like marijuana shortly after he moved
in would want to know that the odors did not first arrive after Appellant moved
in, but were actually present before he did so. By extension, a reasonable per-
son would understand a magistrate being asked to authorize a seizure and
search based, in part, upon odors allegedly corresponding with Appellant’s ar-
rival at the dormitory would want to know the odors were there prior to that
arrival. Withholding such plainly relevant information in this case amounts to
a reckless disregard for the truth, which was that the odors preceded Appel-
lant’s arrival. As a result of SSgt AM excluding this information, Col PN was
misled to incorrectly believe the odors were only noticed “the day after [Appel-
lant] moved back into the dorms.”
SSgt AM also excluded from his affidavit the fact Jager had no demon-
strated capability of identifying the scent of drugs in or on a person as well as
the fact military working dogs are prohibited from being used to search people
at all (leading to the inference they do not train to do so). At the time Jager sat
in front of Appellant, SSgt PO told SSgt AM that Jager does not normally alert
on people and that his alerting on Appellant was “not usual,” yet SSgt AM
made no mention of this in his affidavit. Instead, SSgt AM simply noted in his
affidavit that Jager “immediately sat and stared” at Appellant twice without
amplifying the meaning or limitations of this alert. As is the case with the fact
a dormitory resident detected the odor of marijuana after Appellant moved in,
there is nothing false about the fact Jager sat and stared at Appellant. What
is absent from the affidavit, however, is the surrounding context of Jager sit-
ting and staring at him. A reasonable person would want to know what a work-
ing dog’s capabilities are with respect to being able to detect drugs in or on a
person when confronted with such a situation as presented here. While SSgt
AM, who was not Jager’s handler, may not have ordinarily known many spe-
cifics about Jager’s training, capabilities, and permitted uses, SSgt PO told
SSgt AM at the time of the search that Jager’s actions were “not usual” and
that it was abnormal of him to alert on a person. Despite being aware of this
19
United States v. Hernandez, No. ACM 39606
anomaly, SSgt AM left the information out of his affidavit. Had it been in-
cluded, the magistrate would have been put on notice to inquire further about
the meaning—or lack thereof—of Jager sitting in front of Appellant, and what
that said about the likelihood of finding evidence of drug use in Appellant’s
urine.
SSgt AM further included incorrect information in his affidavit by assert-
ing Jager alerted on the door to Appellant’s room on two different occasions.
This claim was specifically rejected by SSgt PO, leading the military judge to
similarly decline to find it had been shown by a preponderance of the evidence.
The inclusion of these two claimed alerts was misleading in that it both further
connects Appellant to drug activity and sidesteps the infirmity of Jager alert-
ing on Appellant himself. The Government has suggested the theory that Ja-
ger’s alert on Appellant is indicative of Appellant’s recent use of drugs, the
theory being that Appellant had consumed some amount of a drug and left
remnants or odors of the drug behind on his clothes or person. Yet, Jager failed
to alert inside of Appellant’s room, undermining the Government’s theory to a
degree, at least insofar as the theory involved Appellant using the drugs in his
room. If Appellant had, in fact, consumed drugs in his room leaving some tell-
tale residue or odor on his person, one would expect Jager to have similarly
alerted in or around Appellant’s room, especially given that the entire premise
of the investigation was that someone was smoking marijuana inside the dor-
mitory building. This highlights the significance of the erroneous claim that
Jager alerted twice on the door to Appellant’s room: it suggests evidence of the
presence of drugs not just on Appellant’s person, but in the immediate proxim-
ity of his room as well, resolving the doubt arising from Jager not alerting in-
side Appellant’s room. With the inclusion of these standard (but untrue) alerts
on Appellant’s door, one would more readily conclude that Appellant had re-
cently consumed drugs—leaving traces of a drug near his room—and that the
evidence of that use was likely to be found in Appellant’s urine in light of the
fact no drugs were found on Appellant’s person or in his room. Without these
alerts on the door, however, the magistrate was left with nothing more than
Jager’s problematic alerts on Appellant himself.
Taking the purported alerts on Appellant’s door, the alerts on Appellant’s
person, the pervasive smell of marijuana in the building, and the claim the
smell only appeared once Appellant moved in all together would lead to the
fairly natural conclusion that Appellant was smoking marijuana in the dormi-
tory building. But one only arrives at that conclusion by virtue of SSgt AM both
omitting important information diminishing the significance of the facts he did
include and including erroneous information that overstated the case for con-
cluding Appellant had recently consumed drugs such that a seizure of Appel-
lant’s urine could be validly authorized. Moreover, we need not hypothesize as
to whether the magistrate considered these matters—Col PN testified he did,
20
United States v. Hernandez, No. ACM 39606
saying that he based his authorization on “[t]he fact that the dog sat on [Ap-
pellant’s] floor, and sat when he came out, and sat each time it passed his room,
and then on the second floor that someone actually could—said that the smell
of marijuana started the day after he moved back into the dorms.”
We conclude SSgt AM was not simply negligent in drafting his affidavit.
With respect to the odors in the dormitory building, SrA AC testified he told
SSgt AM about the dormitory resident who said she smelled marijuana in the
building both before and after Appellant moved in. We have little reason to
question SrA AC’s veracity on this point, as SrA AC documented the two dates
the resident said she smelled marijuana in his notes which he was taking at
the time of the search. SSgt PO testified he told SSgt AM that Jager’s alert on
Appellant was unusual. No witness or other evidence supported SSgt AM’s
claim Jager alerted twice on Appellant’s door; in fact, SSgt PO specifically re-
jected this claim. Assuming SSgt AM did not intentionally include false infor-
mation about Jager alerting on the door, we find his failure to confirm this
information with SSgt PO—Jager’s handler—prior to executing his affidavit to
be a reckless disregard for the truth of the matter. Considering the affidavit as
a whole, we find it to be crafted in such a way as to focus the magistrate’s
attention on Appellant, to overstate the facts supporting a conclusion that Ap-
pellant was using drugs, and to minimize or omit information that would give
rise to obvious reasons to doubt the allegation. As a result, SSgt AM’s affidavit
painted a wholly inculpatory picture, misleading Col PN in his determination
of probable cause to grant the search authorization in spite of the shortcomings
in the factual basis for doing so. We conclude SSgt AM drafted his affidavit
with a reckless disregard for the truth, and it was clear error for the military
judge to conclude otherwise.
D. Exclusion
In spite of the unlawful seizure and search in this case, the resulting evi-
dence will still not be excluded unless such exclusion “results in appreciable
deterrence of future unlawful searches or seizures and the benefits of such de-
terrence outweigh the costs to the justice system.” Mil. R. Evid. 311(a). Based
upon the facts here, we conclude exclusion is appropriate. SSgt AM’s reckless
disregard for the truth in drafting his affidavit led to the involuntary seizure
of Appellant’s bodily fluids and the subsequent analysis of those fluids for evi-
dence of criminal conduct. As a result, Appellant was forced to turn over the
evidence which incriminated him, evidence which was contained within the
sanctity of his body. Despite the fact military members are routinely called
upon to provide urine samples in order to maintain military readiness, these
members do not forfeit their rights under the Fourth Amendment by virtue of
volunteering for military service. Breaching a person’s bodily integrity in order
to search for evidence is a substantial invasion of an individual’s right, and
21
United States v. Hernandez, No. ACM 39606
such an invasion must be based upon probable cause absent extenuating cir-
cumstances not presented here. This calls for a scrupulous adherence to the
procedures for obtaining a search authorization, which—at the very mini-
mum—means insisting upon supporting affidavits prepared with due care and
without a reckless disregard for the truth. The deterrent effect of excluding the
evidence in this case is significant, as it will serve to reinforce the seriousness
of seeking search authorizations which grant permission to overbear service-
members’ constitutional protections without misleading the magistrates
charged with upholding those protections.
The cost in excluding the evidence in Appellant’s case is comparatively less.
Although drug abuse by servicemembers is criminal, Appellant’s case involves
a single use of a controlled substance with no apparent impact on his unit or
the military mission. We are also mindful of the fact Appellant had been con-
victed at a prior court-martial and sentenced to a punitive discharge, and the
appellate review of that trial is complete, having upheld both his conviction
and his sentence. 11 His misconduct occurred during a period after his release
from confinement, while he was awaiting placement on appellate leave, and
during or just after a period of weeks in which he was assigned no military
duties. Although this timing does not excuse Appellant’s misconduct, it places
it in context and reveals it as distinctly non-aggravated, which, in turn, dimin-
ishes the costs to the justice system. Weighing this relatively low cost against
the paramount importance of safeguarding servicemembers’ constitutional
rights, we conclude exclusion of the results of Appellant’s urinalysis is the ap-
propriate and just outcome. 12
IV. CONCLUSION
Appellant’s conviction was based solely upon the results of his urinalysis.
Therefore, we cannot conclude Appellant would have been found guilty of the
sole specification he was charged with in the absence of that evidence. The
finding of guilty to the Charge and Specification is SET ASIDE. The sentence
is SET ASIDE and the case is returned to The Judge Advocate General for
11United States v. Hernandez, No. ACM. 39346, 2019 CCA LEXIS 15 (A.F. Ct. Crim.
App. 16 Jan. 2019) (unpub. op.), rev. denied, 79 M.J. 61 (C.A.A.F. 2019).
12 Because our decision in this case results in the sole specification being set aside, we
do not address whether Appellant is entitled to relief for post-trial delay under either
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), or United States v. Tardif, 57
M.J. 219 (C.A.A.F. 2002). Should Appellant’s case return to us, we will consider the
issue of delay at that time.
22
United States v. Hernandez, No. ACM 39606
remand to the convening authority. A rehearing may be ordered, or, if a re-
hearing is deemed to be impractical, the Charge and Specification shall be dis-
missed.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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