United States v. Garcia ( 2020 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Kaleb S. GARCIA, Senior Airman
United States Air Force, Appellant
No. 20-0262
Crim. App. No. 2019-07
Argued September 30, 2020—Decided December 9, 2020
Military Judges: Bradley A. Morris and Elizabeth M. Hernandez
For Appellant: Captain David L. Bosner (argued); Captain
M. Dedra Campbell and Mark C. Bruegger, Esq.
For Appellee: Captain Kelsey Shust (argued); Colonel Shaun
S. Speranza, Major Jessica L. Delaney, and Mary Ellen
Payne, Esq.
Judge OHLSON delivered the opinion of the Court, in
which Judges SPARKS and MAGGS, and Senior Judge
EFFRON, joined. Chief Judge STUCKY filed a separate
opinion concurring in the result.
_______________
Judge OHLSON delivered the opinion of the Court.
It is repugnant to the purpose and principles of the Fourth
Amendment for an agent of the government to “knowingly
and intentionally, or with reckless disregard for the truth” in-
clude in an affidavit false information that is material to a
search authorization request, Franks v. Delaware, 438 U.S.
154, 155 (1978), or to make material omissions “that are de-
signed to mislead, or that are made in reckless disregard of
whether they would mislead, the magistrate,” United States
v. Mason, 59 M.J. 416, 422 (C.A.A.F. 2004) (emphasis omit-
ted) (internal quotation marks omitted) (quoting United
States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). This
proposition should be self-evident. And yet, the Government’s
troubling conduct in the instant case compels this Court to
underscore this essential point from the outset of this opinion.
United States v. Garcia, No. 20-0262/AF
Opinion of the Court
In this Article 62, Uniform Code of Military Justice
(UCMJ),1 case, the Government has charged Appellant at a
general court-martial with one specification of sexual assault
of Airman First Class (A1C) JL, in violation of Article 120,
UCMJ, 10 U.S.C. § 920 (2018).2 As explained in detail below,
the trial judge3 on two separate occasions suppressed DNA
evidence linking Appellant to this sexual assault. The Gov-
ernment appealed the trial judge’s second suppression ruling
to the United States Air Force Court of Criminal Appeals
(AFCCA) pursuant to the provisions of Article 62, UCMJ. The
lower court reversed the trial judge’s ruling, holding that she
had abused her discretion in suppressing the evidence. We
granted review on the following issue: “Whether the Air Force
Court of Criminal Appeals erred in finding that the [trial]
judge abused her discretion in suppressing evidence obtained
as a result of a search and seizure of Appellant’s DNA.”
United States v. Garcia, 80 M.J. 278 (C.A.A.F. 2020) (order
granting review). Despite the Government’s improper con-
duct in this case, we hold that the trial judge did abuse her
discretion in suppressing the evidence from the second search
and we therefore affirm the decision of the AFCCA.
I. Facts
A. First Suppression Ruling
The relevant charge in this case arose after Appellant,
A1C JL, and a third airman engaged in a night of drinking.
The trio returned to Appellant’s off-base apartment in the
early morning hours of February 2, 2019. The following day,
A1C JL reported to the Air Force Office of Special Investiga-
tions (AFOSI) at Minot Air Force Base, North Dakota, that
she had been sexually assaulted by Appellant.4 Two AFOSI
1 10 U.S.C. § 862 (2018).
2 The convening authority also referred two additional specifi-
cations of sexual assault of a second airman, A1C ML, for miscon-
duct occurring in August 2018.
3 Two military judges were involved in this case. For ease of
reference, the one who presided at the court-martial will be referred
to as “the trial judge,” and the one who authorized the second search
will be referred to as “the military judge.”
4 The third airman spoke with AFOSI on two occasions about
the night in question. In a February 4, 2019, interview, he admitted
2
United States v. Garcia, No. 20-0262/AF
Opinion of the Court
agents, Special Agent RB and Special Agent RD, interviewed
A1C JL. Special Agent RD then accompanied A1C JL to a lo-
cal hospital for a sexual assault forensic examination. In the
course of her statements to the AFOSI agents and to the sex-
ual assault nurse examiner, A1C JL explained that she was
highly intoxicated during the assault, that she could not re-
member certain aspects of the incident, and that her memory
was cloudy about certain other points. Of particular signifi-
cance to the issue before us, A1C JL gave varying accounts
about whether she was clothed when she woke up in bed with
Appellant and whether she had any recollection or knowledge
of Appellant vaginally penetrating her.
Special Agent RB orally sought a search authorization
from the commander of the 91st Security Forces Group to ob-
tain DNA evidence from Appellant, and the commander ap-
proved the request. The search being sought was intrusive
and included such actions as penile swabbing and pubic comb-
ing. Prior to submitting a written search authorization re-
quest to the commander, Special Agent RB realized that in-
formation she previously had given orally to the commander
was inaccurate. Specifically, Special Agent RB had stated un-
equivocally, but incorrectly, that A1C JL recalled that when
she woke up in bed with Appellant, “she wasn’t wearing any
clothes and neither was he” and that Appellant “was vagi-
nally penetrating her.”
Special Agent RB consulted with the Office of the Staff
Judge Advocate about this false information in the oral search
authorization request. Remarkably, Captain KS told Special
Agent RB to keep the incorrect information in the written re-
quest because “the affidavit should mirror the facts previ-
ously provided” to the commander and did not otherwise in-
struct her to correct this misinformation. Accordingly, Special
Agent RB provided an inaccurate affidavit, which stated that
the victim’s “next memory was waking up without any clothes
on in [Appellant’s] spare bedroom,” and Appellant was “on top
to engaging in sexual intercourse with A1C JL and consented to a
search and seizure of his DNA. In a February 7 follow-up interview,
the third airman further indicated that Appellant wanted to engage
in a threesome with A1C JL and that Appellant had been alone with
A1C JL for approximately ten to twenty minutes.
3
United States v. Garcia, No. 20-0262/AF
Opinion of the Court
of [the victim] penetrating her vaginally.” Despite this false
information in the affidavit, Special Agent RB took an oath
attesting to its veracity. Moreover, neither Special Agent RB
nor Captain KS informed the commander through other
means that the search authorization request contained infor-
mation they knew to be false.
Prior to trial, the defense filed a motion to suppress the
DNA results revealing that A1C JL’s vaginal swabs contained
Appellant’s DNA, and that Appellant’s penile swabs
contained the DNA of A1C JL. The trial judge granted the
motion, essentially concluding that the Government’s
intentional and reckless action of including false information
in the search authorization request warranted suppression of
the evidence. She found that “SA [RB’s] conduct in providing
materially false statements to the search authority, coupled
with her unwillingness to seek out the correct information or
correct it when [it was] brought to her attention, convinces
this court that SA [RB] acted knowingly and intentionally and
with reckless disregard for the truth.”5 Notably, the
Government did not appeal the trial judge’s decision
regarding this matter.
B. Second Suppression Ruling
After the trial judge suppressed the DNA results from the
February 2019 search of Appellant’s person, Special Agent
RD, at the request of the Office of the Staff Judge Advocate,
sought a new search authorization in October 2019 from a
military judge previously unconnected to this case. In his af-
fidavit accompanying the search request, Special Agent RD
included a summarized transcript of a portion of A1C JL’s
first AFOSI interview, as well as a summary of A1C JL’s sec-
5 The trial judge explained her findings with respect to the ver-
bal search request as follows: “Given the short duration of the ini-
tial interview and the same day recitation to the search authority,
close in time to [A1C] JL’s interview, the verbal statements … were
given with reckless disregard for the truth.” As for the written affi-
davit, the trial judge found: “SA [RB] was notified her [oral] facts
were incorrect, yet there is no evidence she clarified the information
given to the search authority. To the contrary, SA [RB] submitted
a written affidavit … which included the false information” and
“signed the affidavit anyway, attesting to its veracity.”
4
United States v. Garcia, No. 20-0262/AF
Opinion of the Court
ond AFOSI interview, both of which were conducted in Feb-
ruary 2019. Special Agent RD underlined passages in the
transcript where A1C JL stated, “I’m pretty sure [Appellant]
had sex with me” and “I was gonna go get a rape kit,” and
where she asked, “[W]hat happens if I get pregnant [from Ap-
pellant]?” Importantly, Special Agent RD also underlined a
leading question posed by Special Agent RB, to wit, “[W]as it
just vaginal intercourse …?” As noted by the trial judge, each
of these underlined passages tended to reinforce the Govern-
ment’s contention that Appellant had penetrated A1C JL.
However, Special Agent RD also included in the search re-
quest other comments from A1C JL such as “I blacked out
completely,” and “[when] I woke up [in bed] with him pretty
much on top of me[,] I didn’t even know if I had clothes on or
anything.” And, in the context of a question about whether
A1C JL recalled Appellant penetrating her or just that he was
on top of her, the transcript showed that A1C JL responded,
“Just that he was on top of me and like I didn’t have any
clothes on. Like from, like I can’t remember really anything.
I just remember waking up to him.” Further, the summary of
the second interview reflected that A1C JL said she was “un-
sure” whether she was naked from the waist down when Ap-
pellant was on top of her in bed, and she was “unsure” if Ap-
pellant vaginally penetrated her. These portions of the
affidavit tended to give a broader and more balanced view of
what A1C JL remembered about the night in question.
The Government also provided to the military judge who
authorized the search an affidavit from the lab employee who
had conducted the prior DNA testing on the vaginal swabs
from A1C JL and on the evidence collected from Appellant.
The lab employee stated in the affidavit that he had identified
two male contributors on the vaginal swabs. He said one con-
tributor was the third airman who had admitted to having
sexual intercourse with A1C JL on the night in question, but
the other contributor was an “unknown male.” This declara-
tion was not accurate. At the time the lab employee completed
this affidavit, he knew that the second profile matched Appel-
lant’s DNA profile. That is because this same lab employee
had previously analyzed Appellant’s DNA in the course of the
initial February 2019 search authorization, the results of
which had previously been suppressed by the trial judge.
5
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Opinion of the Court
Based on the information before him, the military judge
authorized AFOSI to obtain buccal swabs from Appellant in
order to analyze his DNA. However, the trial judge later
granted a motion by Appellant to suppress this October 2019
search and seizure of Appellant’s DNA. She did so on two
grounds.
First, the trial judge determined that SA RD deliberately
or recklessly omitted information,6 ruling that the Govern-
ment had deprived the military judge who authorized the
search “the full picture of evidence and information” in the
case and, “like previously,” had tried to “pick and choose what
facts to provide.” The trial judge focused on four particular
points: (1) SA RD failed to include in the affidavit that A1C
JL had told the sexual assault nurse examiner that “her cloth-
ing was on when she woke up” in bed with Appellant, and that
A1C JL did “not recall any details of the events that occurred”;
(2) SA RD failed to include in the affidavit that a third airman
had told AFOSI that Appellant and A1C JL were clothed
when they emerged from the bedroom; (3) SA RD failed to in-
clude in the affidavit that this third airman had admitted in
two separate interviews, and not just in one interview, that
he had sex with A1C JL on the night in question; and (4) SA
RD failed to include in the affidavit that A1C JL was living
with an ex-boyfriend, which could explain the presence of
DNA from a second male on A1C JL’s vaginal swabs. The trial
judge ruled that if this information had been included in the
affidavit, it “would have extinguished probable cause.”
6 The trial judge also referred to deficiencies in the affidavit of
the lab employee, including that the affidavit contained a “false
statement.” Specifically, she noted that the affidavit failed to state
that the lab employee had previously tested Appellant’s DNA, and
failed to state that the lab employee already knew at the time of the
October 2019 search authorization request that the DNA from the
“unknown male” actually matched Appellant’s DNA profile. How-
ever, neither of these points seemed to play a substantial role in the
trial judge’s suppression analysis, and Appellant focuses his argu-
ments in this Court on the omissions in SA RD’s affidavit. In addi-
tion, there is no material difference in Appellant’s case between
saying an “unknown male” (which was false) and using another
term such as “another male” (which would have been true). We
therefore do not address the deficiencies in the lab employee’s affi-
davit here.
6
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Opinion of the Court
Second, the trial judge concluded that the October 2019
DNA evidence was derivative of the tainted evidence from the
first search because the Government’s failure to use “a new,
untainted investigator and … a new, untainted [lab] analyst”
meant that there was no “clean, untainted examination of the
case,” which “colored how the Government … presented the
case to the” military judge who authorized the search. The
trial judge rejected the Government’s reliance on the inde-
pendent source doctrine because A1C JL’s AFOSI interviews,
the third airman’s AFOSI interview, and the untainted lab
analyses involving A1C JL and the third airman did not pro-
vide an independent basis for probable cause. Instead, she
found that “the Government’s decision to seek a new search
authorization was prompted by information gathered during
the prior illegal search and only a result of having that search
suppressed.” The trial judge then granted the defense motion
to suppress evidence obtained from the October 2019 search
and seizure of Appellant’s DNA evidence.
C. Appellate Proceedings
The Government filed an Article 62, UCMJ, appeal with
the AFCCA challenging the trial judge’s second suppression
ruling. The AFCCA held that the trial judge abused her dis-
cretion when she found that “inclusion of the omitted infor-
mation in a corrected affidavit would have extinguished prob-
able cause” and when she “applied an erroneously heightened
legal standard for probable cause.” United States v. Garcia,
Misc. Dkt. No. 2019-07, 2020 CCA LEXIS 107, at *51, 2020
WL 1860100, at *18 (A.F. Ct. Crim. App. Apr. 10, 2020). The
AFCCA further held the trial judge abused her discretion
when she determined that the October 2019 search and sei-
zure of DNA evidence was derivative of the first search and
that this DNA was not obtained from an independent source.
Id. at *57–64, 2020 WL 1860100, at *21–22. We granted Ap-
pellant’s petition for review under Article 67(a)(3), UCMJ,
10 U.S.C. § 867(a)(3) (2018). Garcia, 80 M.J. at 278.
II. Standard of Review
In Article 62, UCMJ, cases, we pierce the lower court’s de-
cision and review the trial judge’s suppression ruling directly
for an abuse of discretion. United States v. Pugh, 77 M.J. 1, 3
(C.A.A.F. 2017). Moreover, this Court examines the evidence
7
United States v. Garcia, No. 20-0262/AF
Opinion of the Court
in a light most favorable to the party which prevailed at trial,
which is Appellant in this case. United States v. Lewis,
78 M.J. 447, 452 (C.A.A.F. 2019). When conducting our dis-
cretionary review of the trial judge’s suppression ruling, this
Court “review[s] factfinding under the clearly-erroneous
standard and conclusions of law under the de novo standard.”
United States v. Gurczynski, 76 M.J. 381, 385 (C.A.A.F. 2017)
(citation omitted) (internal quotation marks omitted). “A find-
ing of fact is clearly erroneous when there is no evidence to
support the finding, or when, although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.” United States v. Criswell, 78 M.J. 136, 141
(C.A.A.F. 2018) (citations omitted) (internal quotation marks
omitted). An abuse of discretion occurs when a trial judge
makes clearly erroneous factual findings or when the trial
judge misapprehends the law. United States v. Eugene,
78 M.J. 132, 134 (C.A.A.F. 2018).
III. Analysis
Appellant defends the trial judge’s suppression ruling on
two grounds: (1) the trial judge properly determined that Spe-
cial Agent RD’s deliberate or reckless omissions from his
search authorization affidavit extinguished probable cause;
and (2) the trial judge properly concluded that the independ-
ent source doctrine did not apply. We address these argu-
ments in turn.
A. Omissions from the Search Authorization
1. Applicable Law
An accused may challenge a search authority’s probable
cause determination on the basis that law enforcement know-
ingly or recklessly misstated information in, or omitted mate-
rial information from, an affidavit in support of the search
authorization. Mason, 59 M.J. at 422 (“Neither [the Military
Rules of Evidence (M.R.E.)] … nor Franks expressly extends
to omissions. Logically, however, the same rationale extends
to material omissions.”). This Court applies the M.R.E.
311(d)(4)(B) framework to evaluate these claims of inten-
tional or reckless misstatements or omissions. See United
States v. Figueroa, 35 M.J. 54, 56–57 (C.M.A. 1992). Military
Rule of Evidence 311(d)(4)(B) and “ ‘Franks protect[] against
8
United States v. Garcia, No. 20-0262/AF
Opinion of the Court
omissions that are designed to mislead, or that are made in
reckless disregard of whether they would mislead, the [search
authority].’ ” Mason, 59 M.J. at 422 (quoting Colkley,
899 F.2d at 301). In this context, our evaluation of the trial
judge’s second suppression ruling encompasses a two-step
process using different standards of review.
As a first step, we examine the trial judge’s findings that
the Government omitted relevant information from the Octo-
ber 2019 affidavit, and that the Government did so recklessly
or intentionally. See United States v. Crawford, 943 F.3d 297,
309 (6th Cir. 2019). These are questions of fact. Id.; see also
Mason, 59 M.J. at 422. Assuming that the trial judge’s finding
of fact regarding these issues is not clearly erroneous, as a
second step, we conduct a de novo review to determine
whether those reckless or intentional omissions were mate-
rial because their inclusion in the affidavit would have extin-
guished probable cause.7 See Crawford, 943 F.3d at 309; see
also Ornelas v. United States, 517 U.S. 690, 697–98 (1996);
Mason, 59 M.J. at 422 (holding that “even if [omitted] infor-
mation had been included in the affidavit, none of it would
have prevented a finding of probable cause”).
2. Discussion
With respect to the second suppression ruling, we assume
without deciding that the trial judge did not clearly err in
finding that “the Government intentionally and recklessly
omitted information from the search [authorization] affida-
vit.” Thus, the central question before us is whether the in-
clusion of this omitted information would have extinguished
probable cause in the search authorization request.
In making this determination with respect to the second
suppression ruling, we first examine the affidavit and accom-
panying material as it was presented to the military judge
who authorized the search to determine whether probable
cause initially existed. It is a fundamental fact that “[p]roba-
ble cause ‘is not a high bar.’ ” District of Columbia v. Wesby,
138 S. Ct. 577, 586 (2018) (quoting Kaley, v. United States,
7 Information is “material” if it is “[o]f such a nature that
knowledge of the item would affect a person’s decision-making.”
Black’s Law Dictionary 1170 (11th ed. 2019).
9
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Opinion of the Court
571 U.S. 320, 338 (2014)). This Court is simply required “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.” Illinois v. Gates, 462 U.S. 213,
238 (1983); M.R.E. 315(f)(2).
Here, “the circumstances set forth in the affidavit” in-
cluded the following: Appellant knew that A1C JL was drink-
ing heavily on the night in question; Appellant signaled to an-
other airman that he was interested in having a “threesome”
with A1C JL that evening; while the other airman was in a
different room, Appellant went into the spare bedroom where
A1C JL was sleeping; despite the fact that it was his quarters
and he presumably had his own bed in a different room, Ap-
pellant got into bed with A1C JL; when A1C JL awakened,
she discovered that Appellant was not just lying beside her
but rather was “on top of” her; Appellant’s later explanation
for this scenario was that he simply was looking for some
shorts in this spare bedroom; Appellant woke up A1C JL be-
tween 3:00 and 4:00 in the morning and was adamant that
she needed to take a shower, and he was standing in the bath-
room with a naked A1C JL insisting that she do so; and Ap-
pellant got “really mad” at A1C JL’s refusal to take a shower8
and his later explanation for his reaction was merely that
A1C JL had spilled beer on herself and he wanted her to wash
it off. And finally, the lab employee’s affidavit indicated that
the DNA from A1C JL’s vaginal swabs included male DNA
from two contributors, not just from the third airman in Ap-
pellant’s apartment.
Our commonsense assessment of the totality of these cir-
cumstances is that there was a fair probability that the DNA
evidence from the third person would match the DNA profile
of Appellant. Therefore, upon de novo review of the second
suppression ruling, we conclude that the facts contained
within the affidavits supported a probable cause determina-
tion to obtain buccal swabs from Appellant in October 2019.
We next consider whether the information that the Gov-
ernment deliberately or recklessly omitted from Special
8 A1C JL told AFOSI that she declined to take a shower because
she believed Appellant wanted her to wash away his DNA evidence.
10
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Opinion of the Court
Agent RD’s affidavit served to extinguish probable cause. As
noted above, the trial judge cited four key pieces of omitted
information that caused her to conclude that probable cause
was indeed vitiated.
First, the trial judge focused on the fact that SA RD failed
to include in the affidavit that A1C JL had told the sexual
assault nurse examiner that “her clothing was on when she
awoke” in the spare bedroom with Appellant, and that A1C
JL did “not recall details of the events that occurred.” How-
ever, we initially observe that the nurse’s notes were not an
extensive transcription of A1C JL’s comments. Further, other
parts of the affidavit made it abundantly clear that, due to
her high level of intoxication, A1C JL could not recall with
precision whether she was clothed or not. For example, at one
point she told the AFOSI special agents that she “didn’t even
know if [she] had clothes on” and at another point she said
she was “unsure” if her pants and underwear were on. Simi-
larly, the affidavit made it clear that A1C JL’s recollection of
the events in question was very hazy due to her intoxication.
Thus, this first omission cited by the trial judge does not serve
to extinguish the probable cause in this case.9
Second, the trial judge asserted that SA RD failed to in-
clude in the affidavit that a third airman had told AFOSI that
Appellant and A1C JL were clothed when they emerged from
the bedroom. However, the trial judge’s finding is clearly er-
roneous because SA RD’s affidavit actually does state that
this third airman informed AFOSI that Appellant and JL
“both came out to the living room clothed.” (Emphasis added.)
Further, A1C JL’s state of dress when she emerged from the
spare bedroom has little if anything to do with whether Ap-
pellant had sexually assaulted her previously inside the bed-
room. See Garcia, 2020 CCA LEXIS 107, at *55, 2020 WL
1860100, at *20.
9 We additionally note that government agents are not required
to provide all relevant information in seeking a search authoriza-
tion. See Colkley, 899 F.2d at 303 (holding that “a rule requiring
affiants to disclose all potentially exculpatory information has noth-
ing to recommend it”).
11
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Opinion of the Court
Third, the trial judge noted that SA RD failed to include
in the affidavit that the third airman at Appellant’s apart-
ment had admitted in two separate interviews, and not just
in one interview, that he had engaged in sexual intercourse
with A1C JL on the night in question. Of course, the airman’s
admission undercuts the probable cause value of A1C JL’s
subsequent observation that she felt as if someone had sex
with her. However, we conclude that the inclusion of a second
reference to the airman’s admission was merely cumulative
evidence and would not have extinguished probable cause.10
Fourth, and finally, the trial judge relied on the fact that
SA RD failed to include in the affidavit that A1C JL was living
with an ex-boyfriend, which could explain the presence of
DNA from a second male on A1C JL’s vaginal swabs.
However, we view the trial judge’s unsupported conjecture
that A1C JL had recently engaged in sex with this ex-
boyfriend as being too tenuous to extinguish the probable
cause determination. See Wesby, 138 S. Ct. at 588 (“[P]robable
cause does not require ... rul[ing] out ... innocent
explanation[s] of suspicious facts.”). The trial judge’s
speculation is further undermined because A1C JL spent the
night at Appellant’s apartment on the night of the alleged
sexual assault, and there is no evidence that the ex-boyfriend
was present at the apartment.
In light of these points, we conclude that the omitted
pieces of information cited by the trial judge, whether consid-
ered individually or cumulatively, did not extinguish probable
cause. Stated differently, our de novo review of all of the rel-
evant information in this case, to include the previously omit-
ted information, leads us to conclude that there was probable
cause to obtain Appellant’s buccal swabs in October 2019.
Therefore, the trial judge abused her discretion in finding
10 Appellant claims that this first interview was inconsistent
with the second because the airman stated Appellant was alone in
the bedroom with A1C JL only for one to two minutes and omitted
any reference to Appellant wanting to have a threesome. However,
the trial judge did not specifically examine these discrepancies in
her analysis or comment on them in her findings of fact. Appellant
does not claim that the trial judge clearly erred by omitting these
conflicting statements from her findings of fact.
12
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Opinion of the Court
that the omissions were material. “[U]nder Franks, an omis-
sion must do more than potentially affect the probable cause
determination: it must be ‘necessary to the finding of probable
cause.’ ” Colkley, 899 F.2d at 301 (quoting Franks, 438 U.S. at
156); see also M.R.E. 311(d)(4)(B).
We additionally conclude that the trial judge abused her
discretion because she misapprehended the law. She cited the
need for the Government to “provide a complete picture to the
search authority,” faulting Special Agent RD for trying “to
pick and choose what facts to provide the search authority,
thereby denying him the full picture of evidence and infor-
mation.” However, this is not the correct legal standard. An
affidavit is not required to include “every piece of information
gathered in the course of investigation.” United States v. Tate,
524 F.3d 449, 455 (4th Cir. 2008) (citation omitted) (internal
quotation marks omitted).
B. Independent Source Doctrine
Our analysis of the second suppression ruling is not fin-
ished, however. We next examine whether Appellant’s DNA
seized from the second search authorization was obtained
through an independent source separate from the first unlaw-
ful search authorization.
1. Applicable Law
Evidence derived from an unlawful search constitutes
“fruit of the poisonous tree” and is subject to exclusion. Utah
v. Strieff, 136 S. Ct. 2056, 2061 (2016) (citation omitted) (in-
ternal quotation marks omitted); Wong Sun v. United States,
371 U.S. 471, 488 (1963). However, “the independent source
doctrine allows trial courts to admit evidence obtained in an
unlawful search if officers independently acquired it from a
separate, independent source.” Strieff, 136 S. Ct. at 2061;
Murray v. United States, 487 U.S. 533, 537 (1988) (holding
that the independent source doctrine applies to “evidence in-
itially discovered during … an unlawful search, but later ob-
tained independently from activities untainted by the initial
illegality”). The purpose of the independent source doctrine is
to put “the police in the same, not a worse, position tha[n] they
would have been in if no police error or misconduct had oc-
curred” because if evidence with an independent source were
excluded, this “would put the police in a worse position than
13
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Opinion of the Court
they would have been in absent any error or violation.” Mur-
ray, 487 U.S. at 537 (internal quotation marks omitted) (quot-
ing Nix v. Williams, 467 U.S. 431, 443 (1984)).
2. Discussion
The trial judge ruled that Appellant’s DNA evidence ob-
tained from the October 2019 buccal swabs must be sup-
pressed because (1) it was derived from the lab employee’s
prior DNA analysis related to the February 2019 unlawful
search, and (2) there was no independent source to support
the second search authorization.
In regard to the first point, we note that Appellant’s brief
does not challenge the AFCCA’s conclusion that “[t]he [trial]
judge clearly erred in finding [that the lab employee’s] second
analysis of Appellant’s DNA was derived from the first and
thus tainted.” Garcia, 2020 CCA LEXIS 107, at *62, 2020 WL
1860100, at *21. Under the particular circumstances pre-
sented here, we therefore decline to reexamine this facet of
the trial judge’s suppression ruling and accept the AFCCA’s
conclusion that the second DNA analysis was not derived
from the first.
In regard to the second point about the independent
source doctrine, the trial judge found that “the Government’s
decision to seek a new search authorization was prompted by
the information gathered during the prior illegal search and
[was] only a result of having that search suppressed.” How-
ever, the trial judge clearly erred in making this factual find-
ing because she was laboring under a misapprehension of the
law. She seemingly took the position that the information
A1C JL and the third airman provided to AFOSI did not es-
tablish a crime by Appellant, and that it was the unlawful
DNA search and the lab analysis of this DNA that prompted
the second search authorization. However, it is essential to
note that not all evidence that is gathered either prior to or
after an unlawful search is necessarily “fruit of the poisonous
tree.” Wong Sun, 371 U.S. at 488. The only true poisonous
fruit is evidence that was gathered as a result of the unlawful
search. See id. Here, that poisonous fruit was the DNA lab
analysis derived from Appellant’s penile swab and initial buc-
cal swab.
14
United States v. Garcia, No. 20-0262/AF
Opinion of the Court
Further, the trial judge took an erroneously narrow view
of the evidence available to make the probable cause determi-
nation. Specifically, she misconstrued or ignored certain evi-
dence available to AFOSI that was unrelated to the unlawful
search and seizure of Appellant’s DNA. This included such
evidence as the lab analyses of the DNA evidence taken from
A1C JL’s vaginal swabs and from the third airman, A1C JL’s
pretextual text exchange with Appellant, and Appellant’s
AFOSI interview. As explained in Part III.A.2, this infor-
mation, along with A1C JL’s and the third airman’s AFOSI
interviews—all of which was unrelated to Special Agent RB’s
unlawful conduct—provided probable cause to obtain Appel-
lant’s DNA a second time. Accordingly, because the trial judge
relied on a misunderstanding of the law and the facts in
reaching her contrary conclusion in the second suppression
ruling, we hold that she abused her discretion by suppressing
the October 2019 DNA results.
IV. Conclusion
We not only understand the trial judge’s grave concern
about the Government’s actions in this case, we share it.
Here, a special agent with the AFOSI knew that she had
included false material information in an affidavit she was
submitting to a search authority, and yet she kept it in the
affidavit at the startling recommendation of a member of the
Judge Advocate General’s Corps. Further, the special agent
then attested to the veracity of this inaccurate affidavit.
Additionally, in a later search authorization affidavit
submitted to a military judge, a different special agent
underlined a question—not an answer—in an interview of the
complainant that went to the essence of the probable cause
determination even though this question had an insufficient
factual foundation. This special agent also appended an
affidavit from a government lab employee that stated that the
DNA recovered from the complainant was from an “unknown
male” when, in fact, the lab employee already knew the DNA
came from Appellant.
When seeking search authorizations, this Court expects
agents of the government to conduct themselves in a manner
consistent with the highest standards of professionalism and
integrity. Regrettably, certain individuals failed to meet this
standard in the instant case. Therefore, although we conclude
15
United States v. Garcia, No. 20-0262/AF
Opinion of the Court
that the trial judge should not have excluded the evidence in
her second suppression ruling, we do not condemn her well-
intentioned goal of seeking to hold the Government account-
able for its improper actions.11
V. Judgment
We affirm the decision of the United States Air Force
Court of Criminal Appeals. The record is remanded to the
Judge Advocate General of the Air Force for return to the trial
judge for further action consistent with this opinion.
11 In regard to the characterization of the Government’s conduct in
the separate opinion, we note the following facts. First, even if Cap-
tain KS’s intention was to have Special Agent RB simply memori-
alize the verbal information she conveyed to the search authority,
the method chosen—signing an affidavit in which Special Agent RB
attested to the veracity of false information—clearly was not the
proper approach. At a minimum, Captain KS should have in-
structed Special Agent RB to include in the affidavit a statement
explaining that the affidavit reflected the information she had pre-
viously conveyed orally to the search authority and then identify
the misinformation for the convening authority. This Court should
not be seen as countenancing in any way legal advice that encour-
ages law enforcement agents to knowingly swear to false state-
ments. Second, at the time that Special Agent RB attested to the
veracity of the false information, the seizure of the DNA evidence
had occurred but the search of that DNA evidence had not. Thus,
the matter presented here is not merely academic. If Special Agent
RB and Captain KS had taken the appropriate steps and been can-
did with the search authority, the course of the search in this case
may have been affected. Third, the trial judge in this case made the
following factual finding: “SA [RB’s] conduct in providing materi-
ally false statements to the search authority, coupled with her un-
willingness to seek out the correct information or correct it when [it
was] brought to her attention, convinces this court that SA [RB]
acted knowingly and intentionally and with reckless disregard for
the truth.” This factual finding by the trial judge is not clearly er-
roneous and should not be disturbed by this Court, particularly in
view of the Government’s decision not to appeal the trial judge’s
first suppression ruling and in view of the Government’s agreement
in its submission to our Court that “the agent acted recklessly.” Ap-
pellee’s Answer to Supplement to Petition for Grant of Review at 3
n.1, United States v. Garcia, No. 20-0262 (C.A.A.F. June 15, 2020).
16
United States v. Garcia, No. 20-0262/AF
Chief Judge STUCKY, concurring in the result.
I concur with the majority’s bottom line: the trial judge
abused her discretion in suppressing the DNA evidence seized
from Appellant. I further concur with the majority’s counsel
that there was a better way for Special Agent (SA) RB and
Captain KS to resolve the issues caused by the errors SA RB
made in her oral application for the search authorization. I
am unable, however, to join the majority’s equating their mis-
takes with the far more serious situation of providing false
information to the search authority knowingly and intention-
ally, or with reckless disregard for the truth.
Because of an expected snowstorm, SA RB sought a search
authorization telephonically, instead of with a written affida-
vit. She briefed Captain KS, a judge advocate, and the search
authority orally on why she thought probable cause existed.
After the commander verbally authorized the search, SA RB
took a completed Air Force (AF) Form 1176, Authority to
Search and Seize, to the commander’s house for his signature.
United States v. Garcia, Misc. Dkt. No. 2019-07, 2020 CCA
LEXIS 107, at *10, 2020 WL 1860100, at *4 (A.F. Ct. Crim.
App. Apr. 10, 2020). The document was necessary for the ex-
ecution of the sexual assault forensic exam (SAFE).
After the search, SA RB thought it appropriate to memo-
rialize in an affidavit what she actually told the commander
to avoid the problems of vague or faulty recollections at a later
trial. While reviewing her notes, SA RB realized that some of
the information she had provided the commander who au-
thorized the search was inaccurate. She asked Captain KS
what she should do. Captain KS correctly directed her to com-
plete her affidavit with the information that she actually pro-
vided the search authority, even though some of it was inac-
curate, because that was the information on which the
commander based his grant of the authorization. The com-
mander swore her to that affidavit and she signed it.
The correct practice, of course, would have been for SA RB
to include in her written affidavit that some of the infor-
mation she had previously provided was inaccurate. Further
Captain KS should have directed SA RB to immediately seek
another search authorization from an authority untainted by
United States v. Garcia, No. 20-0262/AF
Chief Judge STUCKY, concurring in the result
the incorrect information. But neither was attempting to mis-
lead the commander or obtain another search authorization.
They were trying to ensure the record accurately reflected the
“facts” as they had been presented to the commander when he
authorized the search. When called to testify on the motion to
suppress, both testified to their mistakes.
Under the circumstances, I think the majority’s character-
ization of what appear to be honest mistakes, is somewhat
overblown.
2