Court-Martial Trial Practice Blog
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): [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, 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.
As Monty Python might say: Never Mind.