AF: Franks violation led to exclusion

Defendant showed a Franks violation for a reckless statement for a search authorization of his room for marijuana. Balancing the interests, the exclusionary rule would be applied. United States v. Hernandez, 2020 CCA LEXIS 362 (A.F. Ct. Crim. App. Oct. 8, 2020) (unpublished):

We conclude SSgt AM was not simply negligent in drafting his affidavit. With respect to the odors in the dormitory building, SrA AC testified he told SSgt AM about the dormitory resident who said she smelled marijuana in the building both before and after Appellant moved in. We have little reason to question SrA AC’s veracity on this point, as SrA AC documented the two dates the resident said she smelled marijuana in his notes which he was taking at the time of the search. SSgt PO testified he told SSgt AM that Jager’s alert on Appellant was unusual. No witness or other evidence supported SSgt AM’s claim Jager alerted twice on Appellant’s door; in fact, SSgt PO specifically rejected this claim. Assuming SSgt AM did not intentionally include false information about Jager alerting on the door, we find his failure to confirm this information with SSgt PO Jager’s handler prior to executing his affidavit to be a reckless disregard for the truth of the matter. Considering the affidavit as a whole, we find it to be crafted in such a way as to focus the magistrate’s attention on Appellant, to overstate the facts supporting a conclusion that Appellant was using drugs, and to minimize or omit information that would give rise to obvious reasons to doubt the allegation. As a result, SSgt AM’s affidavit painted a wholly inculpatory picture, misleading Col PN in his determination of probable cause to grant the search authorization in spite of the shortcomings in the factual basis for doing so. We conclude SSgt AM drafted his affidavit with a reckless disregard for the truth, and it was clear error for the military judge to conclude otherwise.

D. Exclusion

In spite of the unlawful seizure and search in this case, the resulting evidence will still not be excluded unless such exclusion “results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.” Mil. R. Evid. 311(a). Based upon the facts here, we conclude exclusion is appropriate. SSgt AM’s reckless disregard for the truth in drafting his affidavit led to the involuntary seizure of Appellant’s bodily fluids and the subsequent analysis of those fluids for evidence of criminal conduct. As a result, Appellant was forced to turn over the evidence which incriminated him, evidence which was contained within the sanctity of his body. Despite the fact military members are routinely called upon to provide urine samples in order to maintain military readiness, these members do not forfeit their rights under the Fourth Amendment by virtue of volunteering for military service. Breaching a person’s bodily integrity in order to search for evidence is a substantial invasion of an individual’s right, and such an invasion must be based upon probable cause absent extenuating circumstances not presented here. This calls for a scrupulous adherence to the procedures for obtaining a search authorization, which – at the very minimum – means insisting upon supporting affidavits prepared with due care and without a reckless disregard for the truth. The deterrent effect of excluding the evidence in this case is significant, as it will serve to reinforce the seriousness of seeking search authorizations which grant permission to overbear service-members’ constitutional protections without misleading the magistrates charged with upholding those protections.

The cost in excluding the evidence in Appellant’s case is comparatively less. Although drug abuse by servicemembers is criminal, Appellant’s case involves a single use of a controlled substance with no apparent impact on his unit or the military mission. We are also mindful of the fact Appellant had been convicted at a prior court-martial and sentenced to a punitive discharge, and the appellate review of that trial is complete, having upheld both his conviction and his sentence. His misconduct occurred during a period after his release from confinement, while he was awaiting placement on appellate leave, and during or just after a period of weeks in which he was assigned no military duties. Although this timing does not excuse Appellant’s misconduct, it places it in context and reveals it as distinctly non-aggravated, which, in turn, diminishes the costs to the justice system. Weighing this relatively low cost against the paramount importance of safeguarding servicemembers’ constitutional rights, we conclude exclusion of the results of Appellant’s urinalysis is the appropriate and just outcome.

IV. CONCLUSION

Appellant’s conviction was based solely upon the results of his urinalysis. Therefore, we cannot conclude Appellant would have been found guilty of the sole specification he was charged with in the absence of that evidence. The finding of guilty to the Charge and Specification is SET ASIDE. The sentence is SET ASIDE and the case is returned to The Judge Advocate General for remand to the convening authority. A rehearing may be ordered, or, if a re-hearing is deemed to be impractical, the Charge and Specification shall be dismissed.