Recently, the CAAF granted review of United States v. Garcia. Below is a summary of the AFCCA's opinion and my view on whether the ruling is correct.
Appellee was charged with sexual assault. He successfully moved to suppress evidence obtained from two searches that the military judge found unconstitutional. The Government appealed those rulings to the AFCCA, arguing abuse of discretion. In a unanimous opinion, the AFCCA reversed and remanded for trial with the evidence.
I. There Was Sufficient Probable Cause to Support the First Search
The military judge ruled that the first searched lacked probable cause. In particular, the military judge found that (1) a special agent intentionally omitted statements from the alleged victim when reporting to Appellee’s commander; and (2) if the statements were included, then there would not have been probable cause to support a warrant.
The AFCCA disagreed. Since great deference is given to probable cause determinations, the AFCCA held that (1) the information provided by the special agent provided sufficient probable cause; and (2) assuming that the agent intentionally omitted statements, there still was probable cause without them.
II. The Second Search was Supported by Independent Information
The military judge reasoned that the second search was derivative of the first search, making it fruit of the poisonous tree. Specifically, the military judge found that the Government relied on unlawfully-obtained evidence taken from the alleged victim’s body during the first search to establish probable cause for the second search.
In holding otherwise, the AFCCA first observed that the fruit of the poisonous tree doctrine applies only if there is no independent, lawful ground for admitting the tainted evidence. The AFCCA then determined that the independent source doctrine applied and the second search was therefore attenuated because (1) the first search was suppressed; (2) the special agent’s misrepresentations were not in fact used in the second search; and (3) Appellee’s commander was not involved in the second search.
With respect to the first search, I believe the AFCCA erroneously concluded that the omissions made by the special agent were immaterial under Mil. R. Evid. 311. To prove that a search was authorized due to false statements or omissions, the Appellee must demonstrate that “the omissions were both intentional or reckless, and that their hypothetical inclusion would have prevented a finding of probable cause.” The record indicates that the special agent admitted that she was incorrect when relaying information to Appellee’s commander. Specially, (1) the alleged victim was uncertain whether she or the Appellee were dressed and (2) uncertain whether she was penetrated, even though the special agent indicated that the alleged victim was certain. This proves that the omissions were intentional. Moreover, whether the parties were clothed and whether the alleged victim was penetrated are material to sexual assault. Absent any degree of certainty, the alleged victim’s allegation might not rise to the level of probable cause.
However, I do believe that the independent source doctrine justifies the second search. During their initial investigation, the Government found DNA evidence in alleged victim that belonged to the SrA CG, who was present that night, and “an unidentified man.” Because Appellee was the only other man present in the alleged victim’s apartment that night, and he showed a sexual interest in her, it is probable that the DNA belonged to him. This evidence, without the special agent’s omissions, independently supports probable cause and justifies a search of Appellee to get his DNA.
United States v. Garcia Decision
 Judge Posch authored the majority opinion, which was joined by Judges J. Johnson and Key.