United States v. Bethea

IN THE CASE OF
UNITED STATES, Appellee
v.
Terrence A. BETHEA, Master Sergeant
U.S. Air Force, Appellant
No. 05-0041
Crim. App. No. 35381
United States Court of Appeals for the Armed Forces
Argued April 11, 2005
Decided June 23, 2005
GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Christopher S. Morgan (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, Major Sandra K.
Whittington, and Major James M. Winner (on brief)
For Appellee: Major Carrie E. Wolf (argued); Lieutenant Colonel
Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and Major
Kevin P. Steins (on brief)
Military Judge: David F. Brash
This opinion is subject to revision before final publication .
United States v. Bethea, No. 05-0041/AF
Chief Judge GIERKE delivered the opinion of the Court.
Appellant’s urine sample tested positive for the metabolite
of cocaine. A military magistrate then issued a search
authorization to seize a hair sample from Appellant to test it
for evidence of drug use. We conclude that the search
authorization was supported by probable cause.
BACKGROUND
Appellant was tried by a general court-martial for a single
specification alleging use of cocaine on divers occasions
between January 17, 2001, and February 16, 2001. Following a
contested trial, the members found Appellant guilty as charged
of violating Article 112a, Uniform Code of Military Justice
(UCMJ).1 A key piece of evidence against Appellant was the
result of a hair analysis that indicated multiple uses of
cocaine. The admissibility of that evidence is the subject of
this appeal.
On February 7, 2001, Appellant provided a urine sample as
part of a random drug test. His urine sample contained 238
nanograms per milliliter of the cocaine metabolite; the
Department of Defense’s (DOD’s) cutoff for a “positive” test
result is 100 nanograms per milliliter.
Following this positive urinalysis result, an Air Force
Office of Special Investigations (OSI) agent interviewed
1
10 U.S.C. § 912a (2000).
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Appellant, who denied that he had knowingly used cocaine. OSI
Special Agent (SA) Michael Tanguay then sought authorization to
seize a hair sample from Appellant for further testing. He
presented an affidavit to Yokota Air Base’s primary magistrate,
Colonel Dale A. Hess. The affidavit described the results of
Appellant’s urinalysis. It stated next that, based on SA
Tanguay’s training and information gathered from a forensic
science consultant and the National Medical Services Laboratory,
“affiant believes trace amounts of cocaine may be trapped in the
cortex of BETHEA’s hair follicles.” The affidavit then went
into greater detail to support that conclusion, explaining that:
a. As the blood circulates through the body, it
nourishes the hair follicle. If there are drugs in
the blood, trace amounts of the drug become trapped in
the internal portion of the hair, known as the cortex.
Those traces remain in the hair as it grows out from
the body. These are not removed with routine hygienic
washings nor are they flushed out. Thus, chronic drug
use, as well as a binge use of a drug, can be detected
for a period of up to several months, depending on the
length of the hair sample.
The affidavit also described the scientific tests used to
analyze hair for evidence of drug use. The affidavit then
compared urine testing with hair testing:
c. While urine tests can determine whether a
drug was used at least once within the recent past,
hair analysis potentially provides information on a
binge use or chronic drug use ranging from months,
depending on the length of the hair and the type of
hair.
d. Hair analysis is not subject to false
negatives due to temporary abstention or excessive
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United States v. Bethea, No. 05-0041/AF
fluid intake. It is currently accepted that hair
records drug use in chronological manner and in
relative proportion to the amount consumed. The
National Medical Services Laboratory can distinguish
between heavy, medium and light drug users.
Consequently, such hair analysis may be used to prove
binge use as well as multiple and/or chronic use of
controlled substances.
After spending approximately fifteen minutes with SA
Tanguay, the military magistrate issued an authorization to
seize from Appellant “[b]odily hair for the purposes of drug
testing.” The resulting analysis indicated that Appellant had
used cocaine on multiple occasions.
At trial, the defense moved to suppress the results of the
hair analysis. The defense argued that the authorization to
seize Appellant’s hair was not supported by probable cause.
During the suppression hearing, the military magistrate who
authorized the search took the stand. Colonel Hess testified
that “in my mind there was no doubt” probable cause existed. He
stated that he was not “concerned about binge use. I was
concerned about the fact that [Appellant] came up positive on
urinalysis and I wanted confirmation.” He testified that “I
knew . . . that the hair test would confirm whether or not he
had used cocaine.” He indicated that this conclusion was
“[b]ased on previous knowledge and experience” that the
affidavit “confirmed.”
During the suppression hearing, OSI Special Agent (SA)
Shannon Nuckols also testified. SA Nuckols was one of six OSI
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United States v. Bethea, No. 05-0041/AF
forensic science consultants. SA Nuckols testified that he did
not know if hair analysis can detect “a specific single use.”
But, SA Nuckols testified, a hair analysis will indicate
“multiple uses over a period of time.” He later clarified that
“binge or chronic use . . . would show up in hair.” He defined
binge use as “numerous uses over a short period of time, 12, 24,
36 hours.” SA Nuckols also testified that “a positive
urinalysis doesn’t necessarily show a single use. You can get
multiple uses that show up in a urinalysis.” While SA Nuckols
was on the stand, the military judge said, “I want to move back
from the science a little bit and just talk sort of logic or
common sense. Somebody pops positive on a urinalysis 30 days
ago, is there a fair shot hair is going to be able to detect
some drug?” SA Nuckols answered, “Yes, Sir.”
On cross-examination, the defense established that SA
Nuckols had previously testified at the Article 32 investigation2
that “a single small use” of cocaine would not be detected by
hair analysis. SA Nuckols then expanded, “[M]y experience and
training is if I had to choose between the two methods,
urinalysis and hair, if you’re looking for a single use,
urinalysis would be better. And that typically hair shows
chronic uses -— multiple uses.” SA Nuckols also agreed with the
military judge that based on the DOD cutoff levels, a positive
2
See Article 32, UCMJ, 10 U.S.C. § 832 (2000).
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urinalysis is “equally consistent with the tail end of a binge
use or . . . a very small use [a] short time prior to submission
of the sample.”
The military judge denied the motion to suppress. He
concluded that “the positive urinalysis alone, coupled with the
information available to the magistrate, more than adequately
demonstrates a reasonable likelihood that cocaine or a cocaine
derivative will be found in the accused’s hair,” especially
because the seizure would occur “within a month of the alleged
use.” The military judge concluded that evidence derived from
seizing the hair was admissible “even if the Magistrate operated
under the assumption that the accused had only used cocaine on
one occasion approximately two weeks before the requested
search.” The military judge concluded that the “[m]agistrate
relied upon information he had been provided which suggests that
drug hair testing can detect a single drug use, albeit
characterized as ‘binge.’” The military judge then observed
that he was “convinced that it is more than reasonable to
assume, based upon the contents of the affidavit, that hair drug
testing can detect a . . . single drug use if the hair test is
performed within two months of the alleged use, regardless of
how that use may be characterized.”3
3
We caution that we express no opinion as to the correctness of
the military judge’s interpretation of “binge” or the accuracy
6
United States v. Bethea, No. 05-0041/AF
The military judge also found that “there was no evidence
whatsoever, either direct or circumstantial,” that the
requesting agents had intentionally or recklessly withheld
relevant information from the military magistrate. The
military judge then repeated that a hair analysis can detect
“binge use,” which “can reasonably mean one or a series of large
doses.” He concluded that SA Nuckols’s testimony and the
affidavit itself “clearly” indicate that “a single use of
cocaine can be detected by hair testing, particularly when the
hair is seized within several months of the alleged use.”
The military judge also concluded in the alternative that,
even if the search authorization had not been supported by
probable cause, the evidence would be admissible under the good
faith exception to the exclusionary rule.
The Air Force Court of Criminal Appeals affirmed the
military judge’s ruling in an unpublished opinion.4 The Air
Force Court ruled that Appellant’s urinalysis results were
“sufficient to establish a ‘fair probability’ that the
appellant’s hair would contain evidence of cocaine use.”5 The
Air Force Court also agreed with the military judge that
regardless of whether the authorization was supported by
of the military judge’s characterization of the ability of hair
analysis to detect a single use of a controlled substance.
4
United States v. Bethea, No. ACM 35381, 2004 CCA LEXIS 175,
2004 WL 1725024 (A.F. Ct. Crim. App. July 20, 2004).
5
2004 CCA LEXIS 175, at *5, 2004 WL 1725024, at *2.
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United States v. Bethea, No. 05-0041/AF
probable cause, the evidence would be admissible because the OSI
agents who seized Appellant’s hair sample “acted in ‘objectively
reasonable reliance’ upon the magistrate’s facially valid search
authorization.”6
DISCUSSION
This case concerns whether Appellant’s urinalysis results
provided probable cause to support the seizure of a sample of
his hair.
The affidavit presented to the military magistrate
established that Appellant’s urine contained the metabolite that
the body produces following the use of cocaine. Neither
Appellant’s results in particular, nor positive urinalysis
results in general, suggest whether the individual used a
controlled substance once or more than once. So Appellant’s
urinalysis results were equally consistent with a single use of
cocaine or with multiple uses.
The affidavit that was before the military magistrate
indicated only that hair analysis would detect “binge” or
“chronic” use of a drug. Yet the military magistrate suggested
and the military judge expressly stated that they believed hair
analysis could detect a single use of cocaine. To decide this
case, we need not engage in a semantic analysis of the meaning
6
2004 CCA LEXIS 175, at *5-*6, 2004 WL 1725024, at *2 (citing
United States v. Pond, 36 M.J. 1050, 1059 (A.F.C.M.R. 1993)).
8
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of “binge.” Even if that term is properly understood to refer
only to multiple uses, we conclude for the reasons set forth
below that Appellant’s urinalysis results provided probable
cause to seize a sample of his hair.
A military judge’s determination of whether probable cause
existed to support a search authorization is reviewed for an
abuse of discretion.7 “The duty of a reviewing court is simply
to ensure that the magistrate had a substantial basis for . . .
conclud[ing] that probable cause existed.”8 “In reviewing
probable cause determinations, courts must look at the
information made known to the authorizing official at the time
of his decision. The evidence must be considered in the light
most favorable to the prevailing party.”9
“Probable cause to search exists when there is a reasonable
belief that the person, property, or evidence sought is located
in the place or on the person to be search[ed].”10 The test for
probable cause is whether, under the “totality of the
circumstances,” the magistrate had a “substantial basis” for
determining that probable cause existed.11 A probable cause
determination is a “practical, common-sense decision whether,
7
United States v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001).
8
Id. (alternations in original) (internal citations and internal
quotation marks omitted).
9
Id. (internal citation omitted).
10
Military Rule of Evidence 315(f)(2).
11
Illinois v. Gates, 462 U.S. 213, 230, 239 (1983).
9
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given all the circumstances set forth in the affidavit before
him, including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.”12
The Supreme Court has emphasized that “probable cause is a
flexible, common-sense standard.”13 A probable cause
determination merely requires that a person “of reasonable
caution” could believe that the search may reveal evidence of a
crime; “it does not demand any showing that such a belief be
correct or more likely true than false.”14 So even though
“people often use ‘probable’ to mean ‘more likely than not,’
probable cause does not require a showing that an event is more
than 50% likely.”15
12
Id. at 238.
13
Texas v. Brown, 460 U.S. 730, 742 (1983).
14
Id. (emphasis added) (quoting Carroll v. United States, 267
U.S. 132, 162 (1925)).
15
United States v. Olson, No. 03-CR-51-S, 2003 U.S. Dist. LEXIS
24607, at *16, 2003 WL 23120024, at *5 (W.D. Wis. July 11, 2003)
(citing United States v. Garcia, 179 F.3d 265, 269 (5th Cir.
1999)). See also Ostrander v. Madsen, Nos. 00-35506, 00-35538,
00-35541, 2003 U.S. App. LEXIS 1665, at *8, 2003 WL 193565, at
*2 (9th Cir. Jan. 28, 2003) (“Probable cause is met by less than
a fifty percent probability, so that even two contradictory
statements can both be supported by probable cause.”); Samos
Imex Corp. v. Nextel Communications, Inc., 194 F.3d 301, 303
(1st Cir. 1999) (“The phrase ‘probable cause’ is used, in the
narrow confines of Fourth Amendment precedent, to establish a
standard less demanding than ‘more probable than not.’”); United
States v. Burrell, 963 F.2d 976, 986 (7th Cir. 1992) (“‘Probable
cause requires more than bare suspicion but need not be based on
evidence sufficient to support a conviction, nor even a showing
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When evaluated under this standard, the affidavit provided
the military magistrate with a substantial basis for concluding
that there was probable cause to authorize the seizure of
Appellant’s hair. The urinalysis results were consistent with,
though not necessarily indicative of, multiple uses of cocaine.
The information presented to the military magistrate indicated
that an analysis of Appellant’s hair would detect multiple uses
of cocaine. So it was as likely as not that evidence of cocaine
use would be found in Appellant’s hair. That degree of
likelihood more than satisfies the probable cause standard.
In light of our holding that there was a substantial basis
for finding probable cause, we need not consider whether the
military judge and the Air Force Court were correct when they
determined that even absent probable cause, the evidence would
have nevertheless been admissible under the exclusionary rule’s
good faith exception.
that the officer’s belief is more likely true than false.’”)
(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949));
United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987) (“In order
to establish probable cause, it is not necessary to make a prima
facie showing of criminal activity or to demonstrate that it is
more probable than not that a crime has been or is being
committed.”) (internal quotation marks and citation omitted).
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DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
12