U.S. v. Garcia, 80 M.J. 379

First Principles: Constitutional Matters: Search and Seizure

1. 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 include in an affidavit false information that is material to a search authorization request, or to make material omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge abused her discretion in finding that the omissions in the affidavit were material to extinguish a probable cause determination; an omission must do more than potentially affect the probable cause determination; it must be necessary to the finding of probable cause, and that was not the case here; in addition, the military judge abused her discretion because she misapprehended the law when she cited the need for the government to provide a complete picture to the search authority, and faulting the investigative agent for picking and choosing what facts to provide the search authority and thereby denying him the full picture of evidence and information; 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

Core Criminal Law Subjects: Evidence: Search and Seizure › Derivative evidence

1. evidence derived from an unlawful search constitutes fruit of the poisonous tree and is subject to exclusion; 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; the purpose of the independent source doctrine is to put the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred because if evidence with an independent source were excluded, this would put the police in a worse position than they would have been in absent any error or violation
2. not all evidence that is gathered either prior to or after an unlawful search is necessarily fruit of the poisonous tree; the only true poisonous fruit is evidence that was gathered as a result of the unlawful search
3. in this case, the second DNA analysis was not derived from the first and there were independent sources to support the second search authorization that included the lab analyses of the DNA evidence taken from the victim’s vaginal swabs and from another witness who was present, the victim’s pretextual text exchange with appellant, and the law enforcement interviews of appellant, the victim and the other witness

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

1. it is a fundamental fact that probable cause is not a high bar

Core Criminal Law Subjects: Evidence: Search and Seizure › Warrants

1. 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 include in an affidavit false information that is material to a search authorization request, or to make material omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate
2. n accused may challenge a search authority’s probable cause determination on the basis that law enforcement knowingly or recklessly misstated information in, or omitted material information from, an affidavit in support of the search authorization; and an appellate court applies the MRE 311(d)(4)(B) framework to evaluate these claims of intentional or reckless misstatements or omissions
3. as a first step under the MRE 311(d)(4)(B) framework, an appellate court examines the trial judge’s findings that the government omitted relevant information from the affidavit, and that the government did so recklessly or intentionally; these are questions of fact; assuming that the trial judge’s finding of fact regarding these issues is not clearly erroneous, as a second step, an appellate court conducts a de novo review to determine whether those reckless or intentional omissions were material because their inclusion in the affidavit would have extinguished probable cause; and information is material if it is of such a nature that knowledge of the item would affect a person’s decision-making
4. government agents are not required to provide all relevant information in seeking a search authorization
5. in this case, the central question is whether the inclusion of intentionally and recklessly omitted information from the search authorization affidavit would have extinguished probable cause in the search authorization request; and in making this determination, an appellate court must first examine the affidavit and accompanying 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 probable cause is not a high bar; an appellate 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; next, the appellate court must consider whether the information that the government deliberately or recklessly omitted from the affidavit served to extinguish probable cause
6. in this case, a commonsense assessment of the totality of the circumstances presented in the affidavits is that there was a fair probability that the DNA evidence from the third person found on the victim’s vaginal swabs would match the DNA profile of appellant; therefore, upon de novo review, an appellate court could conclude that that the facts contained within the affidavits supported a probable cause determination to obtain buccal swabs from appellant
7. in this case, the information that the government deliberately or recklessly omitted from the affidavit did not serve to extinguish probable cause (1) where although the affidavit omitted a statement from the victim about the clothes she was wearing when she awoke, other parts of the affidavit made it abundantly clear that the victim’s recollection of the events in question was very hazy due to her high level of intoxication, (2) where despite the military judge’s assertion to the contrary, the victim’s state of dress when she emerged from the bedroom was correctly included in the affidavit, and in any event, her state of dress at that time had little to do with whether appellant had previously sexually assaulted her in the room, (3) where a second reference was omitted with respect to the victim having had sex with another airman that night, the omission was merely cumulative evidence, and (4) where another omission simply led the military judge to make an unsupported conjecture about the victim recently engaging in sex with her ex-boyfriend

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in Article 62, UCMJ, cases, an appellate court reviews a trial judge’s suppression ruling directly for an abuse of discretion; moreover, it examines the evidence in a light most favorable to the party which prevailed at trial; and when conducting this discretionary review of the trial judge’s suppression ruling, it reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; a finding 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; an abuse of discretion occurs when a trial judge makes clearly erroneous factual findings or when the trial judge misapprehends the law

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

1. in Article 62, UCMJ, cases, an appellate court reviews a trial judge’s suppression ruling directly for an abuse of discretion; moreover, it examines the evidence in a light most favorable to the party which prevailed at trial; and when conducting this discretionary review of the trial judge’s suppression ruling, it reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; a finding 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; an abuse of discretion occurs when a trial judge makes clearly erroneous factual findings or when the trial judge misapprehends the law
2. in this case, the central question is whether the inclusion of intentionally and recklessly omitted information from the search authorization affidavit would have extinguished probable cause in the search authorization request; and in making this determination, an appellate court must first examine the affidavit and accompanying 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 probable cause is not a high bar; an appellate 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; next, the appellate court must consider whether the information that the government deliberately or recklessly omitted from the affidavit served to extinguish probable cause