United States v. Rogers , 67 M.J. 162 ( 2009 )

UNITED STATES, Appellee
v.
Eddie J. ROGERS, Technical Sergeant
U.S. Air Force, Appellant
No. 08-0518
Crim. App. No. 36768
United States Court of Appeals for the Armed Forces
Argued December 3, 2008
Decided January 22, 2009
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Lance J. Wood (argued); Major Shannon A.
Bennett (on brief); Lieutenant Colonel Mark R. Strickland.
For Appellee: Captain G. Matt Osborn (argued); Colonel Gerald
R. Bruce and Captain Ryan N. Hoback (on brief); Major Donna
Rueppell.
Military Judge: Donald Plude
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rogers, No. 08-0518/AF
Judge BAKER delivered the opinion of the Court.
A court-martial composed of members convicted Appellant,
contrary to his pleas, of wrongfully using cocaine on divers
occasions, in violation of Article 112a, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 912a (2000). The adjudged
and approved sentence consisted of six months confinement, a bad
conduct discharge, and reduction to E-4. The United States Air
Force Court of Criminal Appeals affirmed after modifying the
findings and reassessing the sentence. United States v. Rogers,
No. ACM 36768, 2008 CCA LEXIS 64 at *9, 2008 WL 514227 at *3
(A.F. Ct. Crim. App. Feb. 27, 2008). We granted review of the
following issue:
WHETHER THE MILITARY JUDGE ERRED IN DENYING
APPELLANT’S MOTION TO SUPPRESS HIS HAIR TEST RESULTS.
The question presented is whether probable cause existed to
issue the search authorization. For the following reasons, we
affirm.
FACTS
In his Findings and Conclusions re: Defense Motion to
Suppress Seizure of Hair (Jan. 31, 2006) (Findings/Conclusions),
the military judge made the following findings of fact, in
relevant part:
2. On 28 Apr 05, a document turned up missing in the
Command Support Section of the 29th Intelligence
Squadron. . . . When SrA [T] called the accused later
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that morning, he told her to come to his house because
he wanted to talk to her.
3. SrA [T] arrived at the accused’s off-base home
around 1310 hours on 28 Apr. After discussing the
missing document for a while, SrA [T] alleges the
accused offered her cocaine, used cocaine himself,
offered her money for sexual intercourse, grabbed her
hand and rubbed it on his penis, and exposed his penis
to her . . . .
4. Sometime after returning to her office, SrA [T]
talked to SSgt McElvaine about what happened at the
accused’s house. . . .
5. . . . [O]n 28 Apr, SrA [T]’s first sergeant called
Special Agent Brian McPherson and informed him of SrA
[T]’s allegations against the accused, including the
drug allegations. Agent McPherson interviewed SrA [T]
the following morning [on 29 Apr]. Following that
interview, SrA [T] prepared and signed under oath a 5-
page statement regarding the events of 28 Apr 05. In
the statement . . ., she stated she saw the accused
snort three lines of white powder . . . . About five
minutes after using the powder, she said the accused
started sweating and talking more rapidly and became
sexually aggressive toward her. She also told Agent
McPherson the accused . . . informed her he got in
trouble at his last base for drug use but got out of
it . . . . SrA [T] also said the accused told her he
wasn’t worried about a urinalysis because he took a
special drink to clean out his system.
6. Since SrA [T] was alleging she was the victim of
an indecent assault, Agent McPherson treated her as a
victim, consistent with OSI policy, rather than as an
informant and accepted what she told him as true. . .
. Based on everything he knew about the case, Agent
McPherson believed SrA [T]’s account of what occurred
at the accused’s house was credible.
7. . . . Agent McPherson interviewed the accused
under rights advisement on 2 May. The accused waived
his rights and made a written statement in which he
denied SrA [T]’s allegations. The accused also agreed
to provide a urine sample for drug testing . . . . On
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17 May 05, word was received that the accused’s urine
sample tested negative for cocaine.
8. . . . In discussing the matter with [Special]
Agent [Jeremy] Gage[, OSI’s Forensic Science
Consultant], Agent McPherson told him everything he
knew about the case. Agent Gage told him the chances
of finding traces of cocaine in the accused’s hair was
likely if the accused was a chronic user and if he
consumed a considerable amount of the drug. . . .
Agent Gage advised [Agent] McPherson that he believed
there was probable cause for doing a hair analysis.
9. On 13 Jun, Agent McPherson discussed whether there
was probable cause for a hair analysis with Capt
Sheila Stoffel, Staff Judge Advocate for the 70th
Intelligence Wing. She opined there was. Thereafter,
Agent McPherson prepared an affidavit to present to a
military magistrate to obtain a search authorization
for the hair analysis. This was the first time Agent
McPherson had been involved in obtaining a search
authorization. Consequently, he prepared the
affidavit . . . with the assistance of the OSI
detachment’s OIC . . . . However, neither ran the
finished affidavit by the legal office . . . .
10. Col Wayne McCoy, the 70th Operations Group
commander, was the military magistrate who approved
the search authorization at issue. Agent McPherson
met with him on 20 Jun 05 and gave him the affidavit .
. . after being sworn to it. The affidavit didn’t
include some important information that was then known
by Agent McPherson. Specifically, it didn’t note that
a court-martial at Maxwell AFB had acquitted the
accused in Apr 04 of using cocaine; nor did it mention
that the accused gave a urine sample on 2 May 05 that
later tested negative for cocaine and that he denied
the allegations made by SrA [T]. However, Agent
McPherson testified that he orally discussed all these
matters with Col McCoy. Col McCoy testified that
Agent McPherson orally summarized the affidavit and he
asked the agent about the Maxwell urinalysis and some
other questions, but he recalls few other specifics of
what they discussed. Although the defense has sought
to attack the credibility of Agent McPherson, the
Court finds his testimony credible and finds that he
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orally informed Col McCoy of the previously noted
details that were missing from the affidavit.
11. . . . Col McCoy had a general knowledge of hair
testing from some scientific reading he did on the
subject in the late 1980s. Specifically, he knew that
the military was pursuing other scientific means for
testing for drugs and that hair and fingernails were
believed to retain evidence of drug use for a much
longer period of time than urine.
12. Although Col McCoy didn’t have any information on
the background or qualifications of Agent Gage, he was
aware that OSI agents assigned as forensic science
consultants are considered as experts on . . . DNA and
hair testing. Consequently, he gave Agent Gage’s
opinion . . . a lot of weight.
13. At the end of the meeting with Agent McPherson on
20 Jun 05, Col McCoy signed a written authorization to
take body hair from the accused for drug testing. On
21 Jun 05, . . . a technician . . . cut pieces of hair
from under the accused’s armpits. On 28 Jun 05, that
hair was sent to a laboratory . . . for drug testing.
Subsequent tests of the accused’s hair indicated the
presence of cocaine.
Appellant argues that probable cause did not exist because
the affidavit was inadequate, Senior Airman (SrA) T’s veracity
went unchecked, and Colonel (Col) McCoy acted as a rubber stamp
magistrate. In addition, at oral argument Appellant attacked
the credibility of Agent McPherson by emphasizing Col McCoy’s
testimony that he believed that Agent McPherson held the rank of
major because “[h]e told me he was a [m]ajor.”1 Based on this
1
The exchange between defense counsel and Col McCoy proceeded as
follows:
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statement, Appellant argues that the affidavit as a whole is
incredible and the military judge abused his discretion in
finding that the totality of the circumstances supported
probable cause.
ANALYSIS
A military judge reviews a magistrate’s decision to issue a
search authorization to determine whether the magistrate had a
substantial basis for concluding that probable cause existed.
United States v. Bethea, 61 M.J. 184, 187 (C.A.A.F. 2005). A
magistrate has a substantial basis to issue a warrant 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. Illinois v. Gates, 462 U.S. 213, 238
(1983); United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F.
[Defense Counsel]: Now when you met with Agent
McPherson, what was your understanding of his position
at the detachment?
[Col McCoy]: That he was the commander of the OSI
detachment.
[Defense Counsel]: And what was your impression of
his rank then?
[Col McCoy]: He’s a Major. He told me he was a
Major.
[Defense Counsel]: He did at the time he met with
you?
[Col McCoy]: Yes.
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2007). In light of the constitutional preference for warrants,
substantial deference is afforded in cases where a magistrate
determines that probable cause exists. Gates, 462 U.S. at 237.
We review a military judge’s ruling on a motion to suppress
for an abuse of discretion. United States v. Ayala, 43 M.J.
296, 298 (C.A.A.F. 1995). An abuse of discretion exists if the
military judge found clearly erroneous facts or misapprehended
the law. Leedy, 65 M.J. at 213. Further, we review the facts
in the light most favorable to the prevailing party below. Id.
On the one hand, the magistrate had access to a litany of
facts that could support a finding of probable cause. First,
there is the statement of SrA T, as reported in the affidavit.
SrA T informed the Office of Special Investigations (OSI) that
she witnessed Appellant engage in criminal conduct in his own
residence. Among other things, SrA T stated, as quoted in the
affidavit, that “[s]he witnessed [Appellant] inhale the ‘lines’
of ‘powder’ through his nose” and Appellant “also informed [SrA
T that] he got in trouble for drug use at his last assignment
but got out of it.” Notably, the amount of cocaine in question
was suggestive of frequent or binge use. As to SrA T’s
credibility, OSI viewed SrA T as both a witness and a victim; in
such a case, OSI policy infers the truth of the allegations.
Further, there is evidence in the affidavit supporting the
veracity and basis of knowledge of SrA T’s statements. Bethea,
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United States v. Rogers, No. 08-0518/AF
61 M.J. at 187. SrA T was not an informant, but a witness, and
therefore the Government carried no burden to demonstrate her
reliability beyond that generally required of any witness.
United States v. Martinelli, 454 F.3d 1300, 1307 (11th Cir.
2006); 2 Wayne R. LaFave, Search and Seizure § 3.4(a), at 225
(4th ed. 2004). In any event, corroboration of SrA T’s veracity
exists. For example, SrA T was aware of Appellant’s 2004 court-
martial charges and she described a scar on Appellant’s stomach,
neither of which were a matter of general knowledge within the
squadron.2 SrA T’s knowledge of these personal matters were
corroborated before submission of the affidavit, tending to
demonstrate SrA T’s veracity. Moreover, SrA T made these
statements in person. OSI agents therefore had the opportunity
to evaluate her credibility firsthand. The affidavit further
supported the veracity of SrA T’s statements by acknowledging
2
Agent McPherson had the following exchange with trial counsel:
[Agent McPherson]: . . . [SrA T] was able to identify
certain features about the accused.
[Trial Counsel]: Such as?
[Agent McPherson]: Such as -- such as him getting in
trouble at Maxwell for a similar situation. Such as,
him having a scar on his stomach that he received from
surgery. When I spoke with the accused he -- when
asked about distinguishing marks, features on his
body, he said, “Yes I do have a scar on my stomach”
that he obtained from surgery.
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that she promptly reported the incident to her chain of command
and that her statements remained consistent.
Second, Agent McPherson briefed Col McCoy for about twenty-
five to thirty minutes, and although Col McCoy had a poor
recollection of the details, he remembered discussing the case
with Agent McPherson. Third, an OSI forensic science consultant
confirmed that Appellant’s hair would likely reveal traces of
cocaine “if he is a chronic user, and if he consumed a
considerable amount” of cocaine. Finally, the magistrate had
personal knowledge of drug testing techniques and analysis from
his time at Goodfellow Air Force Base.
On the other hand, circumstances exist in this case that
could undercut a finding of probable cause. First, the
affidavit presented to the magistrate did not include all
potentially relevant facts. Specifically, the affidavit failed
to include facts indicating that: Appellant was SrA T’s
supervisor; Appellant had previously disciplined SrA T; SrA T
could have motive to lie; Appellant offered to take a urinalysis
and this test came back negative; Appellant denied SrA T’s
allegations; and this was Agent McPherson’s first affidavit.
The affidavit also omitted any discussion of the science
surrounding hair testing and that hair testing could be used to
prove binge use. Second, the affidavit arguably did not
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sufficiently link Appellant’s alleged crime with the assertion
that evidence of that crime would be found in Appellant’s hair.
Based on the totality of circumstances, we conclude that
the military judge did not abuse his discretion in upholding the
search authorization in this case. To the extent this case
presents a close call, we note that “‘[c]lose calls [are to] be
resolved in favor of sustaining the magistrate’s decision.’”
United States v. Monroe, 52 M.J. 326, 331 (C.A.A.F. 2000)
(citation omitted). While the affidavit could have included the
information identified above, the affidavit contained enough
evidence to establish probable cause to seize Appellant’s body
hair. Most notably, the affidavit detailed SrA T’s statements,
as a victim and witness, regarding her encounter with Appellant
at his home. Further, Agent McPherson briefed the magistrate on
some, if not all, of the information omitted from the affidavit.
In light of the record and uncertain recollections of the
actors, the military judge did not erroneously conclude that Col
McCoy knew about Appellant’s previous acquittal in April 2004,
that Appellant denied SrA T’s allegations, and that Appellant’s
most recent urine sample had tested negative.
Findings/Conclusions para. 10.
Moreover, based on the record as a whole, the military
judge’s conclusion that Agent McPherson did not “attempt . . .
to knowingly or intentionally mislead the magistrate” is not
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clearly erroneous. Id. at para. 18. At oral argument,
Appellant drew attention to Col McCoy’s testimony that “[Agent
McPherson] told [Col McCoy] he was a Major.” If indeed Agent
McPherson impersonated an officer, it would, among other things,
undercut the credibility of his affidavit. However, in our
view, and the view of the military judge, the record is not as
clear cut as Appellant argues. First, SrA T’s statements, as
conveyed to multiple witnesses, are granular and credible,
independent of what Agent McPherson did or did not say to Col
McCoy about his military grade. Second, the record as a whole
reflects that Col McCoy and Agent McPherson had uncertain and
differing recollections as to what was said during an initial
introductory meeting and the June 20, 2005, session. In fact,
the defense counsel never asked Agent McPherson whether he
recalled telling Col McCoy his pay grade, while the affidavit
correctly identified Agent McPherson as a “Special Agent” in the
Air Force OSI. On this record, a military judge might well
conclude that Col McCoy’s testimony was the product of differing
and failing recollections. Moreover, the military judge, having
observed the witnesses in this case, found that Agent McPherson
was credible and this conclusion is not clearly erroneous.
Finally, a sufficient nexus existed between the alleged
crime and the seizure of Appellant’s hair. Col McCoy relied on
his “general knowledge of hair testing” and knew that “the
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detection time of drugs in the body is somewhat limited.”
Findings/Conclusions paras. 11, 18; see also Military Rule Of
Evidence (M.R.E.) 315(f)(2)(C) (a probable cause determination
can be based on “[s]uch information as may be known by the
authorizing official”). Col McCoy also considered the advice of
the OSI forensic science consultant who possessed knowledge of
hair analysis. Findings/Conclusions para. 12. As such,
sufficient facts existed “to support a reasonable belief that
testing [Appellant’s] body hair would yield evidence of his use
of cocaine.” Id. at para. 19.
CONCLUSION
The military judge did not err in denying Appellant’s
motion to suppress. The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
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