Several new CAAF opinions

United States v. Cowgill.


The two underlying point were: potential erroneous information given for a search warrant (statements were factually incorrect, but believed to be true by the detective at the time), and if there was erroneous information, was there enough probable cause without the erroneous information.

[T]he military judge concluded there was no evidence that the detective “made these statements with reckless disregard for the truth.” Finally, the military judge concluded that “Despite the erroneous information mistakenly provided to the Judge, there still remained a substantial basis for determining the existence of probable cause.”

Judge Baker wrote the opinion, with Judge Stucky concurring in the result and Judges Erdmann and Chief Judge Effron, concurring in part and dissenting in part.

The circumstances of this case do not fit neatly into an existing case law rubric involving either omissions or assertions. The detective did not withhold knowledge about the
roommate’s urinalysis nor is there reason to believe he had serious doubts about what he said about the urinalysis. Indeed, the record reflects that he acted in good faith. The concern in
this case is procedural. The question is whether the detective was merely negligent or reckless in not doing more to confirm the affidavit facts in this specific context.

Judge Baker made a, “determination that the information in question was provided recklessly [as] a fact-specific holding.”  Slip op. at 13.  The next question being what impact if any that had on the validity of the warrant.

[W]e agree with the military judge’s statement that the affidavit “could undoubtedly have
been more detailed, with additional information about the reliable source and information unquestionably should have been confirmed between the OSI and Det Kraus [sic].” At the same time, based on the totality of the circumstances, we conclude that the military judge did not abuse her discretion in admitting the evidence seized from Appellant’s home.

Judge Stucky disagreed with the recklessness finding of the court’s opinion.

Judge Erdmann writing for himself and Chief Judge Effron concurred that the information was provided recklessly, but disagreed that sufficient probable cause remained after removing the false information.

United States v. Anderson.

Dwight Sullivan comments on this case at CAAFLog.  Along with Dwight I testified at the Cox Commission.  I was there on behalf of the Military Law Committee, Bar Association of the District of Columbia.  Interestingly, when Dwight and I showed up at the hearing we had both independently picked the “expert” issue as our main focus.

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