U.S. v. Bethea, 61 M.J. 184

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. 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 searched; 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; a probable cause determination is a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place
2. probable cause is a flexible, common-sense standard; 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; 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
3. a substantial basis existed for finding probable cause to support a military magistrate’s authorization to seize appellant’s hair to test it for evidence of drug use where the affidavit before the magistrate indicated (1) a positive urinalysis result from appellant consistent with, though not necessarily indicative of, multiple uses of cocaine, and (2) information that an analysis of appellant’s hair would detect multiple uses of cocaine; it was as likely as not that evidence of drug use would be found in appellant’s hair, and that degree of likelihood more than satisfies the probable cause standard

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s determination of whether probable cause existed to support a search authorization is reviewed for an abuse of discretion; the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed; in reviewing probable cause determinations, courts must look at the information made known to the authorizing official at the time of his decision; and the evidence must be considered in the light most favorable to the prevailing party