United States, Appellee
Michael W. BUSH, Staff Sergeant
U.S. Air Force, Appellant
Crim. App. No. 31462
United States Court of Appeals for the Armed Forces
Argued May 14, 1997
Decided September 30, 1997
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
For Appellant: Major Kevin P. Koehler (argued) and
Lieutenant Colonel Kim L. Sheffield (on brief);
Colonel David W. Madsen.
For Appellee: Lieutenant Colonel Michael J. Breslin
(argued); Colonel Theodore J. Fink (on brief).
Military Judge: William S. Colwell
Opinion of the Court
During July of 1994, appellant was tried by a general court-martial composed of officer members at Andrews Air Force Base, Maryland. Contrary to his pleas, he was found guilty of dereliction of duty by failure to provide a urine sample; and wrongfully using cocaine, in violation of Articles 92 and 112a, Uniform Code of Military Justice, 10 USC §§ 892 and 912a, respectively. He was sentenced to a bad-conduct discharge, 45 days’ confinement, and reduction in rank to E-1. On January 13, 1995, the convening authority approved the sentence. On June 13, 1996, the Court of Criminal Appeals affirmed. 44 MJ 646.
On January 9, 1997, this Court granted review on the following questions of law:
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY DENYING THE DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED AS A RESULT OF AN IMPROPER SEIZURE OF APPELLANT’S HAIR, SINCE OMISSION OF INFORMATION FROM THE AFFIDAVIT TO THE MAGISTRATE UNDERMINED THE MAGISTRATE’S FINDING OF PROBABLE CAUSE TO SEIZE THE HAIR.
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY DENYING THE DEFENSE MOTION TO DISALLOW INTRODUCTION OF TESTIMONY CONCERNING THE RESULTS OF THE HAIR ANALYSIS TEST CONDUCTED ON APPELLANT’S HAIR, SINCE THE TEST WAS NOT A RELIABLE PROCEDURE AS IMPLEMENTED.
We hold that the military judge did not legally err by admitting hair-analysis evidence in this case. See generally Ornelas v. United States, ___ U.S. ___, 116 S.Ct. 1657 (1996); and United States v. Nimmer, 43 MJ 252 (1995).
The Court of Criminal Appeals found the following facts pertinent to this appeal:
On November 15, 1993, appellant was selected to provide a sample for a random drug urinalysis. He showed up at the base theater, as he was directed to do. Thereafter, accompanied by Technical Sergeant (TSgt) Robichaud, the observer, appellant took the sample bottle to the men’s room to provide a specimen. A number of irregularities, the significance of which was not then appreciated, ensured. Appellant elected to use a stall, rather than a urinal, complicating Robichaud’s observation. He continued to wear his field jacket, and had to be directed by Robichaud to turn slightly so that Robichaud could see him urinate. Even then, as Robichaud later admitted, appellant was positioned in such a way that he did not actually see if appellant urinated, but only that liquid appeared to be filling the bottle. Robichaud, and subsequently the urinalysis monitor, remarked on the clarity of the specimen. However, when asked, appellant explained that he had been drinking a great deal of fluid, and the matter passed. The specimen bottle, which had not left appellant’s possession from the time he was given it until he gave it back to the urinalysis monitor, was duly logged, initialed, signed, taped, secured, and mailed to the Armstrong Laboratory at Brooks Air Force Base (AFB) for testing. Once there, one of the laboratory technicians observed that the specimen was colorless, odorless, and did not foam when shaken.
She suspected that a false or adulterated sample had been provided. When a field test indicated that the specimen was not urine, she sent it to Wilford Hall Medical Center, which confirmed that the specimen was not urine, but some sort of saline solution.
Over defense objection, the government introduced evidence that appellant, a medical technician assigned to the Malcolm Grow Medical Center on Andrews Air Force Base (AFB), had access to intravenous bags containing saline solution, along with surgical tubing and a thumbscrew to control flow from the bags. As well, testimony indicated that appellant was capable of reverse self-catheterizing, replacing the urine in his bladder with a saline solution. Regardless of the specific mechanism employed, it is clear that appellant did not provide a genuine urine specimen as he was required to do.
On learning of the discrepancy in early December, the base looked into the possibility of testing appellant’s hair for the presence of drugs. Special Agent (SA) Toni, of the Air Force Office of Special Investigations (AFOSI), contacted the FBI’s forensics laboratory, and was advised that the technology existed to test hair based upon the same biomedical and scientific principles as urinalysis. The advantage, he learned, was that hair potentially would continue to show the presence of cocaine for a period of months after ingestion. The FBI agreed to perform the tests. Using an example borrowed for the AFOSI at Langley AFB, Virginia, SA Toni then prepared an affidavit, stating in pertinent part as follows:
4. . . . As a result of your affiant’s training and information gathered from the Federal Bureau of Investigation (FBI) forensics laboratory, and the Brooks AFB forensics laboratory, your affiant believes trace amounts of drugs may be trapped in the cortex of BUSH’s hail [sic] follicles and in his urine. This is based on the following:
a. As blood circulates through the body, it nourishes the hair follicle. If there are drugs in the blood, trace amounts of the drug become entrapped in the core of the hair in amounts roughly proportional to those ingested. These cannot be washed or flushed out, and do not diminish with time. Urine tests can only determine if drugs have been used within the few days prior to providing a sample, however, hair analysis can detect the use of drugs for months, depending on the length of the hair sample.
b. Hair analysis is not subject to false negatives due to temporary abstention or excessive fluid intake. Hair records drug use in a chronological manner and in proportion to the amount consumed. The FBI laboratory can distinguish between heavy, medium, and light drug users.
5. If drug metabolites are present in BUSH’s hairs, at a level in excess of 3 ng/mg of hair, it would indicate repeated use of drugs.
6. Based on all the information provided above, your affiant requests authorization to seize approximately 100 hairs and a urine sample from the body of SSgt MICHAEL W. BUSH.
The search authority, Colonel Moore, swore SA Toni to the affidavit and granted authority to seize "approximately, 100 hairs," but did not authorize seizure of appellant’s urine. Pursuant to that authority, approximately 100 hairs were cut from the crown of appellant’s head. Although never precisely measured, there was a general consensus that appellant’s hair was "quite short," and that the hairs measured approximately ½ inch in length. Observing the same chain of custody procedures employed in urinalysis drug testing, the hairs were placed into a bottle, sealed, and sent to the FBI laboratory. By letter of February 28, 1994, the FBI reported that the specimens contained "cocaine and its metabolite, benzoylecgonine at concentrations of 17 and 2.7 nanograms per milligram of hair, respectively."2
Based upon this evidence, a general court-martial consisting of members convicted appellant, contrary to his pleas, of dereliction of duty for failure to provide a urine specimen on November 15, 1993, and use of cocaine between on or about November 15, 1993, and January 12, 1994. . . .
* * *
2 Unlike urinalysis, where principally metabolized cocaine (benzoylecgonine) is excreted in urine, unmetabolized cocaine is typically found in hair in five times the amount of its metabolite. According to the testimony of Dr. Donnelly, the government’s expert, the 5-1 ratio is typical of actual ingestion, and indeed, "almost precludes any possibility of external contamination." External contamination would yield a much higher ratio. This datum proved significant in the trial itself, as appellant repeatedly suggested that the hair sample might have become contaminated through some kind of passive exposure.
44 MJ at 647-48 (footnote omitted).
The first question in this case is whether the military judge erroneously denied the defense motion to suppress the Government’s evidence of hair analysis because the tested hair was unlawfully seized from appellant. See generally Mil.R.Evid. 311(a), Manual for Courts-Martial, United States, 1984. Appellant initially asserts that his hair at the time of its seizure was too short to show drug use at the time he was suspected of using it. Accordingly, he argues that neither the investigating AFOSI agent nor the commander ordering the seizure of his hair could possibly have probable cause to believe evidence of that drug use would still be in his hair. See generally United States v. Poole, 30 MJ 271, 275 (CMA 1990) (probable cause may evaporate with the passage of time). He also asserts that the commander who ordered his hair seized on January 12, 1994, was deliberately or recklessly denied material information that would have dissuaded him from ordering that probable-cause seizure. See generally Franks v. Delaware, 438 U.S. 154 (1978). He contends that the investigating officer should have particularly informed the commander that his hair’s length as of January 12th, the date of the expected seizure, was scientifically insufficient to determine cocaine use on or about November 15, 1993.
Initially, we note that the record does not support appellant’s assertion that probable cause had evaporated because his hair was only ½-inch long on January 12, 1994. In fact, the agent testified that he did not know "exactly how long" appellant’s head hair or pubic hair was on January 12, 1994. He estimated that "[i]t would have been at least a half inch. It was probably a half inch to an inch" at the time it was seized. The fact that the hair sample seized was ½-inch long does not undermine the investigator’s and the commander’s practical judgment that a relevant hair sample could still be seized from appellant. See generally Ornelas, ___ U.S. at ___, 116 S.Ct. at 1661 (probable cause is not a legally technical determination but a practicable one).
The initial premise of appellant’s second argument is that the investigating police officer was fully aware of the scientific principles upon which hair analysis was based but "deliberately or recklessly" failed to explain those principles to the commander. In addition, he notes that the police investigator did not tell the commander that hair grows ½ inch per month and at least 1-inch hair would be required on January 12, 1994, to determine whether appellant used drugs on or about November 15, 1993. He notes further that the police investigator failed to inform the commander that appellant’s hair on January 12, 1994, was only ½-inch long and would only show drug use on or after December 12, 1993. He contends deliberate deception or reckless disregard for the truth existed in this case, not mere negligence. See Franks, supra at 170.
We note that the investigating officer in his supporting affidavit did provide a basic explanation of the scientific principles of hair analysis to the commander. Moreover, he specifically advised the commander:
Urine tests can only determine if drugs have been used within the few days prior to providing a sample, however, hair analysis can detect the use of drugs for months, depending on the length of the hair sample.
Finally, although he admitted that he was aware of the ½-inch rule at the time of applying for the search authorization, he asserted that he understood that the hair sample could be taken from the head, pubic area, or other part of the body. In this context, appellant’s deliberate-or-reckless-omission argument is not well taken. See generally United States v. Figueroa, 35 MJ 54, 57 (CMA 1992); United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).
This is not a case in which the probable-cause determination required precise mathematical measurements implementing a specific scientific formula. As noted in the findings of fact by the military judge, Agent Toni’s guidance from the FBI was rather general in nature:
The FBI instructed Agent Toni to obtain the longest hair possible, to cut the hair at the base of the scalp. Agent Toni was not told to obtain a certain or minimum length of hair. The FBI told Agent Toni that hair grows approximately one half inch per month and that drugs could possibly remain in the hair for a period as long as three months, depending on the length of hair sample seized and the growth rate.
Moreover, according to the findings of fact by the military judge, after Agent Toni obtained the search warrant --
Agent Toni subsequently seized about 100 hair samples from the scalp of the accused. The hair was difficult to measure and a measure was not taken after it was cut, because the hair was matted and curly. To the best estimate of Agent Toni, the hair was at least one half inch long to about an inch.
Under these circumstances and in light of the circumstances surrounding the urinalysis which gave rise to the request for a search authorization, it was reasonable for Agent Toni to proceed under the search authorization without applying a precise mathematical limitation to the length of the hair obtained from appellant.
Appellant’s basic argument on the second granted issue is that evidence of mass-spectrometry hair analysis was unlawfully admitted at his court-martial to establish his guilt of using cocaine. Citing the decision of the Navy-Marine Corps Court of Military Review* in United States v. Nimmer, 39 MJ 924 (1994), he argues in his 1997 Final Brief to this Court at 17-18, 24, that such evidence is per se inadmissible under Mil.R.Evid. 702. Citing the decision of the Army Court of Criminal Appeals in United States v. Hill, 41 MJ 596 (1994), he contends such evidence is not admissible as the sole proof of drug use at a court-martial. Finally, citing the landmark decision of the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), he avers that the military judge abused his discretion in admitting this evidence for the first time in any court in our country.
Appellant first asserts that this Court should decide the question of admissibility of hair-analysis evidence "de novo" and ensure "uniform precedent within the federal system regarding the reliability of particular scientific techniques . . . ." Final Brief at 18. He also cites the Nimmer decision of the Navy-Marine Corps Court of Military Review and implies that we should follow that court’s rejection of hair-analysis evidence ("it lacks the necessary scientific underpinning to reliably be able to detect a one-time use of cocaine . . . ." 39 MJ at 928). Final Brief at 17-18. We reject appellant’s invitation to establish a per se rule precluding admission of evidence of hair analysis at courts-martial.
The obvious answer to appellant’s argument in his 1997 brief is the decision of this Court in United States v. Nimmer, 43 MJ 252 (1995). There, this Court set aside the decision of the service appellate court in Nimmer and remanded that case for a hearing on admissibility of hair-analysis testimony in light of Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. The Nimmer decision relied on by appellant, therefore, has no precedential value, so there is no reason to follow it in this case, especially where a proper Daubert-type hearing has been held. In addition, we note that Congress has not provided that this Court make "de novo" admissibility determinations on different types of scientific evidence without regard for evidence of record and a military judge’s ruling under Mil.R.Evid. 702. See United States v. Beasley, 102 F.3d 1440, 1445 (8th Cir. 1996) (Absent judicial notice of reliability of scientific knowledge, Daubert hearing will be held.).
We next turn to appellant’s argument that hair-analysis evidence is inadmissible if it is used as the sole test to determine cocaine use. Appellant notes evidence in the record that the scientific community only considers hair analysis reliable to corroborate or confirm other evidence of cocaine use. He then cites the Army Court of Criminal Appeals decision in United States v. Hill, supra, as generally holding that confirmatory testing evidence is inadmissible at courts-martial if no other evidence shows drug use. Finally, he avers that no other evidence of drug use was admitted in his case and, therefore, the military judge legally erred in admitting the hair-analysis evidence of the Government.
We reject this legal argument for several reasons. First, the Army Court of Criminal Appeals in United States v. Hill, supra, addressed the particular question of admissibility of luminol testing to detect human blood, not hair analysis to detect cocaine or its metabolites. The evidence supporting admission of hair-analysis evidence presented in this case was not before that court, so its decision cannot be considered dispositive of this different question of law. Second, appellant has cited no statute, evidentiary rule, or case law which requires a court to defer to the scientific community’s labeling of a test as "confirmatory." We agree with the military judge that Mil.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, give a military judge broad discretion to regulate admission of scientific evidence at courts-martial with due regard for the advisory opinions of the scientific community. See United States v. Gipson, 24 MJ 246, 252 (CMA 1987). Finally, we agree with the Court of Criminal Appeals in this case that other evidence of drug use was admitted which the hair-analysis evidence corroborated. In particular, the appellate court below noted that evidence was admitted that appellant surreptitiously substituted a saline solution for a urine sample on November 15, 1993. See generally 2 Wigmore, Evidence § 276 (Chadbourn rev. 1979).
Appellant finally attacks the decision of the military judge admitting the hair-analysis evidence as an abuse of his discretion provided in Mil.R.Evid. 702. See generally United States v. Houser, 36 MJ 392, 397 (CMA 1993) (to establish abuse of discretion, "appellant must come ‘forward with conclusive argument’"). He contends that proper application of the Daubert factors to the evidence in his case would lead to the conclusion that hair-analysis evidence is unreliable and inadmissible. These arguments are essentially the same arguments presented to the military judge at trial to prevent admission of the challenged evidence.
The Eighth Circuit in Beasley, 102 F.3d at 1447, recently commented on this type of appellate argument:
In this appeal, Oliver Beasley reasserts his claim that PCR testing does not meet the Daubert standard of reliability. He fails, however, to support this claim with any fact-based arguments designed to convince us that any of the District Court’s findings concerning the reliability of PCR testing are clearly erroneous. Moreover, he does not contend (nor could he plausibly do so) that the District Court failed to follow the method that Daubert prescribes for the judicial assessment of the admissibility of scientific evidence. Instead, in his brief he merely incorporates by reference the arguments found in his trial counsel’s memorandum in support of the motion to exclude the government’s DNA evidence. We reject these arguments. First, they are not properly before us; a litigant cannot make arguments on appeal by incorporating by reference into his appellate brief arguments made in written submissions to the trial court. See 8th Cir. R. 28A(j); Sidebottom v. Delo, 46 F.3d 744, 750 n.3 (8th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995). Second, even if these arguments were properly before us, they are not geared to the standard of review, the clear-error standard, that governs our consideration of alleged errors in the trial court’s fact-finding. See Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). These arguments thus would be of no assistance to Beasley in persuading us that the District Court’s reliability finding regarding the science of PCR testing is clearly erroneous. . . .
We generally agree with the Eighth Circuit that an appellate court of law is not an appropriate place to relitigate a motion to admit expert testimony under Mil.R.Evid. 702. Therefore, we again reject appellant’s invitation to determine de novo the reliability of the hair analysis admitted by the judge in this case. See United States v. St. Jean, 45 MJ 435, 444 (1996) (recognizing abuse-of-discretion standard). As noted by the First Circuit in United States v. Gonzalez-Maldonado, 115 F.3d 9, 15 (1997), a judge’s decision on admissibility "is entitled to great deference" and an appellate court "will reverse . . . [his] decision on this question only if (1) the . . . [trial judge] based the decision on an incorrect legal standard, or (2) we have a definite and firm conviction that the . . . [judge] made a clear error of judgment in the conclusion . . . [he] reached based on a weighing of the relevant factors." (Internal quotation marks omitted.) See generally United States v. Houser, supra (conclusive argument of error).
Turning to appellant’s brief, we note that he does not aver that the military judge relied on an incorrect principle of law in deciding to admit the challenged hair-analysis evidence. See generally United States v. Rouse, 100 F.3d 560, 568 (8th Cir. 1996). In United States v. Nimmer, 43 MJ 252, we remanded the case for a hearing because the military judge did not have the benefit of the Daubert decision in determining that hair analysis was inadmissible. Here, individual defense counsel herself called the military judge’s attention to the Daubert decision, and the military judge expressly referred to it in his written decision. Accordingly, our sole concern in this case is whether appellant has made a conclusive argument that the military judge made a clear error in this case. We are not so persuaded.
Appellant argues that the military judge made a clear error in judgment in determining from the evidence presented in this case that Daubert factors show reliable scientific knowledge was established in this case. He notes the Daubert factors and states: "[T]he expert testimony in the present case fails to meet the criteria of even one of these factors." Final Brief at 19. He then cites evidence of record supporting his arguments on the individual factors and concludes that a finding of reliability was not justified in this case.
In particular, appellant first contends that there was overwhelming evidence presented in this case that mass-spectrometry hair analysis was an untested procedure in detecting drug use. He also contends that there was insufficient evidence of peer review and publication because the only article reviewing the technique was written by the FBI laboratory who performed the test. He also avers that there was no evidence admitted showing an error rate for the hair-analysis procedure performed in this case. Finally, he asserts that there was "insufficient and incomplete documentation of the procedures" (Final Brief at 31) of hair analysis used in this case.
The Government delineates in particular detail in its Answer to Final Brief the substantial evidence presented by the prosecution on each of the above Daubert factors. We agree with its reading of the record. Admittedly, there was disagreement between the experts presented by the parties with respect to some of the Daubert considerations. Nevertheless, we concur with the intermediate appellate court’s conclusion that these disputes do not dictate that the evidence of hair analysis be excluded. It said:
That experts might dispute some particularities of the testing protocol or suggest ways that it could have been improved, or that different controls might be used, or that SOFT [Society of Forensic Toxicologists] might harbor policy concerns about the feasibility of hair analysis for workplace testing, or deem it prudent to have independent corroboration of hair analysis, [sic] even considered in the aggregate, are insufficient bases upon which to exclude the results. A vigorous forensic dialogue between both experts was aptly engaged before the triers of fact, who ultimately decided that Dr. Goldberger’s reservations about and disagreements with Dr. Donnelly’s conclusions were insufficient to raise a reasonable doubt that appellant had used cocaine. Thomas, 43 MJ [626,] at 633 [(A.F. Ct. Crim. App. 1995)]. Thus, we hold the military judge did not abuse his discretion in denying appellant’s motion in limine and permitting qualitative and quantitative analysis of appellant’s hair to go before the court members.
44 MJ at 652 (footnote omitted). In these circumstances, we have no firm and definite conviction that the military judge erred in determining that the proffered hair-analysis evidence was reliable and relevant in appellant’s case. (The detailed ruling of the military judge on admissibility is attached as an appendix.) [Appendix]
In summary, we conclude that the evidence of mass-spectrometry hair analysis proffered in this case was admissible because the hairs analyzed were lawfully seized from appellant with probable cause. See Ornelas v. United States, supra (probable cause should be practically, not technically applied). In addition, we conclude that the military judge did not abuse the discretion provided to him under Mil.R.Evid. 702, when based on the record before him, he admitted evidence of hair analysis in this case. See generally United States v. Nimmer, 43 MJ 252 (CMA 1995). Such a decision is not unprecedented in Federal law. See United States v. Medina, 749 F.Supp. 59 (E.D. NY 1990).
As a postscript, there is some irony to be noted in this case. For years, the military has used urinalysis to prove drug use. See generally United States v. Ford, 23 MJ 331 (CMA 1987); United States v. Murphy, 23 MJ 310 (CMA 1987); United States v. Harper, 22 MJ 157 (CMA 1986). In this case, Staff Sergeant Bush thwarted a urinalysis by surreptitiously substituting a saline solution for a urine sample. The Government now has seized his hair and, by due process, proved drug use. This may be the first drug-use conviction by hair analysis, and it is ironic that Sergeant Bush had a hand in making the Government break new ground in drug detection to catch him.
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
Chief Judge COX and Judges GIERKE and EFFRON concur.
CRAWFORD, Judge (dissenting):
On November 15, 1993, appellant was selected to provide a urine specimen for a random drug-urinalysis test. After appellant provided the sample, the observer, Technical Sergeant Robichaud, noticed that the liquid was relatively clear. Nonetheless, the bottle was sent to the laboratory. On December 1, 1993, test results suggested that the sample was probably a saline solution. Because of the lapse of time, Office of Special Investigations (OSI) agents thought probable cause was lacking to request another urine sample. Special Agent (SA) David Toni interviewed appellant, who denied submitting a false urine sample. An interview with co-workers produced no evidence that appellant had taken illegal drugs.
As an alternative, SA Toni considered testing appellant's hair samples for drug residue, which could indicate appellant used drugs around November 15, 1993. When SA Toni talked to personnel at the FBI laboratory about hair samples, he was informed that hair grows approximately half an inch per month.
SA Toni then sought a search warrant from the base commander, Colonel Moore. On January 12, 1994, SA Toni submitted an affidavit to Col. Moore in order to obtain the hair sample. The affidavit stated that appellant worked in emergency medical services and had access to saline solution and a dispensing apparatus. Based on this information plus the information concerning the prior urinalysis test, the commander granted SA Toni permission to seize 100 hair samples from appellant’s scalp. However, the affidavit made no mention of the amount hair grows per month.
At trial, Dr. Donnelly of the FBI Laboratory, who performed the hair analysis, testified that appellant's hair samples were approximately half an inch in length/1 and established that appellant had "consumed cocaine" because the hair contained 17 nanograms of cocaine per milligram of hair, and 2.7 nanograms of benzoylecgonine per milligram of hair. Appellant sought unsuccessfully to suppress the evidence concerning testing of the hair.
The defense argues that there could not be probable cause to search appellant's hair in January if hair grows half an inch per month. Thus, probable cause to make the seizure would only have existed between November 15 and December 15.
The Government argues that if the agent was incorrect in not informing the magistrate as to the rate of hair growth, the good-faith exception should be applied. The Government notes that the agents did not consider the hair-growth rate when they obtained the warrant.
As with many constitutional issues, there is a fundamental structure to doctrinal analysis when examining Fourth Amendment issues. That analysis examines Fourth Amendment coverage/2 and protection./3 Coverage exists when there is a right to privacy against government agents/4 using any of their senses or mechanical equipment to "observe"/5 areas that are normally considered "private"/6 or interfere with the freedom of movement of a person./7 Taking blood from an individual/8 or obtaining fingernail scrapings/9 constitutes a Fourth Amendment search. Once it is determined that coverage exists, the next issue is whether there was a violation of Fourth Amendment protections under the warrant requirement or under one of the specifically limited exceptions to the warrant requirement./10
The equivalent of a warrant in the military is an authorization by a commander./11 Such authorization must satisfy the probable-cause/12 and specificity/13 requirements of the Fourth Amendment. The military, unlike some states, does not have a statute addressing how to obtain and identify physical characteristics of a suspect./14 Thus, this Court must resort to general Fourth Amendment principles. To obtain hair samples from an individual requires reasonable grounds to believe that the hair would assist in a criminal prosecution./15 The officer's actions may fill in any insufficiency in the authorization./16 In this instance the search authorization did not designate whether the hair sample should be head hair, body hair, or genital hair. The officer's action will fill in the lack of specificity./17 After the warrant was obtained, SA Toni focused on head hair. He asked Sergeant Carpenter to obtain approximately 100 hair samples from the crown of appellant's head.
In his affidavit, SA Toni did not tell Col. Moore that appellant's hair was short and that hair grew ½ inch per month. Hypothetically, let us consider that SA Toni was told by an informant that on November 15 Morgan had drugs in his house. In December, the same informant tells SA Toni that the drugs have been removed and sold. However, in January, when SA Toni seeks the search authorization from the commander, he does not tell the commander that the drugs were removed in December. It is not necessary for appellant to establish "by direct evidence that the affiant makes an omission recklessly. Rather, it is possible that when the facts omitted from the affidavit are clearly critical to a finding of probable cause, recklessness may be inferred from proof of the omission itself."/18 When there is a reckless omission by a law enforcement officer, the underlying information will be reevaluated as if the correct information had been given./19 Had that been done in this case, there would be no probable cause to seize hair from appellant's head on January 12, 1994.
Under the circumstances of this case, there were no grounds to believe that the 100 hair samples obtained from appellant's head would have any evidence that related to submission of a fraudulent urine sample on November 15, 1993.
The Government argues that SA Toni was a new agent and was on probationary status and had no training in obtaining hair analysis. The lack of training is not an excuse for failing to know what probable cause would mean in terms of obtaining hair samples./20 For the good-faith exception to apply, "[a]t the very least, the officer must be familiar with well-established principles" of probable cause./21 If one were to excuse SA Toni because of lack of training, such excuses would create incentive not to train officers and would undercut the right of privacy of all servicemembers.
For the reasons stated above, I dissent. I would reverse the decision of the Court of Criminal Appeals.
2/ United States v. Taylor, 41 MJ 168, 170 (CMA 1994) ("Mil.R.Evid. 311 through 317, like the decisions of the Supreme Court, divide Fourth Amendment issues between coverage (that is, when the Fourth Amendment is applicable) and protections.").
In United States v. Muniz, 23 MJ 201, 206-07 (CMA 1987), then-Judge Cox wrote the following:
The Fourth Amendment consists of two main
components. The first part refers to the
right of the people to be free of unreason-
able searches. The second part discusses
the circumstances under which warrants may
issue. The interrelationship between the
two parts has historically been expressed in
terms such that searches without a valid
warrant are unreasonable, unless they fall
within one of the recognized exceptions to
the warrant requirement; and the burden is
on the Government to show that the search
fits within an exception.
3/ In United States v. Rivera, 10 MJ 55, 57-58 (CMA 1980), the Court reiterated:
"[S]earches conducted outside the judicial
process, without prior approval by judge
or magistrate, are per se unreasonable
under the Fourth Amendment-subject only
to a few specifically established and
well-delineated exceptions." Katz v.
United States, 389 US 347, 357 [, 88 S.Ct.
507, 19 L.Ed.2d 576)] (1967)(footnotes
omitted). One well-recognized exception
to the requirement that a magistrate or
judicial officer must authorize certain
searches is found in the military practice
permitting commanding officers or their
delegates to authorize searches upon probable
4/ See Mil.R.Evid. 311(c), Manual for Courts-Martial, United States (1995 ed.).
7/ United States v. Mendenhall, 446 U.S. 544 (1980). "[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 554.
16/ United States v. Cunningham, 113 F. 3d 289 (1st Cir. 1997)(holding officer's knowledge satisfied specificity requirement); see United States v. Brown, 49 F.3d 1162, 1169 (6th Cir. 1995)(holding that executing officer's knowledge "may cure" insufficiencies in warrant).
18/ Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997), quoting United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980)(holding that "[a] party need not show by direct evidence that the affiant makes an omission recklessly"); United States v. McNeese, 901 F.2d 585, 593, 594 (7th Cir. 1990) (citations omitted) (holding that one, by a preponderance of the evidence, "must offer direct evidence of the affiant’s state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard"); see also United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990). Cf. United States v. Figueroa, 35 MJ 54, 57 (CMA 1992) ("Even if the omission had been intentional or reckless, its inclusion would not have extinguished probable cause."); but see United States v. Mankani, 738 F.2d 538, 546 (2d Cir. 1984) (holding search warrant valid because there was "no direct evidence that omissions, if any, were intentionally or recklessly made").
19/ See United States v. LaMorie, 100 F.3d 547, 555 (8th Cir. 1996); United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994); see also Madiwale v. Savaiko, 117 F.3d 1321 (11th Cir. 1997); Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997); Sherwood v. Mulvihill, 113 F.3d 396, 400 (3d Cir. 1997).