United States v. Cowgill , 2010 CAAF LEXIS 211 ( 2010 )

UNITED STATES, Appellee
v.
James A. Cowgill, Staff Sergeant
U.S. Air Force, Appellant
No. 09-0376
Crim. App. No. S31404
United States Court of Appeals for the Armed Forces
Argued November 4, 2009
Decided March 5, 2010
BAKER, J., delivered the judgment of the Court, in which RYAN,
J., joined. STUCKY, J., filed a separate opinion concurring in
the result. ERDMANN, J., filed a separate opinion concurring in
part and dissenting in part, in which EFFRON, C.J., joined.
Counsel
For Appellant: Captain Michael S. Kerr (argued); Captain
Tiffany M. Wagner and Major Shannon A. Bennett (on brief).
For Appellee: Lieutenant Colonel Jeremy S. Weber (argued);
Colonel Douglas P. Cordova and Gerald R. Bruce, Esq. (on brief).
Military Judge: Nancy J. Paul
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cowgill, No. 09-0376/AF
Judge BAKER delivered the judgment of the Court.1
A special court-martial composed of a military judge alone
convicted Appellant, pursuant to his conditional pleas, of two
specifications of wrongful use of controlled substances and one
specification of possession of marijuana, in violation of
Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 912a (2000). Appellant was sentenced to a bad-conduct
discharge, confinement for two months, and reduction to the
grade of E-1. The convening authority approved the findings and
sentence, and the United States Air Force Court of Criminal
Appeals affirmed. United States v. Cowgill, No. ACM S31404
(A.F. Ct. Crim. App. Dec. 10, 2008). We granted review on the
following assigned issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN
DENYING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE
FROM APPELLANT’S HOME.
Whether the military judge abused her discretion depends on
whether there was a substantial basis for the civilian
magistrate to find probable cause. The answer hinges on two
questions about which this Court is twice divided. First, did
Detective (Det.) Gary Krause provide erroneous information
contained within the search warrant affidavit in reckless
1
We heard oral argument in this case at Fort Campbell, Kentucky,
as part of the Court’s “Project Outreach.” This practice was
developed as a public awareness program to demonstrate the
operation of a federal court of appeals and the military justice
system.
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disregard for the truth? Second, if so, was there nonetheless
sufficient independent information contained within the
affidavit to provide a substantial basis to find probable cause?
For the reasons set forth below, a majority of this Court
concludes that there was a substantial basis to find probable
cause. Therefore, the military judge did not abuse her
discretion, the evidence was properly admitted and the case is
affirmed.
BACKGROUND
On January 5, 2007, Air Force Office of Special
Investigations (OSI) Special Agent (SA) Adrianna Vorderbruggen
contacted Det. Gary Krause, a member of the Tacoma Police
Department, for assistance in obtaining a search warrant. SA
Vorderbruggen told Det. Krause that an unnamed source had
witnessed Appellant smoking marijuana three times during
December 2006 and smelled marijuana in Appellant’s off-base home
on various occasions during 2006. Additionally, she said that
Appellant’s roommate tested positive on a urinalysis test. The
two investigators talked for approximately fifteen to twenty
minutes and had no follow-up conversations. Det. Krause then
verified the address and description of the house provided by
the source.
That same day, Det. Krause prepared an affidavit, including
this information, and presented it to a civilian magistrate to
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obtain a search warrant for drugs at Appellant’s off-base
residence. Det. Krause did not contact OSI to review the
content of the affidavit. Among other things, the affidavit
Det. Krause originally submitted to the magistrate stated:
The last time the source smelled marijuana was on
the 28th of December. The source smelled
marijuana on other occasions spread out over the
course of 2006. In accordance with Air Force
guidelines, OSI obtained a urinalysis from one of
the two named subjects which came back positive
for the presence of marijuana.
When the magistrate asked for corroboration for the unnamed
source’s statements, Det. Krause told him that the urinalysis
test was done as a result of the source’s information. He did
not verify this information with OSI. Det. Krause amended the
affidavit by hand to read: “Based upon the source’s information
+ In [sic] accordance with Air Force guidelines, OSI obtained a
urinalysis from one of the two named subjects which came back
positive for the presence of marijuana.”
These statements were factually incorrect, but believed to
be true by the detective at the time. The urinalysis test was
actually conducted pursuant to a unit sweep in August 2006.
Additionally, Det. Krause told the magistrate that it was
unusual that the source was reporting through OSI and that he
had no direct contact with the source. Det. Krause received and
executed the warrant, finding approximately three grams of
marijuana when searching Appellant’s home. Appellant moved to
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suppress the evidence, and, after losing the motion, he entered
a conditional guilty plea for possession.
The military judge subsequently found that the magistrate:
issued a warrant for the Accused’s residence based, in
part, on erroneous information. . . . [A] crucial
factor in his decision to issue the warrant was that a
urinalysis had been conducted with positive results
for the marijuana metabolite based on information from
this source. In addition, he was also told that the
OSI was requesting the warrant based, in part, on the
positive urinalysis result. It appears that this
false information was important to the [sic] Judge
Chushcoff in determining whether probable cause
existed. If not provided this incorrect information,
a finding may possibly have been that probable cause
did not exist.
However, the military judge concluded there was no evidence that
the detective “made these statements with reckless disregard for
the truth.” Finally, the military judge concluded that “Despite
the erroneous information mistakenly provided to the Judge,
there still remained a substantial basis for determining the
existence of probable cause.”
ANALYSIS
The Fourth Amendment requires that “no Warrants shall
issue, but upon probable cause.” U.S. Const. amend. IV. A
military judge’s decision to find probable cause existed to
support a search authorization as well as to admit or exclude
evidence is reviewed for an abuse of discretion. United States
v. Bethea, 61 M.J. 184, 187 (C.A.A.F. 2005); United States v.
Carter, 54 M.J. 414, 418 (C.A.A.F. 2001). “An abuse of
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discretion occurs if the military judge’s findings of fact are
clearly erroneous or if the decision is influenced by an
erroneous view of the law.” United States v. Quintanilla, 63
M.J. 29, 35 (C.A.A.F. 2006). “In reviewing a ruling on a motion
to suppress, we consider the evidence in the light most
favorable to the prevailing party.” United States v. Reister,
44 M.J. 409, 413 (C.A.A.F. 1996) (quotation marks omitted).
The military judge would not have abused her discretion
when denying the motion to suppress if the magistrate had a
“substantial basis” for determining that probable cause existed.
United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007) (citing
Illinois v. Gates, 462 U.S. 213, 236 (1983)). Probable cause
exists when there is sufficient information to provide the
authorizing official “a reasonable belief that the person,
property, or evidence sought is located in the place or on the
person to be searched.” Military Rule of Evidence (M.R.E.)
315(f)(2).
Appellant argues that absent the false information
regarding the timing and predicate of the roommate’s urinalysis,
the affidavit depended on the uncorroborated information of an
unnamed source. Appellant acknowledges that Gates replaced the
“veracity-knowledge” test from Aguilar v. Texas, 378 U.S. 108,
113-14 (1964), and Spinelli v. United States, 393 U.S. 410, 415-
16 (1969), with a more contextual “totality of the
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circumstances” approach. See Gates, 462 U.S. at 230. However,
Appellant correctly argues that Gates did not replace the need
for the Government to show some concrete indicia of reliability
before reliance is placed on a confidential informant. Absent
such indicia, the affidavit was “facially deficient” and the
conclusion regarding the source’s “reliability” conclusory.
The Government acknowledges that certain information
provided by Det. Krause was erroneous. However, the Government
argues that the confidential informant’s information was
otherwise corroborated by the roommate’s urinalysis results, if
not the date of and predicate for the test, and was otherwise
relevant to a probable cause finding. In addition, while
acknowledging that the Gates totality of the circumstances test
still requires indicia that an informant is reliable, the
Government finds that reliability in the granular and specific
nature of the informant’s input.
I. Treatment of the Erroneous Information
As a threshold question, and in light of the erroneous
information contained within the affidavit, this Court must
determine what information should be reviewed to determine
whether or not a substantial basis for finding probable cause
was present. In reviewing probable cause determinations, this
Court examines the information known to the magistrate at the
time of his decision, and the manner in which the facts became
7
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known. Bethea, 61 M.J. at 187; Leedy, 65 M.J. at 214. However,
in Gallo, this Court stated that “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.” United States v. Gallo, 55 M.J. 418, 421
(C.A.A.F. 2001); see also United States v. Mason, 59 M.J. 416,
422 (C.A.A.F. 2004).
Gallo ultimately derives from Franks v. Delaware, in which
the U.S. Supreme Court stated:
[W]here the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the
defendant’s request. In the event that at that
hearing the allegation of perjury or reckless
disregard is established by the defendant by a
preponderance of the evidence, and, with the
affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to
establish probable cause, the search warrant must be
voided and the fruits of the search excluded to the
same extent as if probable cause was lacking on the
face of the affidavit.
438 U.S. 154, 155-56 (1978). Franks focused on whether the
veracity of a warrant affidavit can be challenged by the
defendant to quash the admission of seized evidence at trial.
Id. at 155. In that context, the Supreme Court expressed the
view that the best way to balance the need to protect the
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probable cause requirement with society’s interest in
discovering the truth was to delimit the circumstances where
affidavits might be challenged. Id. at 165-71. One explicit
limitation was to allow review only in cases where there is
evidence of deliberate misstatements or reckless disregard for
the truth. “Allegations of negligence or innocent mistake are
insufficient.” Id. at 171. This rule and procedure was then
adopted in M.R.E. 311(g)(2), which states that at a hearing
reviewing whether probable cause existed for a search warrant
“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.” M.R.E. 311(g)(2).
The operative language of Franks varies in nuance from that
of Gallo. While Gallo addresses “misstatements” or “improperly
obtained information,” Franks focuses on “misstatements” made
knowingly or “reckless disregard for the truth.” However, the
underlying corrective principle is the same. “[I]f, when
material that is the subject of the alleged falsity or reckless
disregard is set to one side, there remains sufficient content
in the warrant affidavit to support a finding of probable cause,
no hearing is required.” Franks, 438 U.S. at 171-72. Moreover,
to the extent there is a distinction between Gallo and Franks in
what triggers the corrective principle, it is not essential
9
United States v. Cowgill, No. 09-0376/AF
here, for in the judgment of a majority of the Court, the
affidavit was provided with reckless disregard for the truth.
Det. Krause’s affidavit states, “Based upon the source’s
information [and i]n accordance with Air Force guidelines, OSI
obtained a urinalysis from one of the two named subjects which
came back positive for the presence of marijuana.” Both parties
agree that the reason for and the implicit time period of the
urinalysis test was incorrectly stated to the magistrate. The
military judge found that the “erroneous information [was]
mistakenly provided to the Judge.” She further found that the
magistrate judge relied on these statements.
The military judge found no evidence that the factual
errors were intentional. In fairness to the participants, it is
also clear from the record that the detective and the OSI
investigators could not recall the precise detail of their oral
communication. Nonetheless, in our view it was reckless in the
context of this case for the local detective not to validate the
affidavit and its contents with the OSI before submitting it to
the magistrate.
Some courts have stated that a reckless disregard for the
truth occurs when the affiant “had obvious reasons to doubt the
veracity of the allegations.” E.g., United States v. Jones, 208
F.3d 603, 607 (7th Cir. 2000) (quotation marks and citations
omitted). Other courts have adopted similar definitions as well
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United States v. Cowgill, No. 09-0376/AF
as additional definitions to address different contexts. Thus,
the United States Court of Appeals for the Third Circuit has
adopted the language of the United States Court of Appeals for
the Eighth Circuit in concluding that “omissions are made with
reckless disregard if an officer withholds a fact in his ken
that ‘any reasonable person would have known that this was the
kind of thing the judge would wish to know.’” Wilson v. Russo,
212 F.3d 781, 788 (3d Cir. 2000) (quoting United States v.
Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993)). Generally,
regardless of specific definitions, reckless disregard requires
something more than negligence. However, the distinction
between mere negligence and reckless disregard can be opaque in
this area of the law, requiring judges to discern the difference
between that which is flagrant versus that which merely breaches
a duty of care. The task is made no easier by the equally
opaque manner in which courts have distinguished between
intentional misstatements and a reckless disregard for the truth
based on “serious doubts as to the truth.” Jones, 208 F.3d at
607.
The circumstances of this case do not fit neatly into an
existing case law rubric involving either omissions or
assertions. The detective did not withhold knowledge about the
roommate’s urinalysis nor is there reason to believe he had
serious doubts about what he said about the urinalysis. Indeed,
11
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the record reflects that he acted in good faith. The concern in
this case is procedural. The question is whether the detective
was merely negligent or reckless in not doing more to confirm
the affidavit facts in this specific context.
To start, as noted by the detective himself, it was unusual
and out of the ordinary for an affiant to rely on a confidential
informant without first having direct contact with that source.
Nor did the detective have information regarding the nature of
the source, including his military status. In addition, the
detective told the magistrate that this informant was different
than the ones he normally brought to court who typically would
have been vetted using reliability buys. Thus on guard, the
detective would have been better served to review the affidavit
with the OSI before submitting it to the magistrate. However,
when the magistrate specifically asked the detective about
corroboration and the “hot urinalysis” it was imperative that
the detective get the facts right. This was not only “the kind
of thing the judge would wish to know”; he specifically wanted
to know. At this point, if not before, it was reckless not to
validate the facts with the OSI. Moreover, the record reveals
no urgency or exigent circumstance that precluded the detective
from doing so. Det. Krause’s lack of information about both the
informant and the urinalysis test created obvious reasons for
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him to doubt the assertions he made in court, and demonstrate a
reckless disregard for the warrant process.
Our determination that the information in question was
provided recklessly is a fact-specific holding. In our view,
the unusual circumstances surrounding the informant, the
magistrate’s specific question about the predicate for the
roommate’s urinalysis, and the obvious importance of the answer
to the magistrate’s probable cause determination, moved this
case from the negligent to the reckless. Having concluded that
the information in question was provided in reckless disregard,
consistent with Gallo and Franks we will sever that information
from the affidavit and determine whether sufficient information
remained in order for the magistrate to find probable cause.
II. Was There Nonetheless a Substantial Basis to
Find Probable Cause?
Probable cause relies on a “common-sense decision whether,
given all the circumstances . . . there is a fair probability
that contraband” will be found. Leedy, 65 M.J. at 213 (quote
marks omitted) (quoting Gates, 462 U.S. at 236).
The threshold for probable cause is subject to
evolving case-law adjustments, but at its core it
requires factual demonstration or reason to believe
that a crime has or will be committed. As the term
implies, probable cause deals with probabilities. It
is not a “technical” standard, but rather is based on
“factual and practical considerations of everyday life
on which reasonable and prudent men, not legal
technicians, act.” Probable cause requires more than
bare suspicion, but something less than a
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preponderance of the evidence. . . . The duty of the
reviewing court is simply to make a practical, common-
sense decision whether, given all the circumstances
set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime
will be found in a particular place.
Leedy, 65 M.J. at 213 (final ellipsis in original) (citations
omitted).
On the one hand, Appellant argues that absent the erroneous
information no probable cause existed because there was
insufficient corroboration for “an unknown, unproven informant .
. . to justify searching someone’s home” and upholding the
warrant will ratify inappropriate police reliance on such an
informant. United States v. Wilhelm, 80 F.3d 116, 120 (4th Cir.
1996). The magistrate in this case asked Det. Krause about the
reliability of the informant and whether there was any
corroborating evidence, demonstrating that the credibility of
the informant was central to the probable cause determination by
the magistrate. Appellant argues that if the informant was not
reliable, then most of the information in the affidavit should
be given no weight. Additionally, the Appellant contends that
because some of the urinalysis information is false, one cannot
rely on it at all in this case. As a result, Appellant contends
all that is left is a bare-bones affidavit.
On the other hand, Det. Krause’s affidavit included:
statements about his conversation with SA Vorderbruggen,
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including his understanding that the source was “reliable”; a
description of the statements from the unnamed source; and
verification of Appellant’s address along with confirmation of
the description of Appellant’s home as provided by the source.2
The source described witnessing Appellant along with his
roommate smoke marijuana, the drug paraphernalia they used to do
so, and the persistent smell of drugs in Appellant’s home.
Additionally, Appellant’s roommate failed a drug test during the
time that the source asserted the drug use was occurring.
Based on this information we agree with the military
judge’s statement that the affidavit “could undoubtedly have
been more detailed, with additional information about the
reliable source and information unquestionably should have been
confirmed between the OSI and Det Kraus [sic].” At the same
time, based on the totality of the circumstances, we conclude
that the military judge did not abuse her discretion in
admitting the evidence seized from Appellant’s home.3 While the
drug test was not recent, it was not stale for the purposes of
corroborating the informant’s statement with respect to the
generalized use of marijuana over a six-month period. In
2
The affidavit also included reference to eight noise complaints
filed against Appellant’s address.
3
In light of this conclusion we need not and do not address the
applicability of the good faith exception, as discussed in Judge
Erdmann’s separate opinion.
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addition, the detective’s verification of Appellant’s address
confirmed the source’s description of the home and the source’s
incriminating statements were specific as to time and granular
as to deed.
CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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STUCKY, Judge (concurring in the result):
I concur with Judge Baker that, even without considering
the contested statements, the magistrate had a substantial basis
upon which to find probable cause to search Appellant’s off-base
residence. However, I disagree with the holding that the
information was provided “recklessly.” United States v.
Cowgill, __ M.J. __ (13) (C.A.A.F. 2010).
When an accused alleges that a government agent provided
false information to an official authorizing a search, “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.” Military Rule of Evidence
(M.R.E.) 311(g); see Franks v. Delaware, 438 U.S. 154, 156
(1978). “Allegations of negligence or innocent mistake are
insufficient.” Franks, 438 U.S. at 171.
The military judge found that “there was no evidence
presented that Det. Krause deliberately lied to Judge Chushcoff
when he told him about the urinalysis results or the reasons for
the search. Nor was evidence presented that Det. Krause made
these statements with reckless disregard for the truth.”
Whether an accused established by a preponderance of the
evidence that the affidavit was deliberately false or made with
reckless disregard for the truth are questions of fact for the
military judge to resolve; thus, a military judge’s findings on
United States v. Cowgill, No. 09-0376/AF
this issue “are binding unless they are clearly erroneous.”
United States v. Allen, 53 M.J. 402, 408 (C.A.A.F. 2000).
To prove reckless disregard for the truth under Franks, the
accused “must prove that the affiant ‘in fact entertained
serious doubts as to the truth’ of the allegations.” United
States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002) (quoting
United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984))
(agreeing with United States v. Davis, 617 F.2d 677, 694 (D.C.
Cir. 1979) (holding that the First Amendment definition should
be applied by analogy in the Franks setting)). There is no
evidence that Det. Krause “entertained serious doubts as to the
truth” of the matters he submitted in his affidavit. Instead,
the evidence supports a conclusion that Det. Krause made an
innocent mistake in advising the magistrate that the source’s
information had resulted in the Air Force Office of Special
Investigations obtaining a urinalysis from one of the subjects
of the investigation that subsequently tested positive for
marijuana.
Under these circumstances, I would hold that the military
judge was not clearly erroneous in finding there was no evidence
that Det. Krause’s affidavit was made with reckless disregard
for the truth.
I concur in the result.
2
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ERDMANN, Judge, with whom EFFRON, Chief Judge, joins
(concurring in part and dissenting in part):
I agree with the majority’s analysis and conclusion that
the false information in the affidavit was provided with
reckless disregard for the truth. I also agree with the
majority’s treatment of the difference in language between
Franks v. Delaware, 438 U.S. 154 (1978), and United States v.
Gallo, 55 M.J. 418 (C.A.A.F. 2001), as to the proper appellate
analysis of a search warrant affidavit that has been found to
contain false information. I respectfully disagree, however,
with the majority’s conclusion that after removing the false
information from the affidavit there remained a substantial
basis to find probable cause. I would further find that the
“good faith” exception does not apply under these circumstances
and would reverse the United States Air Force Court of Criminal
Appeals and set aside Specification 2 of the Charge.
In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme
Court returned to a “totality-of-the-circumstances” analysis for
reviewing probable cause determinations:
The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before
him, including the “veracity” and “basis of knowledge”
of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a
crime will be found in a particular place. And the
duty of a reviewing court is simply to ensure that the
United States v. Cowgill, No. 09-0376/AF
magistrate had a “substantial basis for . . .
[concluding]” that probable cause existed.
Gates, 462 U.S. at 238-39 (alterations in original)
(quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
Where an affidavit has been found to contain false
information, once that information has been removed, this court:
broadly bifurcates the review of a magistrate’s
determination into two “closely intertwined” analyses:
first, we examine the facts known to the magistrate at
the time of his decision, and second, we analyze the
manner in which the facts became known to the
magistrate. Thus, while the initial inquiry rightly
centers on the evidence as set out in the four corners
of the requesting affidavit, this evidence “may [then
be] usefully illuminat[ed]” by factors such as the
“veracity,” “reliability” and “basis of knowledge” of
the individual presenting the evidence.
United States v. Leedy, 65 M.J. 208, 214 (C.A.A.F. 2007)
(alterations in original) (citations omitted).
The United States Court of Appeals for the Tenth Circuit
recently provided a useful discussion of these concepts in
United States v. Quezada-Enriquez, 567 F.3d 1228 (10th Cir.
2009), cert. denied 130 S. Ct. 427 (2009):
Veracity concerns whether there is reason to believe
that the informant is telling the truth, see [Gates]
at 227; United States v. Tuter, 240 F.3d 1292, 1297
(10th Cir. 2001), including whether he faces criminal
charges or whether his statement is against his own
penal interest. “[W]hen there is sufficient
independent corroboration of an informant’s
information, there is no need to establish the
veracity of the informant.” United States v. Artez,
389 F.3d 1106, 1111 (10th Cir. 2004). Reliability
determinations entail inquiry into whether the
informant has provided accurate information in the
2
United States v. Cowgill, No. 09-0376/AF
past. United States v. Corral, 970 F.2d 719, 727
(10th Cir. 1992); see also Gates, 462 U.S. at 243-44.
As for basis of knowledge, a firsthand observation is
entitled to greater weight than secondhand
information. Tuter, 240 F.3d 1297-98. Thus, when the
informant’s basis of knowledge is not described on the
face of the affidavit, we look to whether the
information “contained a range of details relating not
just to easily obtained facts and conditions existing
at the time of the tip, but to future actions of third
parties ordinarily not easily predicted.” Gates, 462
U.S. at 245. We look for “the kind of highly specific
or personal details from which one could reasonably
infer that the [informant] had firsthand knowledge
about the claimed criminal activity.” Tuter, 240 F.3d
at 1298; see also Florida v. J.L., 529 U.S. 266, 271
(2000) (explaining that the provision of accurate
“predictive information” can indicate either veracity
or basis of knowledge).
567 F.3d at 1233 (second and third alterations in
original).
The facts included in the affidavit that were attributed to
the informant included: an allegation of use of marijuana in
the residence by the tenants; the use involved less than forty
grams of marijuana and also involved a glass “bong”; the
informant had smelled marijuana in the residence over the course
of 2006, the last time being in December 2006; and the informant
had seen marijuana in sandwich baggies on three occasions in
December, 2006. The corroborating facts supplied by Det. Krause
in the affidavit, independent of the informant, included: Det.
Krause drove by the residence and the description matched the
one provided by the OSI agent; Det. Krause determined that there
had been eight loud party complaints for the residence in 2006;
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and the OSI had obtained a urinalysis from one of the tenants
which came back positive for marijuana.
In regard to the “veracity,” “reliability,” and the “basis
of knowledge” of the informant, the only reference in the
affidavit to any of these factors was Det. Krause’s secondhand
allegation that the OSI agent informed him that the informant
was “deemed reliable.” There is nothing in the affidavit which
supports or explains that bare conclusory statement. There is
no information specifically provided in the affidavit that would
establish that this informant was telling the truth. There is
nothing about the informant’s background or whether he or she
had provided accurate information in the past. Without more
information, a mere conclusory statement that the informant is
“deemed reliable” is an inadequate basis to determine probable
cause.1 See Gates, 462 U.S. at 239.
This inadequacy in the affidavit as to the veracity,
reliability, and basis for the informant’s knowledge was
obviously recognized by the magistrate, a Washington state
Superior Court judge, when he asked Det. Krause what information
from the informant had been corroborated. In response to this
inquiry, Det. Krause erroneously informed the judge that the
positive urinalysis was conducted based on information from the
1
The record reflects that the OSI agent had much of this
information, but it ultimately did not find its way into the
affidavit.
4
United States v. Cowgill, No. 09-0376/AF
informant. As a result of that conversation the magistrate
asked Det. Krause to add language to the affidavit that the
urinalysis had been conducted based on the informant’s
information.2
While the informant did allege the presence of and use of
marijuana in the residence, the specific allegations of the use
of a glass “bong” and sandwich baggies do not add significant
support to the totality-of-the-circumstances analysis. It is
common knowledge that marijuana is kept and distributed in
sandwich baggies and that “bongs” are used to ingest marijuana
smoke. These are details that relate to easily obtained facts
and conditions rather than individualized allegations such as
the specific date, time, circumstances, and the names of those
present when marijuana was used or possessed.
It is true that where an affidavit does not reflect
evidence of the veracity of an informant, that deficiency can be
offset where there is sufficient independent corroborating
evidence. Quezada-Enriquez, 567 F.3d at 1233. The additional
facts alleged by Det. Krause, however, provided little
2
Det. Krause added and initialed the phrase to the affidavit
“Based upon the source’s information +” as a preface to the
allegation that “OSI obtained a urinalysis from one of the two
named subjects that came back positive for the presence of
marijuana.” In reviewing probable cause determinations, courts
must look at the information made known to the authorizing
official at the time of his decision. United States v. Carter,
54 M.J. 414, 418 (C.A.A.F. 2001) (citing United States v.
Cunningham, 11 M.J. 242, 243 (C.M.A. 1981)).
5
United States v. Cowgill, No. 09-0376/AF
corroboration. While he did corroborate the address that was
provided to him by the OSI agent by driving by the residence,
that again is easily obtained information. The information
concerning loud party complaints adds little to a totality-of-
the-circumstances analysis for a search warrant for possession
of marijuana. The positive urinalysis does constitute evidence
that someone then living at the residence had used marijuana
sometime in the past, but its inclusion in the affidavit is
diminished by a lack of explanation as to the circumstances of
the test and its proximity in time to the search warrant
application.
The Government argues that the information from the
informant was corroborated by the results of the urinalysis and
that the specific detailed information provided by the informant
and corroborated by Det. Krause overcomes the lack of
information concerning the reliability of the informant. While
I recognize that a determination of probable cause by a neutral
and detached magistrate is entitled to substantial deference,3 in
this case we are determining whether the affidavit, after
excluding the false information, would have provided a
substantial basis for determining probable cause. In this case
it does not.
3
Carter, 54 M.J. at 419.
6
United States v. Cowgill, No. 09-0376/AF
The limited factual information presented to the
magistrate, combined with the almost total lack of any
information as to the informant’s veracity, reliability, and
basis of knowledge, is not overcome by the limited corroboration
provided by Det. Krause. This record simply does not support a
“substantial basis” for determining that probable cause existed.
If a search warrant affidavit lacks probable cause, the
evidence obtained as the result of the warrant may still be
admissible under the “good faith” exception established in
United States v. Leon, 468 U.S. 897 (1984), and recognized in
Military Rule of Evidence 311(b)(3). The “good faith” exception
applies “where the official executing the warrant relied on the
magistrate’s probable cause determination and the technical
sufficiency of the warrant, and that reliance was ‘objectively
reasonable.’” Carter, 54 M.J. at 419 (citing Leon, 468 U.S. at
922).
In Leon the Supreme Court also recognized four
circumstances where the “good faith” exception would not apply.4
The first of those circumstances involve a “false or reckless
affidavit.” There is no division of opinion in this case that
the information added to the affidavit in response to the
4
The four circumstances identified in Leon where the “good
faith” exception does not apply are where there is: (1) a false
or reckless affidavit; (2) a lack of judicial review; (3) a
facially deficient affidavit; and (4) a facially deficient
warrant. Carter, 54 M.J. at 419.
7
United States v. Cowgill, No. 09-0376/AF
magistrate’s request for corroboration of the informant’s
allegations was provided with reckless disregard for the truth.
In United States v. Leon, the Supreme Court explained
that the Fourth Amendment itself does not expressly
require excluding evidence that was obtained in
violation of its command. Rather, the exclusionary
rule operates as a “judicially created remedy designed
to safeguard Fourth Amendment rights generally through
its deterrent effect, rather than a personal
constitutional right of the party aggrieved.” 468
U.S. at 906 (citation and quotation marks omitted).
Use of the exclusionary rule is to prevent further
police misconduct in other cases, not to compensate
the individual whose Fourth Amendment rights were
violated or to punish the errors of judges and
magistrates. 468 U.S. 906, 916.
Leedy, 65 M.J. at 219-20 (C.A.A.F. 2007) (Erdmann, J.,
concurring).
Having found that the information added to the affidavit
was done so in reckless disregard for the truth, the “good
faith” exception does not apply. I would therefore reverse the
decision of the United States Air Force Court of Criminal
Appeals and set aside the finding of guilty to Specification 2
of the Charge. In light of the sentence received by Cowgill and
the fact that he would remain convicted of use of cocaine and
possession of marijuana, I would affirm the sentence.
8