U.S. v. Cowgill, 68 M.J. 388

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment requires that no warrants shall issue, but upon probable cause

Military Justice Personnel: Military Judge: Discretion

1. an abuse of discretion occurs if the military judge’s findings of fact are clearly erroneous or if the decision is influenced by an erroneous view of the law
2. a military judge would not abuse her discretion when denying a motion to suppress evidence from appellant’s home if the magistrate who issued the search warrant had a substantial basis for determining that probable cause existed; probable cause exists when there is sufficient information to provide the authorizing official a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched

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

1. a military judge would not abuse her discretion when denying a motion to suppress evidence from appellant’s home if the magistrate who issued the search warrant had a substantial basis for determining that probable cause existed; probable cause exists when there is sufficient information to provide the authorizing official a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched
2. in accordance with MRE 311(g)(2), at a hearing reviewing whether probable cause existed for a search warrant, the defense has the burden of establishing by a preponderance of the evidence the allegation of knowing and intentional falsity or reckless disregard for the truth
3. erroneous information in a civilian police officer’s search warrant affidavit, based on his conversation with an OSI agent, was provided to a civilian magistrate with reckless disregard for the truth and could not be considered in determining whether the warrant to search appellant’s home for drugs was supported by probable cause, where the officer failed to first validate the affidavit and its contents with the OSI, even though he did not have direct contact with the confidential informant mentioned in the affidavit, have information regarding the nature of the informant, including his military status, or have information about an allegedly corroborative urinalysis drug test
4. probable cause relies on a common-sense decision whether, given all the circumstances, there is a fair probability that contraband will be found
5. search of appellant’s home pursuant to a magistrate’s search warrant was supported by probable cause, even absent erroneous corroboration indicating that a positive urinalysis test was conducted as the result of a confidential informant’s information, where the supporting affidavit included the police officer’s statements about his conversation with an OSI agent that the informant was reliable, a description of the statements from the informant, and verification of appellant’s address along with confirmation of the description of appellant’s home as provided by the informant, where the informant had described witnessing appellant along with his roommate smoke marijuana, the drug paraphernalia they used to do so, and the persistent smell of drugs in appellant’s home, and where appellant’s roommate had failed a drug test during the time that the informant asserted the drug use was occurring; based on the totality of the circumstances, the military judge did not abuse her discretion in admitting the evidence seized from appellant’s home; while the drug test was not recent, it was not stale for the purposes of corroborating the informant’s statement with respect to appellant’s generalized use of marijuana over a six-month period; in addition, the police officer’s verification of appellant’s address confirmed the source’s description of the home and the source’s incriminating statements were specific as to time and granular as to deed

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

1. a military judge’s decision to find that probable cause existed to support a search authorization as well as to admit or exclude evidence is reviewed for an abuse of discretion; an abuse of discretion occurs if the military judge’s findings of fact are clearly erroneous or if the decision is influenced by an erroneous view of the law; in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party
2. in reviewing probable cause determinations, an appellate court examines the information known to the magistrate at the time of his decision to authorize a search, and the manner in which the facts became known; when there are misstatements or improperly obtained information in a warrant affidavit, the court severs those from the affidavit and examines the remainder to determine if probable cause still exists