The AFCCA set aside Airman Basic Robert J. Hernandez's findings of guilt and sentence, remanding his case to the convening authority for a rehearing or a dismissal.
Hernandez opinion here
Appellant was convicted by a military judge sitting as a general court-martial of one specification of wrongful use of cocaine in violation of Article 112a, UCMJ. The military judge sentenced Appellant to a dishonorable discharge and confinement for 60 days, which was approved by the convening authority.
Appellant first argued that the military judge erred when he denied Appellant’s motion to suppress the results of the urinalysis because the military magistrate lacked sufficient evidence to amount to probable cause to authorize the seizure and subsequent search of Appellant’s urine. Appellant argued also that his sentence of a dishonorable discharge was disproportionate to the offense of a single use of cocaine.
The AFCCA reviewed whether the search authorization was grounded in probable cause under an abuse of discretion standard. The AFCCA stated that the Fourth Amendment to the United States Constitution applies to servicemembers when there is a reasonable expectation of privacy, which extends to the collection of urine samples at the time of seizure as well as at the laboratory.
The AFCCA reiterated that a search is presumptively reasonable when a search authorization or a warrant is granted by an independent judicial magistrate grounded in probable cause that is based on a reasonable belief that the person, property, or evidence sought is located in the place to be searched. Mil. R. Evid. 315(f). The exclusionary rule (Mil. R. Evid. 311(a)) requires that evidence seized illegally, such as for lack of probable cause, must be excluded unless an exception applies.
The Court stated also that the good faith exception applies when: (1) the search or seizure executed was based on an authorization issued by a competent authority; (2) the individual issuing the authorization had a substantial basis for determining the existence of probable cause; and (3) the person seeking and executing the authorization reasonably and with good faith relied on the issuance of the authorization.
Appellant returned from incarceration for a cocaine-related conviction to his Air Force base. Another military member entered the dormitory building where Appellant lived and smelled marijuana. An investigation began, which included the use of a military working dog trained to detect five drugs as well as residual odors, including marijuana and cocaine. Appellant consented to a room search and nothing was found. He consented also to a search of his person and backpack, and again nothing was found. When the dog left Appellant’s room, he sat down in front of Appellant and apparently stared at him. Appellant did not appear to be under the influence of a controlled substance at the time.
A day later, investigators requested that a military magistrate authorize the collection of a urine sample from Appellant. The affidavit presented to the magistrate included certain information, including that on the day in question a witness smelled marijuana; that the military dog twice alerted when he passed by Appellant and twice sat down in front of him; and the fact that Appellant had a prior drug conviction and term of incarceration. The affidavit did not include, however, that a week earlier, and before Appellant moved back into the building, a witness reported smelling marijuana; that the whole building, and not just the floor that Appellant lived on, smelled of marijuana; and that military working dogs cannot detect drugs in a person’s body.
The AFCCA held that, viewing the evidence in the light most favorable to the Government, there was probable cause to believe that Appellant had drugs or the residual odor of drugs on or near him. But there was no probable cause to believe that Appellant had ingested drugs. The search of Appellant’s urine was therefore conducted in violation of the Fourth Amendment. Because the AFCCA held that the affidavit presented to the magistrate was prepared with reckless disregard for the truth when characterizing the facts and circumstances of the investigation, the good faith exception did not apply. The AFFCA therefore held that the military judge erred by not excluding the urinalysis evidence.
Manual for Courts-Martial, United States (2016) ed.).
Because the AFCCA held the military judge erred in denying the suppression of the urinalysis, the second issue was not addressed.