On December 9, 2020, CAAF issued their opinion in United States v. Garcia. The focal point of CAAF’s opinion, is not their decision to affirm the AFCCA’s ruling, rather it is their scathing reprimand of the Government’s conduct. The Court opens with the following:
“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, or to make material omissions ‘that are de-signed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate.’… And yet, the Governments troubling conduct in the instant case compels this Court to underscore this essential point from the outset of this opinion”
Garcia opinion here.
In United States v. Garcia, Appellant challenges the AFCCA’s findings that the military judge abused their discretion when they suppressed evidence from being used against him. Appellant argues that the military judge did not abuse her discretion when she found that the special agent’s affidavit for a search authorization omitted certain facts, extinguishing probable cause, and that the military judge correctly found that there was not an independent source for Appellant’s second DNA collection.
These arguments were ultimately unsuccessful because CAAF found that the military judge applied a heightened, and incorrect, standard for determining if probable cause existed, and that there was in fact an independent source for Appellant’s second DNA test.
Before finding that the military judge was incorrect in their determination that probable cause was extinguished by the special agent’s omission of facts in the affidavit, CAAF first determined if probable cause existed. Easily, CAAF found probable cause. Next, CAAF examined whether the special agent’s omissions extinguished probable cause.Given the facts in the affidavit, CAAF found that there was probable cause to conduct a second DNA collection from Appellant. Specifically, CAAF noted that the trial judge's four cited omitted pieces of evidence did not individually, or cumulatively, extinguish probable cause in the affidavit.
CAAF, finding that probable cause was not extinguished by the the special agent’s omissions then turned to whether an independent source existed for Appellant’s second DNA collection. Appellant’s first DNA collection was collected on a factually incorrect affidavit and was therefore suppressed by the trial judge. At CAAF, Appellant argued that the government’s second DNA collection “was prompted by the information gathered during the prior illegal search and [was] only a result of having that search suppressed.” However, CAAF disagreed, finding that the trial judge’s decision to suppress the second DNA collection because it lacked an independent source was incorrect, and a misapprehension of law. CAAF, in correcting the military judge’s ruling, noted that “the only true poisonous fruit is evidence that was gathered as a result of the unlawful search,” and that the first DNA collection was the poisonous fruit, nothing else.
CAAF reached these legal results with little ease but did not mince words about government’s conduct. This troubling conduct started with a factually inaccurate verbal search authorization by special agent RB, but did not end there, it continued when an AF JA instructed special agent RB that the written affidavit should reflect their inaccurate verbal search authorization. In short, this led to special agent RB submitting and attesting to an affidavit that they knew to be false. Even though CAAF decided that the military judge did abuse their discretion in suppressing the evidence, CAAF categorized the judge’s decision to suppress as a: “well intentioned goal of seeking to hold the Government accountable for its improper actions.”
The following facts were part of the special agent’s affidavit: Appellant knew that A1C JL was drinking heavily on the night in question; Appellant signaled to another airman that he was interested in having a threesome” with A1C JL that evening; while the other airman was in a different room, Appellant went into the spare bedroom where A1C JL was sleeping; despite the fact that it was his quarters and he presumably had his own bed in a different room, Appellant got into bed with A1C JL; when A1C JL awakened, she discovered that Appellant was not just lying beside her but rather was on top of” her; Appellant s later explanation for this scenario was that he simply was looking for some shorts in this spare bedroom; Appellant woke up A1C JL between 3 :00 and 4:00 in the morning and was adamant that she needed to take a shower, and he was standing in the bathroom with a naked A1C JL insisting that she do so; and Appellant got really mad ” at A1C JL s refusal to take a shower shower8 and his later explanation for his re action was merely that A1C JL had spilled beer on herself a nd he wanted her to wash it off. And finally, t he lab employee s affidavit indicated that the DNA from A1C JL s vaginal swabs included male DNA from two contributors, not just from the third airman in Appellant’s apartment.
Elizabeth M. Berecin
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