United States v. Hernandez ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant
v.
Robert J. HERNANDEZ, Airman Basic
United States Air Force, Appellee
No. 21-0137
Crim. App. No. 39606
Argued May 26, 2021—Decided August 12, 2021
Military Judge: John C. Degnan
For Appellant: Mary Ellen Payne, Esq. (argued); Colonel
Shaun S. Speranza, Lieutenant Colonel Matthew J. Neil,
and Major Jessica L. Delaney (on brief).
For Appellee: Major Jenna M. Arroyo (argued); Lieutenant
Colonel Todd Fanniff (on brief).
Judge HARDY delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS and Judge
MAGGS, and Senior Judge STUCKY, joined.
_______________
Judge HARDY delivered the opinion of the Court.
After a urinalysis test indicated the presence of cocaine in
Appellee’s system, a military judge sitting as a general court-
martial convicted Appellee of one specification of wrongful
use of a controlled substance in violation of Article 112a, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 912a
(2012). At trial, Appellee unsuccessfully argued that the re-
sults of the urinalysis test should be suppressed because the
search authorization used to obtain his urine was based on
material misstatements and omissions by the law enforce-
ment officers. On appeal, however, the United States Air
Force Court of Criminal Appeals (AFCCA) agreed with Appel-
lee, holding that the military judge erred by denying Appel-
lee’s motion to suppress, and set aside his findings and sen-
tence. United States v. Hernandez, No. ACM 39606, 2020 CCA
LEXIS 362, at *47, 2020 WL 5988195, at *14 (A.F. Ct. Crim.
United States v. Hernandez, No. 21-0137/AF
Opinion of the Court
App. Oct. 8, 2020) (unpublished). The Judge Advocate Gen-
eral (TJAG) of the Air Force certified two issues to this Court
for review:
I. Whether Appellee waived a challenge to the
search authorization for his urine on the basis of
knowing and intentional falsity or reckless disre-
gard for the truth.
II. Whether the military judge properly admitted ev-
idence of Appellee’s urinalysis.
We need not answer the first question because we hold
that the results of the urinalysis were properly admitted into
evidence under the good faith exception to the exclusionary
rule. We therefore reverse.
I. Background
The questions certified for our review arise from Appel-
lee’s second court-martial, which took place after he was re-
leased from fifteen months of confinement for cocaine-related
offenses. On March 9, 2018—after Appellee was processed out
of confinement, but before he was fully discharged from the
military—Appellee moved into an on-base dorm room at Van-
denberg Air Force Base.
On April 3, 2018, a team of four investigators from the
base security force conducted a drug sweep of the dorm after
a member of the security force who lived in the dorm smelled
marijuana and alerted his flight chief. Staff Sergeant (SSgt)
PO, one of the four investigators, brought Jager, his military
working dog (MWD), on the sweep. Jager was certified to de-
tect the presence and “residual odor” of five narcotics, includ-
ing marijuana and cocaine, but like all Air Force MWDs, Ja-
ger was not specifically trained to alert on or search people.1
It is undisputed that MWDs cannot detect the presence of
narcotics in a person’s body.
1 Air Force regulations expressly state that “[d]etector dogs will
never be used to search a person.” Dep’t of the Air Force, Instr. 131-
121, Military Working Dog Program para. 4.2.2.1 (May 2, 2018).
The parties dispute whether Jager’s actions with respect to Appel-
lee in this case qualified as a “search” under the regulations, an
issue we need not decide to resolve this case.
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United States v. Hernandez, No. 21-0137/AF
Opinion of the Court
The investigators began their sweep of the dorm by
searching the common areas on each of the three floors of the
building. Although SSgt PO testified that the smell of mari-
juana was noticeable as soon as the team entered the dorm,
Jager did not alert to the presence of drugs (by sitting) in the
common areas. After checking the common areas, the team
moved to the dorm’s hallways. Jager did not alert in the first-
floor hallway, but he did alert when the team reached the sec-
ond-floor hallway, where Appellee lived.
After Jager alerted to the presence of narcotics, a member
of the team called the base judge advocate, who advised that
there was no probable cause to search individual dorm rooms,
but that the team could get consent from residents to perform
such searches. The team then went door-to-door, searching
only those dorm rooms where the resident was present and
consented to the search. When Appellee exited his room,
SSgt AM requested consent to search the room, which Appel-
lee gave. When Jager walked past Appellee, the dog sat and
stared at him, which signaled to Jager’s handler that the dog
was likely alerting to the presence of narcotics on Appellee.
SSgt PO, Jager’s handler, had never seen Jager, or either of
the previous two dogs he had handled, alert on a person. SSgt
PO testified that he was “pretty sure” Jager was alerting to
Appellee, and it was likely either because Appellee had drugs
in his possession or drug residue on his person.
After obtaining Appellee’s consent, the investigators
searched Appellee’s person and backpack and found no drugs.
The investigators and Jager also performed a consensual
search of Appellee’s room but found no evidence of narcotics.
Upon exiting the room, Jager again sat and stared at Appellee
when the investigators passed by Appellee in the hallway.
The investigators finished their sweep of the dorm, during
which Jager also alerted to the presence of narcotics in the
hallway on the third floor.
After the dorm sweep, SSgt AM prepared an affidavit in
support of a request for a search authorization to obtain a
urine sample from Appellee. The affidavit included the follow-
ing relevant statements in support of finding probable cause
for a urinalysis test:
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Opinion of the Court
 SSgt AM (affiant) was a certified criminal investigator
with over seven years of experience as a security force
member.
 On April 3, 2018, the day of the sweep, a security force
member reported a strong scent of marijuana on the sec-
ond floor of the dorm.
 The MWD (Jager) did not alert to the presence of nar-
cotics in the common areas or in the first floor hallways
of the dorm.
 The MWD alerted to the presence of narcotics upon en-
trance to the second floor.
 Upon walking past Appellee, the MWD alerted to the
presence of narcotics by sitting and staring at Appellee.
 The security force team did not find evidence of narcotics
during a consensual search of Appellee’s person and
backpack.
 The MWD did not alert to the presence of narcotics dur-
ing a consensual search of Appellee’s room.
 The MWD again alerted to Appellee’s person after com-
pleting the search of Appellee’s room.
 The MWD alerted to the presence of narcotics upon en-
trance to the third floor, but not to any rooms or individ-
uals on the third floor.
 The dorm building manager reported that Appellee had
previously served time for drug related charges.
The affidavit also contained two statements that the military
judge found to be factually incorrect: (1) that the MWD
alerted to Appellee’s room on three separate occasions, and
(2) that the resident of a room on the third floor mentioned
that she first smelled marijuana in the building on March 10,
2018, one day after Appellee moved into the dorm.
On April 5, 2018, a military magistrate granted authori-
zation to seize and search Appellee’s urine. The magistrate
later testified before the military judge that he found suffi-
cient probable cause based on “[t]he fact that the dog sat on
[Appellee’s] floor, and sat when [Appellee] came out, and sat
each time it passed his room, and then on the [third] floor
someone actually . . . said that the smell of marijuana started
the day after he moved into the dorms.” The subsequent uri-
nalysis revealed cocaine in Appellee’s system.
4
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Opinion of the Court
On May 23, 2018, Appellee was charged with one specifi-
cation of wrongful use of cocaine in violation of Article 112a,
UCMJ. Appellee filed a timely motion to suppress the urinal-
ysis result due to lack of probable cause. In his motion to sup-
press and at the subsequent motions hearing, Appellee ar-
gued that the fact that Jager alerted on him “ultimately
means nothing” because MWDs are not trained to search per-
sonnel and, in fact, are prohibited by Air Force regulations
from doing so. Appellee also argued that there was no proba-
ble cause because, even if some significance was attributed to
Jager’s alerts on Appellee’s person, there was no logical con-
nection between the evidence collected by the investigators
and the authorization to search Appellee’s urine.
At the motions hearing, defense counsel further argued
that the good faith exception should not apply because
although Appellee was not alleging “improper conduct” by the
investigators, SSgt AM’s affidavit did not include a complete
or “fair picture” of what happened during the search and
included “some things . . . that are misleading.” In addition to
the errors noted above, defense counsel also pointed to the
absence of any discussion in the affidavit about Jager’s lack
of specific training to search individuals or the fact that it was
unusual for Jager to alert on a person. Defense counsel
finished her argument by stating, “the affidavit was
insufficient, I think that it just did not include all of the facts
and circumstances of what actually occurred. It included, you
know, I don’t want to say false, but misleading information
and just didn’t include the full picture.”
The military judge denied Appellee’s motion to suppress,
holding that five facts supported a finding of probable cause:
(1) the second-floor hallway smelled like marijuana on March
31, 2018, three days before the search; (2) Appellee moved
into the building on March 9, 2018; (3) a resident said the
third floor smelled like marijuana a day after Appellee moved
in; (4) the MWD alerted to the second-floor hallway; and (5)
the MWD alerted to Appellee twice. The military judge ex-
cised the misstatement that Jager alerted to Appellee’s door
three times, but still found that probable cause existed even
without the misstatement. The military judge also held that
the good faith exception would apply even if probable cause
were lacking because the magistrate had a substantial basis
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United States v. Hernandez, No. 21-0137/AF
Opinion of the Court
for finding probable cause and the authorization was relied
upon in good faith.
With the results of the urinalysis admitted into evidence,
the military judge convicted Appellee, contrary to his pleas,
of wrongful use of cocaine in violation of Article 112a, UCMJ,
and sentenced him to sixty days confinement and a dishonor-
able discharge. The convening authority approved the find-
ings and the sentence except the dishonorable discharge.
On appeal to the AFCCA, Appellee argued that the mili-
tary judge erred by denying Appellee’s motion to suppress the
results of the urinalysis. The AFCCA agreed, holding that the
magistrate lacked probable cause to believe that evidence of
use would be found in Appellee’s urine. Hernandez, 2020 CCA
LEXIS 362, at *32, 2020 WL 5988195, at *10. The AFCCA
also concluded that the good faith exception in Military Rule
of Evidence (M.R.E.) 311(c)(3) did not apply because the affi-
davit supporting the search authorization was drafted “with
a reckless disregard for the truth” and that “it was clear error
for the military judge to conclude otherwise.” Id. at *45, 2020
WL 5988195, at *13. Because Appellee’s conviction was based
solely on the results of the urinalysis, the AFCCA set aside
the charge and sentence. Id. at *47, 2020 WL 5988195, at *14.
Pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)
(2018), the TJAG certified two issues for review before this
Court. First, whether Appellee waived his challenge to the ap-
plication of the good faith exception on the basis that SSgt AM
submitted his affidavit with knowing and intentional falsity
or reckless disregard for the truth. And second, whether the
military judge properly admitted the results of Appellee’s uri-
nalysis into evidence. Because we hold that the results of Ap-
pellee’s urinalysis test were properly admitted into evidence
under the good faith exception to the exclusionary rule, we
decline to answer the first certified issue.2 The decision of the
AFCCA is reversed.
2 The Government argues that Appellee waived any objection to
the good faith exception in M.R.E. 311(c)(3) because trial defense
counsel: (1) did not mention the good faith exception in her written
suppression motion; (2) expressly disavowed any “improper
conduct” on the part of the investigators; and (3) declined to
characterize any of the investigator’s statements specifically as
6
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Opinion of the Court
II. Discussion
In the second certified issue, the Government asks us to
determine whether the military judge committed reversible
error when he denied Appellee’s motion to suppress the
results of his urinalysis test, thereby allowing those results to
be admitted into evidence. This Court reviews a military
judge’s denial of a motion to suppress evidence for an abuse
of discretion. United States v. Hoffmann, 75 M.J. 120, 124
(C.A.A.F. 2016). An abuse of discretion occurs when a military
judge’s decision is based on clearly erroneous findings of fact
or incorrect conclusions of law. United States v. Erikson, 76
M.J. 231, 234 (C.A.A.F. 2017). As we reiterated in United
States v. Blackburn, when this Court reviews a lower court’s
holding on the ruling of a trial court, we “typically have
pierced through [the] intermediate level and examined the
military judge’s ruling, then decided whether the Court of
Criminal Appeals was right or wrong.” 80 M.J. 205, 211
(C.A.A.F. 2020) (internal quotation marks omitted) (quoting
United States v. Shelton, 64 M.J. 32, 37 (C.A.A.F. 2006)). “In
reviewing a ruling on a motion to suppress, the evidence is
considered in the light most favorable to the party that
prevailed on the motion,” id., which in this case is the
Government.
The Government asserts two primary reasons why it be-
lieves that the AFCCA wrongly concluded that the military
judge erred when he denied Appellee’s motion to suppress.
First, the Government argues that the magistrate had a sub-
stantial basis for finding probable cause to search Appellee’s
urine. Second, even if probable cause was lacking, the Gov-
ernment argues that the military judge did not abuse his dis-
cretion when he concluded that the good faith exception
should apply. We consider each of these arguments in turn.
“false.” Although this Court typically addresses waiver before
reaching the merits of an issue, we do not believe that this order of
analysis is required, see, e.g., Loving v. Hart, 47 M.J. 438, 445
(C.A.A.F. 1998) (declining to decide whether the appellant waived
an objection to instructions and instead deciding that the
instructions were not in error), and decline to do so here.
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Opinion of the Court
A. Probable Cause
We review a military magistrate’s finding of probable
cause for the issuance of a warrant based on whether the
magistrate had a “substantial basis for concluding that prob-
able cause existed.” United States v. Rodgers, 67 M.J. 162,
164–65 (C.A.A.F. 2009). This review is conducted with “great
deference” to the magistrate’s finding of probable cause be-
cause of the “Fourth Amendment’s strong preference for
searches conducted pursuant to a warrant.” Illinois v. Gates,
462 U.S. 213, 236 (1983) (internal quotation marks omitted)
(citations omitted); see also Massachusetts v. Upton, 466 U.S.
727, 733 (1984) (“[A] deferential standard of review is appro-
priate to further the Fourth Amendment’s strong preference
for searches conducted pursuant to a warrant.”). If the law
enforcement affidavit on which the magistrate relied included
incorrect information, this Court has suggested that a review-
ing court should “sever [that information] from the affidavit
and examine the remainder to determine if probable cause
still exists.” United States v. Cowgill, 68 M.J. 388, 391
(C.A.A.F. 2010) (internal quotation marks omitted) (quoting
United States v. Gallo, 55 M.J. 418, 421 (C.A.A.F. 2001)).3 If
an important fact is omitted from the affidavit, for a court to
find that probable cause did not exist, that fact “must do more
than potentially affect the probable cause determination: it
must be ‘necessary to the finding of probable cause.’ ” United
States v. Garcia, 80 M.J. 379, 388 (C.A.A.F. 2020) (quoting
United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)).
The Fourth Amendment guarantees servicemembers’
right to “be secure in their persons, houses, papers, and
3 The Government argues that this approach is legal error be-
cause it goes beyond what the Supreme Court has required. In
Franks v. Delaware, 438 U.S. 154, 155–56 (1978), the Supreme
Court held that false information that was knowingly or recklessly
included in an affidavit should be excised by a reviewing court de-
termining whether probable cause existed, but did not address how
false information that was included due to negligence should be
treated. This Court noted this discrepancy in Cowgill, 68 M.J. at
392, but declined to resolve the issue because it was not necessary
to the outcome of that case. Similarly, because we are not deciding
whether probable cause existed to search Appellee’s urine, we need
not address the Government’s argument here.
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Opinion of the Court
effects.” U.S. Const. amend. IV. It protects against
unreasonable searches and seizures and requires warrants to
be issued only if based upon probable cause. Id. The Fourth
Amendment’s protections apply when a person has a
reasonable expectation of privacy, United States v. Jones, 565
U.S. 400, 406 (2012), and this Court has held that
servicemembers have such an expectation in the contents of
their urine—both as to the initial seizure of the urine and the
results of a urinalysis test. United States v. Dease, 71 M.J.
116, 120–21 (C.A.A.F. 2012). The President has incorporated
the protections of the Fourth Amendment directly into the
Military Rules of Evidence in M.R.E. 311 through M.R.E. 317.
Hoffmann, 75 M.J. at 123.
Consistent with the Fourth Amendment, M.R.E. 315(f)(1)
mandates that all search authorizations must be based on
probable cause. Probable cause exists if there is a “reasonable
belief that the property or evidence [to be searched] is . . . ev-
idence of a crime.” M.R.E. 316(c)(1). Probable cause for issu-
ing a search authorization exists when there is enough infor-
mation for the authorizing official to have “a reasonable belief
that the person . . . or evidence sought is located in the place
or on the person to be searched.” M.R.E. 315(f)(2).
In deciding whether there was a substantial basis for
probable cause, the magistrate looks to the totality of the cir-
cumstances. Gates, 462 U.S. at 238. “The task of the issuing
magistrate is simply to make a practical, common-sense deci-
sion whether, given all the circumstances set forth in the af-
fidavit before him . . . there is a fair probability that . . . evi-
dence of a crime will be found in a particular place.” Id. (citing
Jones v. United States, 362 U.S. 257, 271 (1960)). A finding of
probable cause “does not require officers to rule out a sus-
pect’s innocent explanations for suspicious facts.” D.C. v.
Wesby, 138 S. Ct. 577, 588 (2018). Instead, it “merely requires
that a person ‘of reasonable caution’ could believe that the
search may reveal some evidence of a crime; ‘it does not de-
mand any showing that such a belief be correct or more likely
true than false.’ ” United States v. Bethea, 61 M.J. 184, 187
(C.A.A.F. 2005) (quoting Texas v. Brown, 460 U.S. 730, 742
(1983)). When deciding whether probable cause exists “[t]he
authorizing official is free to draw ‘reasonable inferences’
from the material supplied by those applying for the authority
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Opinion of the Court
to search.” Hoffman, 75 M.J. at 125 (quoting Gates, 462 U.S.
at 240). But, as a threshold matter, for there to be probable
cause, “a sufficient nexus must be shown to exist between the
alleged crime and the specific item to be seized.” United States
v. Nieto, 76 M.J. 101, 106 (C.A.A.F. 2017); see Warden v. Hay-
den, 387 U.S. 294, 307 (1967) (requiring a “nexus . . . between
the item to be seized and criminal behavior”).
Here, even viewed in the light most favorable to the Gov-
ernment, it is unclear that probable cause existed for a search
of Appellee’s urine. The Government argues that the magis-
trate had a substantial basis to find probable cause for a
search of Appellee’s urine because: (1) Jager alerted to Appel-
lee’s person twice; (2) individuals smelled drugs in the build-
ing after Appellee moved in; (3) there was evidence that some-
one on the second floor had used drugs based on the “strong
odor of marijuana” recently noticed on the floor; and (4) the
magistrate was aware that Appellee had a prior drug charge.
Accordingly, the Government argues, probable cause existed
even though no drugs were found on Appellee’s person, in his
dorm room, or in his backpack. Even after severing the incor-
rect statements from the supporting affidavit and accounting
for the omitted facts, the Government argues that probable
cause still existed because under the totality of the circum-
stances, there was a “very good chance” a urinalysis test
would produce evidence of a crime. Essentially, the Govern-
ment argues that it was reasonable for the magistrate to be-
lieve that a urinalysis test might return evidence of drug use
given that Jager’s alerts suggested that Appellee had recently
been in physical contact with drugs, Appellee had recently
been convicted for using drugs, and Appellee resided in a
dorm where there was ongoing evidence of drug use including
a strong smell of marijuana on Appellee’s floor on the day of
the search. See United States v. Leedy, 65 M.J. 208, 213
(C.A.A.F. 2007) (noting that probable cause requires “more
than bare suspicion, but something less than a preponderance
of the evidence”).
However, as Appellee correctly notes, this Court has
rigorously enforced the “nexus” component of the probable
cause inquiry in previous cases. See, e.g., Nieto, 76 M.J. at
106–08 (finding no probable cause because the nexus
requirement was not satisfied). In Nieto, the Court noted
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Opinion of the Court
“that law enforcement officials must provide specific and
particular information in order for a magistrate to determine
that there is ‘a fair probability that contraband or evidence of
a crime will be found in a particular place.’ ” Id. at 108 n.5
(quoting United States v. Clayton, 68 M.J. 419, 424 (C.A.A.F.
2010)). In that case, the Court found no probable cause to
search the appellant’s laptop when the specific evidence
presented to the magistrate only suggested that the suspected
evidence of the alleged crime—electronic photographs
surreptitiously taken in the latrine—would be found on the
appellant’s cell phone. Id. at 107–08. Because the law
enforcement officials only provided a generalized profile
about what servicemembers normally do with electronic
photographs on their cell phones, rather than any specific and
particular information about how or why the photographs
might have been transferred from the cell phone to the seized
laptop, the Court concluded that there was no substantial
basis for the magistrate to believe that the photographs would
be present on the appellant’s laptop. Id. at 108.
The specific nexus between the evidence presented in this
case and the existence of narcotics in Appellee’s urine is not
obvious. We do not doubt that based on Jager’s alerts, the ev-
idence of ongoing drug use on Appellee’s floor of the dorm, and
Appellee’s prior conviction for a drug offense, the magistrate
had a substantial basis to believe that Appellee recently had
been in contact with narcotics.4 What is less clear, however,
is whether the magistrate had a substantial basis to believe
that Appellee had used those narcotics such that evidence of
that use would be present in his urine. Although that is one
possibility, it is also possible that Appellee was transporting,
manufacturing, handling, or distributing the narcotics with-
out using them. The Government argues that the fact that the
consensual searches of Appellee’s person, dorm room, and
personal effects revealed no evidence of any crime strongly
4 With respect to the last of these points, the Supreme Court
has held that although character evidence is not sufficient by itself
to establish probable cause, character evidence is also not “entirely
irrelevant.” Beck v. Ohio, 379 U.S. 89, 97 (1964); see also United
States v. Stuckey, 10 M.J. 347, 363 (C.M.A. 1981) (listing “reputa-
tion, prior convictions, or nonjudicial punishments” as “information
that is relevant to a determination of probable cause”).
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suggests that Appellee must have used the drugs, rather than
any of the other possibilities. Appellee argues that the lack of
any other evidence of the presence of drugs cuts the other
way, undermining any inferences that might be drawn from
Jager’s alerts to Appellee.
In the end, even accounting for the “great deference” owed
to the magistrate and the “Fourth Amendment’s strong pref-
erence for searches conducted pursuant to a warrant,” Gates,
462 U.S. at 236, the facts of this case present a close question
as to whether probable cause existed to search Appellee’s
urine. Solely for the purpose of resolving this case, we pre-
sume—without deciding—that probable cause did not exist
and proceed to consider whether the good faith exception to
the exclusionary rule applies.
B. The Good Faith Exception
Under M.R.E. 311(a), evidence seized pursuant to a search
warrant issued without probable cause must be excluded un-
less an exception applies. United States v. Perkins, 78 M.J.
381, 386 (C.A.A.F. 2019). Under the “good faith” exception to
the exclusionary rule, evidence obtained pursuant to a search
warrant that was ultimately found to be invalid should not be
suppressed if it was gathered by law enforcement officials act-
ing in reasonable reliance on a warrant issued by a neutral
and detached magistrate. United States v. Leon, 468 U.S. 897,
918 (1984). The Supreme Court has advised that the “good
faith” exception is unavailable when any of the following four
circumstances are present: (1) the authorizing official was
given incorrect information that was either known to be “false
or would have [been] known [to be] false except for . . . reck-
less disregard of the truth”; (2) the magistrate acted as a “rub-
ber stamp” and thus, abandoned his judicial role; (3) the affi-
davit was “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable”; or (4) the
warrant was facially deficient. Id. at 914, 923–24 (internal
quotation marks omitted) (citations omitted).
The President incorporated the Supreme Court’s guidance
about the good faith exception into M.R.E. 311(c)(3). See
United States v. Carter, 54 M.J. 414, 420 (C.A.A.F. 2001) (cit-
ing Manual for Courts-Martial, United States, Analysis of the
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Opinion of the Court
Military Rules of Evidence app. 22 at A22-18 (1995 ed.)).5 In
so doing, however, the President elected to take the opposite
approach from Leon, establishing three requirements that
must all be satisfied for the good faith exception to apply in-
stead of specifying when the exception does not apply. As rel-
evant to the facts of this case, for the good faith exception to
apply, M.R.E. 311(c)(3) requires: (1) that the magistrate who
issued the search authorization was competent to do so; (2)
that the magistrate who issued the search authorization had
a “substantial basis for determining the existence of probable
cause”;6 and (3) that the investigators “seeking and executing
the authorization or warrant reasonably and with good faith
relied on the issuance of the authorization or warrant.”
Despite their different approaches and although the text
of the four Leon factors and the three M.R.E. 311(c)(3) re-
quirements do not align perfectly, this Court found no evi-
dence that the President intended to promulgate a more strin-
gent rule for the application of the good faith exception in the
military. Carter, 54 M.J. at 421. This Court therefore con-
strued M.R.E. 311(c)(3) in a manner consistent with the Su-
preme Court’s decision in Leon. Id. The Court explained that
M.R.E. 311(c)(3)(B) “addresses the first and third exceptions
noted in Leon, i.e., the affidavit must not be intentionally or
5 In Carter, the Court cited and discussed a prior version of the
rule when the good faith exception was incorporated as M.R.E.
311(b)(3). The good faith exception is now incorporated as M.R.E.
311(c)(3).
6 In Perkins, we held that this requirement is met when the in-
dividual executing the search “had an objectively reasonable belief
that the magistrate had a ‘substantial basis’ for determining the
existence of probable cause.” 78 M.J. at 387 (quoting Carter, 54 M.J.
at 422). This is not the most obvious interpretation of the text of
M.R.E. 311(c)(3)(B). But as this Court explained in Perkins and
Carter, this interpretation of M.R.E. 311(c)(3)(B) is necessary to dis-
tinguish this prong of the good faith exception provision from the
test for probable cause. See Perkins, 78 M.J. at 387 (explaining that
the plain text of M.R.E. 311(c)(3)(B) suggests that the good faith
exception only applies when there is also probable cause to search);
Carter, 54 M.J. at 421–22 (same). If the Court were to give M.R.E.
311(c)(3)(B) its literal meaning, “the good-faith exception would not
be an exception at all, and the language would serve no purpose.”
Carter, 54 M.J. at 421.
13
United States v. Hernandez, No. 21-0137/AF
Opinion of the Court
recklessly false, and it must be more than a ‘bare bones’ re-
cital of conclusions.” Id. The Court further explained that
M.R.E. 311(c)(3)(C) “addresses the second and fourth excep-
tions in Leon, i.e., objective good faith cannot exist when the
police know that the magistrate merely ‘rubber stamped’
their request, or when the warrant is facially defective.” Id.
Before the AFCCA and again before this Court, Appellee
argues that it was clear error for the military judge to
conclude that the good faith exception applied because
SSgt AM drafted his affidavit with a “reckless disregard for
the truth.” In light of how this Court has construed M.R.E.
311(c)(3), we understand Appellee to be arguing that the good
faith exception is not applicable in this case because the
second prong of the rule—M.R.E. 311(c)(3)(B)—has not been
satisfied. Although we acknowledge that the significant
deficiencies in SSgt AM’s affidavit present a close question,
we cannot agree that those deficiencies—standing alone
without any other evidence of bad faith—establish a
“substantial preliminary showing that a government agent
included a false statement knowingly and intentionally or
with reckless disregard for the truth.” M.R.E. 311(d)(4)(B).
In this case, the military judge determined that “the
information in the [search] authorization [application] was
not false or reckless.” This determination is a finding of fact
that we may review only for clear error. See, e.g., Blackburn,
80 M.J. at 211 (treating as a finding of fact the military
judge’s determination that an investigator did not
intentionally or recklessly provide false information in an
application for a search authorization); United States v.
Mason, 59 M.J. 416, 422 (C.A.A.F. 2004) (treating as a finding
of fact the military judge’s determination that an investigator
did not intentionally or recklessly omit relevant information
act). “A finding of fact is clearly erroneous when there is no
evidence to support the finding, . . . or when . . . 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) (internal
quotation marks omitted) (citations omitted). In contrast to
the AFCCA, we conclude that the military judge’s finding was
not clearly erroneous.
14
United States v. Hernandez, No. 21-0137/AF
Opinion of the Court
“Allegations of negligence or innocent mistake are insuffi-
cient” to hold that an affidavit was drafted with a reckless
disregard for the truth. Cowgill, 68 M.J. at 391 (internal quo-
tation marks omitted) (quoting Franks, 438 U.S. at 171). In
this case, SSgt AM’s alleged recklessness was the inclusion of
an incorrect statement—that the MWD alerted to Appellee’s
door three times during the sweep—and the omission of two
things: (1) the fact that marijuana was smelled in the dorm
on occasions before Appellee moved in, not just the day after
he arrived; and (2) an explanation that Jager was not trained
or permitted to search people. During the motions hearing
prior to trial, defense counsel raised these deficiencies before
the military judge. Nevertheless, the military judge still con-
cluded that SSgt AM did not include information in the au-
thorization that was false or reckless and thus the good faith
exception to the exclusionary rule applied. Reviewing the mil-
itary judge’s decision in the light most favorable to the Gov-
ernment, we cannot say that the military judge abused his
discretion when he reached this conclusion for three reasons.
First, other than the errors and omissions in the affidavit
itself (the significance of which were strongly disputed by the
Government), the record does not include any evidence of
recklessness by SSgt AM or the other investigators. To the
contrary, the investigators’ actions during the drug sweep
support the Government’s claim that they acted in good faith.
The drug sweep of the dorm occurred only after a security
force member reported the smell of marijuana in the building.
During the sweep, the team consulted with the base judge ad-
vocate to see if probable cause existed for more invasive
searches. When the base judge advocate said the investiga-
tors had not established probable cause, the team sought and
obtained consent before searching any dorm rooms. After the
sweep, SSgt AM drafted an affidavit that included both facts
in favor of finding probable cause and facts that cut against
such a finding. For example, SSgt AM included the fact that
Jager alerted on a separate floor. The inclusion of correct facts
that could dissuade a magistrate from finding probable cause
is the type of evidence that leads us to believe the incorrectly
included statements and omissions were a result of negli-
gence rather than a reckless disregard for the truth.
15
United States v. Hernandez, No. 21-0137/AF
Opinion of the Court
Second, the military judge “found credible the testimony
of [SSgt AM],” despite the military judge’s recognition that
SSgt AM made “misstatements” in his affidavit. Credibility
determinations are “entitled to great deference on appeal and
will not be reversed absent a clear abuse of discretion.” United
States v. Reynolds, 23 M.J. 292, 294 (C.M.A. 1987); see also
United States v. Rodriguez, 414 F.3d 837, 845 (8th Cir. 2005)
(“[C]redibility is a determination for the trier-of-fact, and its
assessment is virtually unassailable on appeal.”). The mili-
tary judge could reasonably have concluded that SSgt AM
was not reckless when preparing his affidavit based on the
investigator’s demeanor during his testimony.
Third, and most importantly, Appellee’s argument that
SSgt AM drafted his affidavit with a “reckless disregard for
the truth” is significantly undermined by defense counsel’s
statements before the military judge. At the hearing on Ap-
pellee’s motion to suppress, defense counsel expressly stated
that she was not alleging “improper conduct” by SSgt AM. Be-
cause the Appellee carried the burden of making “a substan-
tial preliminary showing” that SSgt AM included a false
statement with reckless disregard for the truth in the infor-
mation presented to the magistrate, see M.R.E. 311(d)(4)(B),
it is difficult to imagine how Appellee could have made such
a showing while disclaiming any “improper conduct” by the
author of the affidavit. In our view, submitting an affidavit
with reckless disregard for the truth would qualify as “im-
proper conduct” for a law enforcement official under any rea-
sonable definition of that phrase.7
Suppression of evidence gathered pursuant to a warrant
is a “last resort, not our first impulse.” Herring v. United
States, 555 U.S. 135, 140 (2009) (internal quotation marks
omitted) (citation omitted). Moreover, “[t]he fact that a neu-
tral magistrate has issued a warrant is the clearest indication
7 Defense counsel’s statement that Appellee was not alleging
“improper conduct” forms the crux of the Government’s argument
that Appellee affirmatively waived any challenge to the search au-
thorization for his urine on the basis of knowing and intentional
falsity or reckless disregard for the truth. Again, we need not—and
do not—decide whether Appellee waived this challenge because we
conclude that the military judge did not abuse his discretion when
he concluded that the good faith exception applied.
16
United States v. Hernandez, No. 21-0137/AF
Opinion of the Court
that the officers acted in an objectively reasonable manner
or . . . in objective good faith.” Messerschmidt v. Millender,
565 U.S. 535, 546 (2012) (internal quotation marks omitted)
(citation omitted). In this case, the magistrate found that
there was probable cause to conduct the search. The military
judge reviewed this finding, applied the proper law, and came
to the same conclusion while also explaining why the good
faith exception would apply regardless of whether probable
cause existed. Although we cannot say that we would have
necessarily reached the same conclusions, we also cannot say
that the military judge abused his discretion, especially given
that Appellee specifically disclaimed any “improper conduct”
by the relevant government official. We therefore conclude
that, whether or not probable cause existed to search Appel-
lee’s urine, the military judge properly admitted the results
of Appellee’s urinalysis into evidence under the good faith ex-
ception to the exclusionary rule.
III. Conclusion
The decision of the United States Air Force Court of Crim-
inal Appeals is reversed. The record of trial is returned to the
Judge Advocate General of the Air Force for remand to the
Court of Criminal Appeals for further proceedings under Ar-
ticle 66, UCMJ, 10 U.S.C. § 866 (2018).
17