United States v. Bavender ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jared D. BAVENDER, Staff Sergeant
United States Air Force, Appellant
No. 20-0019
Crim. App. No. 39390
Argued October 27, 2020—Decided February 2, 2021
Military Judge: Brian D. Teter
For Appellant: Major Benjamin H. DeYoung (argued); Lieu-
tenant Colonel Todd J. Fanniff and Major Mark J.
Schwartz.
For Appellee: Major Dayle P. Percle (argued); Colonel Shaun
S. Speranza, Lieutenant Colonel Brian C. Mason, Captain
Peter F. Kellett, and Mary Ellen Payne, Esq. (on brief).
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge STUCKY, Judge SPARKS, and Senior
Judge EFFRON, joined. Judge MAGGS filed a separate
opinion concurring in part and concurring in the
judgment.
_______________
Judge OHLSON delivered the opinion of the Court.
This case involves the strange tale of Appellant, a self-pro-
claimed pornography addict and “hebephile.” 1 In August
2016, while assigned to Buckley Air Force Base, Colorado, Ap-
pellant attended a weekend motivational seminar where par-
ticipants were exhorted to live a life of “integrity.” In the
midst of this seminar, Appellant decided to confess to “illegal
acts,” and he informed his first sergeant in a telephone con-
versation that he had “not lived a life of integrity and … [had]
viewed child pornography.” Upon arriving at the seminar, Ap-
pellant’s first sergeant witnessed Appellant get on stage in
front of approximately 100 to 150 people and announce that
1 Appellant indicated that a “hebephile” is an adult who is pri-
marily sexually attracted to pubescent girls between the ages of
thirteen and seventeen.
United States v. Bavender, No. 20-0019/AF
Opinion of the Court
his first sergeant was there to help Appellant “take care of
some illegal acts and some of the illegal things” that Appel-
lant had done. The audience applauded.
Upon being voluntarily transported to the Air Force Office
of Special Investigations (AFOSI) by his first sergeant, Appel-
lant made a number of incriminating statements in the course
of a lengthy and amicable interview. For example, Appellant
told AFOSI agents that he had downloaded at least thirty im-
ages from the internet despite the fact that he “knew without
a shadow of a doubt that this was underage porn.” Appellant
also provided a written confession in which he admitted to
viewing “illegal” pornography, “illegal child porn,” and “child
pornography … on nudist websites.” At the end of this confes-
sion, Appellant declared: “For the first time in my life I am
truly free.”
In the course of this interview, Appellant provided express
consent for the AFOSI agents to seize and search all of his
personal electronic devices that could store and hold digital
media. Pursuant to Appellant’s consent, AFOSI seized a num-
ber of electronic devices from Appellant’s home. Before com-
puter experts could conduct a forensic search of Appellant’s
digital media, however, Appellant conferred with defense
counsel and revoked his consent.
An AFOSI agent then sought and obtained a search
authorization from a military magistrate. In the affidavit, the
agent stated that Appellant had admitted to viewing and
storing “child pornography.” After a subsequent analysis of
the contents of Appellant’s electronic devices, Appellant was
charged with and convicted of receiving and viewing child
pornography.
At trial and on appeal, Appellant has argued that “the
search was not supported by probable cause.” The gravamen
of Appellant’s argument is that “[t]he AFOSI agents latched
onto the [child pornography] label … [and improperly] ig-
nored the substantive descriptions [Appellant] gave” to
AFOSI indicating that all of the images he had viewed and
downloaded of naked underage children were merely lawful
photos taken from nudist websites. Thus, Appellant avers, if
the agents had included in the search authorization affidavit
2
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Opinion of the Court
these omitted portions of his interview, there would have been
no probable cause to seize and search his electronic devices. 2
We are wholly unpersuaded by Appellant’s line of reason-
ing. Accordingly, for the reasons outlined below, we hold that
the military judge did not err when he denied the defense mo-
tion to suppress the child pornography images located on Ap-
pellant’s digital media.
I. Background
A panel of officer members sitting as a general court-mar-
tial convicted Appellant, contrary to his pleas, of one specifi-
cation each of receiving and viewing child pornography on di-
vers occasions in violation of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2012). Appellant
was also convicted, pursuant to his pleas, of one specification
of violating a general regulation by searching for and viewing
pornography on a government computer on divers occasions
in violation of Article 92, UCMJ, 10 U.S.C. § 892 (2012). 3 Ap-
pellant’s adjudged and approved sentence consisted of a dis-
honorable discharge, confinement for three years, and a re-
duction to E-1. The United States Air Force Court of Criminal
Appeals (CCA) affirmed the findings and sentence. Bavender,
2019 CCA LEXIS 340, at *69, 2019 WL 4013381, at *24. We
granted review to determine whether the evidence of child
pornography found on Appellant’s electronic devices should
be suppressed. 4
2 The military judge denied the defense motion to suppress be-
cause the search authorization affidavit “standing alone, provided
sufficient evidence” to conclude that evidence of possessing and re-
ceiving child pornography would be found on the digital media. He
“made no findings of fact or conclusions of law in response to Appel-
lant’s argument that omissions in [AFOSI’s] affidavit were material
to the magistrate’s probable cause determination.” United States v.
Bavender, No. ACM 39390, 2019 CCA LEXIS 340, at *10, 2019 WL
4013381, at *4 (A.F. Ct. Crim. App. Aug. 23, 2019). The lower court
addressed this issue and concluded that AFOSI did not attempt to
mislead the military magistrate, that AFOSI did not deliberately or
recklessly omit information, and that the omissions did not extin-
guish probable cause. Id. at *10–15, 2019 WL 4013381, at *4–5.
3 Appellant also confessed to AFOSI about this misconduct.
4The granted issue asks “[w]hether the military judge erred
when he denied the defense motion to suppress evidence located on
3
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Opinion of the Court
II. Standard of Review
Our review of a military judge’s suppression ruling is for
an abuse of discretion. See United States v. Eugene, 78 M.J.
132, 134 (C.A.A.F. 2018). We review the military judge’s fact-
finding for clear error, and we conduct a de novo review of
legal conclusions. United States v. Leedy, 65 M.J. 208, 212–13
(C.A.A.F. 2007). The evidence is viewed in a light most favor-
able to the prevailing party at trial—the Government in this
case. Id. at 213.
III. Analysis
Appellant argues that the military judge abused his dis-
cretion in denying the defense’s suppression motion because
the AFOSI agents included in the affidavit intentionally or
recklessly false statements, and/or because the AFOSI agents
intentionally or recklessly omitted material information from
the affidavit. 5 Because the Government argues that the de-
fense waived both of these arguments, we must first address
this issue.
A. Waiver
The Government argues that “any argument that [the
AFOSI] affidavit was intentionally false or made with a reck-
less disregard for the truth was waived” under Military Rule
of Evidence (M.R.E.) 311(d)(2)(A). 6 Brief for Appellee at 10–
Appellant’s digital media.” United States v. Bavender, 79 M.J. 428(C.A.A.F. 2020) (order granting review).
5 The parties also dispute whether the affidavit on its face pro-
vided the military magistrate with a substantial basis for finding
probable cause. As discussed infra in Part III.B.2.b, we conclude
that the information presented in the AFOSI affidavit provided
probable cause to search Appellant’s electronic media. The military
judge therefore did not abuse his discretion when he determined
that the affidavit “standing alone, provided sufficient evidence” to
establish that child pornography would be found on Appellant’s dig-
ital media.
6 This rule provides:
[After the Government has disclosed evidence
seized from an accused,] the defense must make any
motion to suppress … prior to submission of a plea.
In the absence of such motion …, the defense may
4
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Opinion of the Court
11, United States v. Bavender, No. 20-0019 (C.A.A.F. Mar. 23,
2020). In evaluating this issue we note that “arguments for
suppression of evidence under M.R.E. 311 that are not made
at trial are waived.” United States v. Perkins, 78 M.J. 381, 390
(C.A.A.F. 2019). Further, the defense in each case “must
make a ‘particularized objection’ to the admission of evidence
[to give the government the opportunity to present relevant
evidence on the objection], otherwise the issue is waived and
may not be raised on appeal.” Id. (quoting United States v.
Stringer, 37 M.J. 120, 125 (C.M.A. 1993); United States v.
Robinson, 77 M.J. 303, 307 n.6 (C.A.A.F. 2018)).
In the instant case we agree with the Government and
conclude that Appellant waived the portion of his argument
that AFOSI knowingly or recklessly misrepresented Appel-
lant’s statements. At trial, the defense never argued that the
affidavit contained intentionally false information or that the
affidavit used the term “child pornography” in reckless disre-
gard for the truth. Nor was this theory inherent in the defense
argument. Thus, Appellant waived this argument by failing
to raise it at trial. 7
We reach a different conclusion, however, with respect to
whether the defense waived the argument that AFOSI inten-
tionally or recklessly omitted material facts from the search
authorization affidavit. Both in its written motion to suppress
and orally during its Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2012), arguments, the defense clearly argued that there were
material omissions in the affidavit. For example, trial defense
counsel took the position at the Article 39(a), UCMJ, session
that “so many of the substantive descriptions that [Appellant]
gave that didn’t support a finding of probable cause were not
put in that affidavit.” (Emphasis added.) This position was
not raise the issue at a later time except as permit-
ted by the military judge for good cause shown. Fail-
ure to so move … constitutes a waiver of the motion
….
M.R.E. 311(d)(2)(A).
7 We observe that even if Appellant had not waived this argu-
ment, he has not demonstrated that AFOSI intentionally or reck-
lessly misrepresented information by using the term “child pornog-
raphy” in its affidavit. See infra Part III.B.2.b.
5
United States v. Bavender, No. 20-0019/AF
Opinion of the Court
again reflected by this exchange between the military judge
and defense counsel:
MJ: Okay. Ultimately, it’s the defense’s position
that those facts should have been presented to the
magistrate because those essentially negate what
the government was presenting to the magistrate in
the first place?
DC: Yes, sir.
Under these circumstances, we conclude that Appellant has
preserved his argument that AFOSI made intentional or reck-
less omissions in the search affidavit presented to the mili-
tary magistrate. See United States v. Blackburn, 80 M.J. 205,
210 (C.A.A.F. 2020); Perkins, 78 M.J. at 390. Therefore, we
now turn our attention to an analysis of the granted issue in
this case.
B. Omissions
1. Parties’ Arguments and Record Evidence
Appellant challenges the AFOSI affidavit on three
grounds: (1) AFOSI omitted from the affidavit detailed de-
scriptions of the images which the Government deemed “child
pornography,” thereby precluding the military magistrate
from making an independent determination about the illicit
nature of those images; (2) AFOSI knowingly or recklessly
omitted from the affidavit passages contained in Appellant’s
AFOSI interview in which he described legal images of minors
in natural, nonsexual poses and settings; and (3) the affidavit
would have provided a different impression of Appellant’s ad-
missions and would not have supported probable cause had
AFOSI included these omissions.
Appellant’s position is supported by the omission from the
affidavit of the following statements he made during his
AFOSI interview:
(1) “The only thing I could ever find was just the nudist
websites with the pictures, and it was really just people
standing there, just posing for a picture as if they had clothes
on.” Appellant stated that the nudity in these pictures “meant
something different [to those pictured] than it meant to” him.
“It didn’t mean something sexual and pornographic to them.”
6
United States v. Bavender, No. 20-0019/AF
Opinion of the Court
(2) Appellant claimed that he simply searched Google im-
ages and went “to a website from there” rather than accessing
the dark web.
(3) Appellant explained that he mostly (“99.9 percent”)
went to “websites … for legal teenage pornography for 18- and
19-year-olds.”
(4) In regard to two images he saved to his computer, Ap-
pellant said that it was “possible that the two images … could
have been legal porn.” One image was of a “girl just standing
at the beach.” This image was one of his “favorites” and “was
more of a nudist shot.”
In response to Appellant’s arguments, the Government as-
serts that (1) AFOSI was not required to provide descriptions
of all of the images where other information in the affidavit
demonstrated that Appellant had viewed child pornography,
(2) AFOSI did not intentionally or recklessly omit infor-
mation, and (3) any omitted information did not invalidate
probable cause. The following information that AFOSI in-
cluded in the affidavit supports the Government’s position:
(1) Appellant “began viewing child pornography 8 approxi-
mately five years ago in 2011” and “he viewed child pornogra-
phy approximately four to five times per year.” Most recently,
“he went on a six-day ‘binge’ ” and viewed pornography on his
cell phone. Since 2011, Appellant estimated viewing “approx-
imately 100–150 images of child pornography and down-
loaded approximately 30–40 images.” He saved this material
on his cell phone, laptop, and thumb drive but deleted the ma-
terial “because he felt bad about it.”
(2) “He located pictures of underage girls on nudist web-
sites and masturbated to them and ejaculated.” To find these
images, Appellant “would use search terms such as ‘teenage
porn,’ ‘young teenage porn,’ and ‘young nude girls.’ ”
8 As noted above, Appellant waived the issue of whether
AFOSI’s use of the term “child pornography” in the affidavit consti-
tuted a knowing or reckless misrepresentation of Appellant’s state-
ments. Therefore, this characterization of the pornography viewed
by Appellant may appropriately be considered in the context of this
analysis.
7
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Opinion of the Court
(3) He “preferred viewing females aged 13–17, although
he had also viewed younger children.” Appellant knew that
the females were young based on their height or “little to no
breast development and no pubic hair.”
(4) He “was sexually interested in his 13-year-old female
neighbor”—he masturbated while watching her—but he de-
nied touching her inappropriately.
(5) Appellant “explicitly stated that he had viewed and
stored child pornography on several pieces of seized
electronics.”
The Government’s arguments are also supported by the
following information contained in Appellant’s lengthy inter-
view with, and written confession to, AFOSI:
(1) Appellant noted that he had been in treatment for a
pornography addiction for seven years, to include a two-
month stint for in-patient care.
(2) Appellant stated that while some of his behavior was
“not illegal, some of the pornography that I have viewed has
been illegal.” He also differentiated between his viewing of
pornography on government computers from his viewing of
“child porn.”
(3) Appellant used the phrase “ ‘Coolidge effect’ ” to de-
scribe his interest in images of younger and younger girls. He
explained that this term meant that an individual does not
“get the same high off of looking at the same images,” which
caused him to start “looking for younger and younger stuff.”
(4) Appellant described his evolution of looking at
“younger and younger and younger porn” that ultimately
resulted in him “finding one” image that led him to conclude,
“ ‘Holy shit. That’s not legal.’ ” Despite this assessment, he
“ended up clicking on [the link] and seeing what” the website
was and then “it basically was a matter of time before [he]
was actually going to that website to see what else was there.”
(5) Appellant claimed that he deleted “[a]ny illegal porn
[that he downloaded] … within a day or two.”
(6) Appellant admitted that during his most recent “binge”
two weeks before the interview, he was looking at “legal stuff,
illegal stuff” every day.
8
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Opinion of the Court
2. Discussion
For the reasons provided below, we conclude that the mil-
itary judge did not abuse his discretion in denying the defense
motion to suppress evidence.
a. Omission of Descriptions of Images
The AFOSI agent did not err when she omitted from the
affidavit Appellant’s detailed descriptions of the images he
had viewed. We first generally note that government agents
are not required to provide all relevant information in seeking
a search authorization. See United States v. Colkley, 899 F.2d
297, 303 (4th Cir. 1990). Further, we have previously stated:
“The Supreme Court has ‘never held that a magistrate must
personally view allegedly obscene [material] prior to issuing
a warrant authorizing [its] seizure.’ ” United States v. Monroe,
52 M.J. 326, 31–32 (C.A.A.F. 2000) (quoting New York v. P.J.
Video, Inc., 475 U.S. 868, 874 n.5 (1986)). Instead, it is ade-
quate if the affidavit “provide[s] sufficient information [for
the search authority] to make an independent determination
under the totality of the circumstances.” Id. at 332. Based on
the facts cited in the next section of this opinion, we conclude
that in the instant case the information contained in the affi-
davit was sufficient for the military magistrate to conclude
that the images at issue were indeed child pornography.
b. Probable Cause
The material presented to the military magistrate
established probable cause to search Appellant’s electronic
media for child pornography. First, the AFOSI affidavit
stated that Appellant had “provided a signed, sworn
statement and verbally relayed” that he “began viewing child
pornography approximately five years ago in 2011” and that
“he viewed child pornography approximately four to five
times per year,” including two weeks prior to the AFOSI
interview. Appellant admitted in his written confession to
viewing “child pornography,” and he admitted in his oral
confession to having a pornography habit that involved
“illegal forms” and to downloading “illegal porn.” Moreover,
Appellant told AFOSI that in one instance he found an image
that led him to conclude, “ ‘Holy shit. That’s not legal,’ ” and
in another instance he “knew without a shadow of a doubt
that this was underage porn.” Because of Appellant’s
9
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Opinion of the Court
significant familiarity with pornography, the AFOSI agent
who prepared the affidavit was entitled to give great weight
to Appellant’s characterizations of the type of pornography he
viewed as child pornography and supported the AFOSI
affidavit’s use of the phrase “child pornography.”
Further, there were other indications in the affidavit that
some of the images viewed by Appellant were child pornogra-
phy. Appellant conceded that he preferred to view images of
girls between the ages of thirteen and seventeen years of age,
and he admitted that in looking for those types of images on
his computer he used search terms like “young teenage porn.”
And, demonstrating that his search efforts were successful,
Appellant admitted that in some of the images he obtained
“he could tell the females [in the images] were young” based
on their size and their body development. Therefore, there
was an ample factual foundation for the military magistrate
to conclude that the images were indeed child pornography.
And importantly, the AFOSI affidavit linked this contra-
band to Appellant’s electronic devices. The affidavit stated
that Appellant admitted to downloading child pornography
onto his computer, thumb drive, and cell phone, and then de-
leting those images from his electronic devices within weeks
of his AFOSI interview. It also included the AFOSI agent’s
statement that in her experience individuals save and store
these images. Thus, the AFOSI affidavit contained “a suffi-
cient nexus … between the alleged crime and the specific
item[s] to be seized” and searched. United State v. Nieto,
76 M.J. 101, 106 (C.A.A.F. 2017). We therefore conclude that
using a “practical, common-sense” view of all of these circum-
stances, the affidavit provided “a fair probability” that child
pornography would be found on Appellant’s electronic de-
vices. Illinois v. Gates, 462 U.S. 213, 238 (1983).
c. Intentional or Reckless Omissions
We next conclude that even if we were to assume that
AFOSI intentionally or recklessly omitted information from
its affidavit, the omissions identified by Appellant do not de-
feat probable cause. 9 See United States v. Garcia, __ M.J. __,
9 The separate opinion describes this approach “as somewhat
illogical.” United States v. Bavender, __ M.J. __, __ (4) n.1 (C.A.A.F.
2021) (Maggs, J., concurring in part and in the judgment). However,
10
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Opinion of the Court
__ (11–12) (C.A.A.F. 2020). First, the AFOSI affidavit actually
covered some of the information that Appellant claims was
omitted. For instance, the affidavit stated that Appellant “lo-
cated pictures of underage girls on nudist websites.” (Empha-
sis added.)
Second, two of the images described by Appellant in his
interview but not included by AFOSI in the affidavit—an im-
age of a teenage girl looking at a young boy’s pubic region and
an image of a “girl on [a] bed … holding her chest and kind of
looking down on it”—buttress the probable cause determina-
tion. Appellant described the first image as “sexual,” and he
agreed the second was “pornographic.” Thus, Appellant’s own
statements support the likelihood of the contraband nature of
the images.
Third, although AFOSI omitted from the affidavit Appel-
lant’s claim that only hackers could find images of underage
sexual acts, the materiality of this omission is undermined by
the fact that Appellant also informed AFOSI that he could not
be “100 percent” sure whether videos from one of his “favorite”
websites depicted underage girls engaging in sexual acts.
Finally, “probable cause does not require” that the “inno-
cent explanation for suspicious facts” be ruled out; rather, the
relevant question is “ ‘the degree of suspicion that attaches to
particular types of noncriminal acts.’ ” District of Columbia v.
Wesby, 138 S. Ct. 577, 588 (2018) (citation omitted). The cir-
cumstances surrounding the purported “innocent” acts now
cited by Appellant still cast suspicion on the actual legality of
his conduct.
For these reasons, we conclude that the “hypothetical in-
clusion [of the purported intentional or reckless omissions in
the AFOSI affidavit] would [not] have prevented a finding of
probable cause.” Mason, 59 M.J. at 422.
in the recent case of Garcia, __ M.J. at __ (9), we also assumed with-
out deciding that the government intentionally and recklessly omit-
ted information from the search authorization affidavit and then
proceeded to the “central question” of whether this omitted infor-
mation would have extinguished probable cause. See also United
States v. Mason, 59 M.J. 416, 422–23 (C.A.A.F. 2004); United States
v. Figueroa, 35 M.J. 54, 57 (C.M.A. 1992). The author of the sepa-
rate opinion joined in this approach in Garcia.
11
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Opinion of the Court
IV. Judgment
We affirm the decision of the United States Air Force
Court of Criminal Appeals.
12
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Judge MAGGS, concurring in part and concurring in the
judgment.
I join all of the Court’s opinion except for the portion of
Part III.A in which the Court concludes that Appellant pre-
served his argument for suppression of evidence under Mili-
tary Rule of Evidence (M.R.E.) 311(d)(4)(B). In my view, Ap-
pellant waived this argument by not making a particularized
objection under this rule at trial. But I also agree with an al-
ternate holding that, even if Appellant had preserved the ar-
gument, the argument lacks merit. I therefore concur in the
Court’s judgment affirming the decision of the United States
Air Force Court of Criminal Appeals (AFCCA).
I. Waiver
M.R.E. 311(d)(2)(A) provides that an accused must move
to suppress evidence obtained pursuant to a search authori-
zation before the entry of pleas and that “[f]ailure to so move
or object constitutes a waiver of the motion or objection.” We
have interpreted this rule to require a “particularized objec-
tion” to admission of the evidence. United States v. Robinson,
77 M.J. 303, 307 n.6 (C.A.A.F. 2018) (internal quotation
marks omitted) (quoting United States v. Stringer, 37 M.J.
120, 125 (C.M.A. 1993)). Our precedents do not require the
trial defense counsel to use “talismanic words” in making a
particularized objection. United States v. Blackburn, 80 M.J.
205, 210 (C.A.A.F. 2020). But a combination of the trial de-
fense counsel’s “arguments in the written motion and at the
hearing” and the military judge’s understanding of those ar-
guments must show that the objection was sufficiently clear
that the Government was “not deprived of the opportunity to
respond.” Id. For example, in United States v. Perkins, this
Court recently held that the appellant had waived his argu-
ment that the magistrate “rubber-stamped” the application
for a search authorization because the appellant raised this
argument for the first time on appeal. 78 M.J. 381, 389─90
(C.A.A.F. 2019) (internal quotation marks omitted) (citation
omitted).
M.R.E. 311(d)(4) concerns defense challenges to evidence
seized pursuant to a search authorization on the ground that
the authorization was not based upon probable cause. When
considering such a challenge, the military judge generally
United States v. Bavender, No. 20-0019/AF
Judge MAGGS, concurring in part and in the judgment.
may consider only “the information actually presented to or
otherwise known by the authorizing officer.” M.R.E.
311(d)(4)(A). But M.R.E. 311(d)(4)(B) contains the following
exception for defenses based on false statements:
If the defense makes a substantial preliminary
showing that a government agent included a false
statement knowingly and intentionally or with reck-
less disregard for the truth in the information pre-
sented to the authorizing officer, and if the allegedly
false statement is necessary to the finding of proba-
ble cause, the defense, upon request, is entitled to a
hearing. At the hearing, 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. If the defense meets
its burden, the prosecution has the burden of prov-
ing by a preponderance of the evidence, with the
false information set aside, that the remaining infor-
mation presented to the authorizing officer is suffi-
cient to establish probable cause. If the prosecution
does not meet its burden, the objection or motion
must be granted unless the search is otherwise law-
ful under these rules.
In other words, if the accused makes a substantial prelimi-
nary showing that a false statement was knowingly or reck-
lessly included when applying for a search authorization and
that that false statement was necessary for a finding of prob-
able cause, then the search authorization is invalid if (1) the
accused then proves that the government agent did indeed
knowingly or recklessly include that false information, and
(2) the government fails to prove that the false information in
the false statement was immaterial to the probable cause de-
termination.
In this appeal, trial defense counsel argues that evidence
obtained during a search should be excluded under M.R.E.
311(d)(4)(B) because an Air Force Office of Special Investiga-
tions (AFOSI) agent recklessly or intentionally made false
statements or omissions in an affidavit when requesting a
search authorization. Appellant, however, did not preserve
this objection at trial by making a “particularized objection”
as this Court has explained this requirement in Blackburn,
Perkins, and other precedents. A review of the record reveals
2
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Judge MAGGS, concurring in part and in the judgment.
that Appellant’s trial defense counsel did not cite, quote, or
paraphrase M.R.E. 311(d)(4)(B) in either the written suppres-
sion motion that he filed in this case or during the oral argu-
ment on the motion. The trial defense counsel also did not ad-
dress the essential elements of M.R.E. 311(d)(4)(B), such as
whether the AFOSI agent made any “false statement.” This
goes far beyond merely failing to use talismanic words in rais-
ing an objection. The trial defense counsel simply did not raise
the particularized objection that Appellant now asks us to
consider on appeal.
Instead, in arguing that probable cause did not exist, the
trial defense counsel asserted that the AFOSI agent who
sought the search authority did not disclose certain state-
ments that Appellant made about his misconduct. These
statements, in Appellant’s view, showed that Appellant mis-
understood the definition of child pornography when he con-
fessed to possessing illegal photographs. In the trial defense
counsel’s words, “many of the substantive descriptions [of im-
ages] that Staff Sergeant Bavender gave that didn’t support
a finding of probable cause were not put in that affidavit.” But
as the AFCCA correctly observed, the trial defense counsel
“did not confront [the AFOSI agent] at the suppression hear-
ing with the claim that the omission of this information was
intentional or reckless, and no evidence was presented that it
was, other than what one might infer from the omissions
themselves.” United States v. Bavender, No. ACM 39390,
2019 CCA LEXIS 340, at *10, 2019 WL 4013381, at *4 (A.F.
Ct. Crim. App. Aug. 23, 2019).
The absence of a particularized objection under M.R.E.
311(d)(4)(B) at trial had consequences. If the trial defense
counsel had made the specific objection that Appellant now
makes before this Court, the military judge would have re-
quired both parties to present evidence about whether omis-
sion of the statements in question was intentional or reckless.
See M.R.E. 311(d)(4)(B) (entitling the defense to a hearing in
order to establish as a fact intentionality or recklessness). But
it is precisely because a particularized objection was not made
that the Government did not attempt to rebut an allegation
of recklessness with “relevant evidence that might be re-
viewed on appeal.” Perkins, 78 M.J. at 390. In addition, the
3
United States v. Bavender, No. 20-0019/AF
Judge MAGGS, concurring in part and in the judgment.
military judge would have considered the legal issue of
whether omission of Appellant’s statements in the affidavit
constituted a “false statement” within the meaning of M.R.E.
311(d)(4)(B), an issue the Government strenuously disputes
in its brief before this Court. And on these points, with the
benefit of an adversarial process, the military judge would
have made findings of fact and conclusions of law that this
Court could now review. But none of this happened.
Indeed, because the trial defense counsel did not make a
particularized objection under M.R.E. 311(d)(4)(B), the Court
is constrained in deciding whether the objection has merit.
The Court cannot decide the initial question of whether the
trial defense counsel established the predicate for the objec-
tion under the rule (i.e., a “substantial preliminary showing
that a government agent included a false statement know-
ingly and intentionally or with reckless disregard for the
truth”) because the military judge made no findings of fact or
conclusions of law relevant to this predicate. Instead, the
Court assumes without deciding that the AFOSI agent inten-
tionally or recklessly omitted information from the affidavit
so that the Court may consider whether the omitted infor-
mation, if it had been included, would have defeated probable
cause. I agree with the Court’s conclusion that the objection
lacks merit, but I believe that this Court should have termi-
nated the legal analysis by accepting the Government’s argu-
ment on the issue of waiver. 1
1 While this Court often decides cases by assuming without de-
ciding that one element of a rule is met but then concluding another
element is not, see, e.g., United States v. Garcia, __ M.J. __, __ (9)
(C.A.A.F. 2020), the specific assumption that the Court makes in
this case strikes me as somewhat illogical. I have difficulty seeing
how the Government could be “reckless” in omitting information in
its application for a search authorization if the omitted information
is not material to the question of whether probable cause exists. In
Garcia, unlike in this case, the military judge found as a fact that
the government agent was reckless. Id. This Court had to accept
this fact unless it was clearly erroneous. To avoid addressing a con-
tentious issue under this highly deferential standard of review, this
Court chose to assume without deciding that this finding of fact was
4
United States v. Bavender, No. 20-0019/AF
Judge MAGGS, concurring in part and in the judgment.
II. Conclusion
In sum, I would affirm the AFCCA on the ground that Ap-
pellant waived the argument for suppression that he now
raises. However, I also agree with the alternate holding that
the affidavit in question would have provided probable cause
even if it had included all of the information that Appellant
contends that it should have included.
not clearly erroneous and then ruled only on the issue of material-
ity. Id. In the present case, however, the Court goes considerably
further by assuming recklessness even though the military judge
made no finding of fact with respect to recklessness, even though
no evidence in the record would support such a finding, and even
though the AFCCA concluded that the government agent was not
reckless. United States v. Bavender, __ M.J. __, __ n.2 (3 n.2)
(C.A.A.F. 2021).
5