The military trial judge erred in concluding that the search authorization required AFOSI complete information to determine probable cause for defendant’s DNA in a sex assault case. It’s not. Just because there were differing versions of how dressed the victim was when she woke up doesn’t make the authorization without probable cause. After the first DNA search was [erroneously] suppressed, the independent source doctrine permitted a second search authorization with more information backing it up. United States v. Garcia, 2020 CAAF LEXIS 706 (C.A.A.F. Dec. 9, 2020):
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, Franks v. Delaware, 438 U.S. 154, 155 (1978), or to make material omissions “that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate,” United States v. Mason, 59 M.J. 416, 422 (C.A.A.F. 2004) (emphasis omitted) (internal quotation marks omitted) (quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). This proposition should be self-evident. And yet, the Government’s troubling conduct in the instant case compels this Court to underscore this essential point from the outset of this opinion.
In this Article 62, Uniform Code of Military Justice (UCMJ), case, the Government has charged Appellant at a general court-martial with one specification of sexual assault of Airman First Class (A1C) JL, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2018). As explained in detail below, the trial judge on two separate occasions suppressed DNA evidence linking Appellant to this sexual assault. The Government appealed the trial judge’s second suppression ruling to the United States Air Force Court of Criminal Appeals (AFCCA) pursuant to the provisions of Article 62, UCMJ. The lower court reversed the trial judge’s ruling, holding that she had abused her discretion in suppressing the evidence. We granted review on the following issue: “Whether the Air Force Court of Criminal Appeals erred in finding that the [trial] judge abused her discretion in suppressing evidence obtained as a result of a search and seizure of Appellant’s DNA.” United States v. Garcia, 80 M.J. 278 (C.A.A.F. 2020) (order granting review). Despite the Government’s improper conduct in this case, we hold that the trial judge did abuse her discretion in suppressing the evidence from the second search and we therefore affirm the decision of the AFCCA.