United States v. Carter

                          UNITED STATES, Appellee

                                          v.

                     Lewis T. CARTER, Jr., Captain
                          U.S. Army, Appellant


                                   No. 00-0314


                           Crim. App. No. 9701744



       United States Court of Appeals for the Armed Forces

                          Argued October 12, 2000

                           Decided March 28, 2001

       GIERKE, J., delivered the opinion of the Court, in
    which CRAWFORD, C.J., and EFFRON and BAKER, JJ., joined.
    SULLIVAN, J., filed an opinion concurring in the result.

                                      Counsel
For Appellant: Captain Kevin J. Mikolashek (argued); Colonel
   Adele H. Odegard and Major Jonathan F. Potter (on brief);
   Lieutenant Colonel David A. Mayfield and Captain David S.
   Hurt.

For Appellee: Captain Steven D. Bryant (argued); Lieutenant
   Colonel Edith M. Rob and Captain Daniel Brookhart (on brief);
   Colonel David L. Hayden and Captain Katherine M. Kane.

Military Judge:     Keith H. Hodges


          THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Carter, No. 00-0314/AR


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial convicted appellant, contrary to his

pleas, of housebreaking and conduct unbecoming an officer, in

violation of Articles 130 and 133, Uniform Code of Military

Justice, 

10 USC §§ 930

 and 933, respectively.       The adjudged and

approved sentence provides for a dismissal, confinement for 5

years, and total forfeitures.        Pursuant to Article 58b(b), UCMJ,

10 USC § 858b(b), the convening authority waived the total

forfeitures for 6 months.       The Court of Criminal Appeals affirmed

the findings and sentence without opinion.

      This Court granted review of the following issue:

      WHETHER THE MILITARY JUDGE ERRED AS A MATTER OF LAW WHEN HE
      DENIED THE DEFENSE MOTION TO SUPPRESS BLOOD SEIZED FROM
      APPELLANT, AND THE DERIVATIVE EVIDENCE FROM APPELLANT’S
      BLOOD, WHERE THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO
      THE MILITARY MAGISTRATE TO ESTABLISH PROBABLE CAUSE TO SEIZE
      APPELLANT’S BLOOD.

For the reasons set out below, we affirm the decision of the

Court of Criminal Appeals.

                          I. Factual Background
      Appellant was convicted of housebreaking by unlawfully
entering the tent of a sleeping female officer, with intent to

indecently assault her, and conduct unbecoming an officer by

exposing his penis, masturbating, and ejaculating onto the

sleeping female officer.       Appellant was identified as the

perpetrator of the offenses by comparing the deoxyribonucleic

acid (DNA) from the semen on the female officer’s shirt to

appellant’s DNA, which was obtained by taking a sample of his

blood.   The seizure of appellant’s blood was pursuant to a search

authorization issued by Lieutenant Colonel (LTC) Willis Hunter, a



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United States v. Carter, No. 00-0314/AR


Judge Advocate General’s Corps officer assigned as a military

magistrate.    The granted issue challenges LTC Hunter’s

determination that there was probable cause to issue the search

authorization.

      At trial, the issue was timely raised by a motion to

suppress the evidence obtained from appellant’s blood sample.

During the hearing on the motion, LTC Hunter testified that the

request for a search authorization was supported by an affidavit

from U.S. Army Criminal Investigation Command (CID) Special Agent

(SA) Voos that outlined the results of an investigation by SA

Hazell.   SA Voos was stationed at Fort Hood, Texas.      He did not

personally conduct the investigation, but instead was relaying

the results of SA Hazell’s investigation, which was conducted in

Kuwait where the offenses occurred.       Appellant’s parent unit was

at Fort Hood, and this case was tried at Fort Hood.

      The affidavit related that at about 7:56 a.m. on September

25, 1996, First Lieutenant (1LT) CV notified Military Police

Sergeant (SGT) Stone that at about 4:25 a.m. on that morning, she

was awakened and felt what appeared to be water dripping on her

face.   She realized that an unidentified man was above her, with

his knees against her upper torso and his crotch toward her face.

She got up from her cot and chased the unidentified male,

shouting at him to stop.       Two unit guards, Private First Class

(PFC) Vanhoozer and PFC Haywood, chased the unidentified male but

could not catch him.

      Both PFC Vanhoozer and PFC Haywood told SA Hazell that they

were on guard duty between 3:00 a.m. and 5:00 a.m. and that they

heard a female voice shouting, “Stop, come back here!” or “Stop


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and come here!”     They immediately began chasing a tall black

male, who was wearing a battle dress uniform (BDU) but no load-

bearing equipment (LBE) or headgear.       Both guards described the

unidentified male as a fast runner, and they were unable to catch

him.

       1LT CV stopped running and wiped from her face a fluid

substance that she believed to be semen.       She wiped one of her

hands on her shirt and the other on the ground.       1LT CV was

unable to provide any identifying information about the

individual other than describing him as a male of medium height.

       Sergeant First Class (SFC) Gaskins, a female noncommissioned

officer (NCO) who shared the tent with 1LT CV, told SA Hazell

that appellant came to the tent about 10:00 p.m. on September 24,

1996, looking for 1LT CV.       Appellant told SFC Gaskins that he had

a request for a linguist support mission for September 25.         1LT

CV was asleep, and SFC Gaskins told appellant that she would give

her the message.

       Captain (CPT) Harris told SA Hazell that he was outside his

tent at about 4:00 a.m. on September 25 and observed a tall,

slender, black male, dressed in BDUs, with no LBE or protective

mask, run past him with two unit guards in pursuit.       CPT Harris

stopped the two guards, and they informed him that 1LT CV had

been assaulted and that they were pursuing the individual who ran

away from her tent.

       CPT Creech told SA Hazell that at around 4:45 a.m. on

September 25, he heard a female voice screaming, “Come back

here!” and he heard people running.       He observed 1LT CV in a

physical training shirt and shorts, without shoes or socks, and


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United States v. Carter, No. 00-0314/AR


she told him what had happened in her tent.       CPT Creech went to

the tactical operations center (TOC) and asked for appellant, who

was on duty as the Battle Captain.        No one in the TOC knew where

appellant was.     CPT Creech stated that “some time later,”

appellant entered the TOC, dressed in BDUs with no protective

mask, LBE, or headgear.       Appellant appeared to be perspiring and

appeared nervous or “fidgety.”        When SA Hazell reinterviewed CPT

Creech, he said that when appellant returned to the TOC, he was

wearing BDUs and black boots and that he had his protective mask.

      Staff Sergeant (SSG) Clark told SA Hazell that he was on

duty as the Battle NCO between 3:00 a.m. and 5:00 a.m. on

September 25.     SSG Clark said that when CPT Creech reported the

incident involving 1LT CV, he did not know where appellant was.

SSG Clark said that when appellant returned to the tent, he

assisted the unit guards in making their statements.

      1LT Schultze told SA Hazell that he heard something moving

outside his tent at about 4:40 a.m. on September 25.       It sounded

like someone had tripped over a tent rope or pole.       He looked

outside and saw a “dark skinned soldier,” dressed in BDUs,

scrambling to get up.      He did not see the soldier’s face.

      SFC Holden told SA Hazell that he was the NCO in charge of

the TOC during duty hours and worked closely with appellant.         He

said that since the incident involving 1LT CV, appellant’s

demeanor changed and he was “extremely nervous, acting at times

as if he were in a daze.”       SFC Holden observed appellant’s hands

after the incident and noticed that his palms appeared to be red.

When he was reinterviewed, SFC Holden said that appellant showed




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him both of his hands a few days after the incident and that the

insides of his hands were red.

      Major (MAJ) Cloy told SA Hazell that he asked appellant to

show him his hands.      MAJ Cloy noticed that appellant appeared

nervous and that his right hand appeared red and dry.

      SGT Sims told SA Hazell that appellant returned to the TOC

about 20 minutes after CPT Creech came looking for him.          He said

that appellant appeared tired and nervous, and that his demeanor

had changed since the incident.           When SA Hazell reinterviewed SGT

Sims, SGT Sims said that appellant returned to the TOC wearing

BDUs, with no LBE or weapon.

      The affidavit recites that appellant was advised of his

rights and interviewed by SA Hazell.          Appellant denied committing

the offense.    He declined to provide samples of his blood,

saliva, or hair, and he stated that he wanted to consult with his

civilian attorney in Texas.

      SA Voos stated in the affidavit that appellant is a black

male, 68 inches tall, with black hair, brown eyes, and a slim

build.    He stated that the field site where the incident occurred

was a controlled area patrolled by unit guards.          Finally, he

stated that semen stains were found on 1LT CV’s shirt.

      LTC Hunter testified that the affidavit did not have as much

detail as he would normally expect a criminal investigator to

have, so he asked additional questions.          He tried to pin down

whether the perpetrator could have come from outside the unit

area.    He determined after discussion with SA Voos that the unit

was a military intelligence unit, and that the area was a secure




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United States v. Carter, No. 00-0314/AR


area protected by perimeter guards.        He concluded that it was

highly unlikely the perpetrator was someone outside the unit.

      On cross-examination, LTC Hunter testified that some of his

questions arose because the affidavit was not “well laid out.”

On examination by the military judge, LTC Hunter testified that

he asked SA Voos how many soldiers were in the unit and how many

were black males.     SA Voos was unable to provide the information.

LTC Hunter testified that he knew from his military experience

that the unit was “a company size unit,” and he concluded that

there were “approximately 100-150 people” in the unit.        He

testified that he also knew from his experience that a soldier

would not be deployed to a field location in Kuwait without LBE,

kevlar helmet, and protective mask.        Finally, he knew that, as

Battle Captain, appellant would have been “the official who was

running the Tactical Operation Center at that time period.”

      SA Voos requested authorization to obtain blood samples,

pubic hairs, and head hairs.        Based on the affidavit and his

conversation with the CID agents, LTC Hunter issued the search

authorization, but he modified it to authorize seizure only of a

blood sample, not head and pubic hair.        SA Meyer, a member of the

Fort Hood CID office, took the search authorization to Darnall

Army Community Hospital at Fort Hood, where he asked a medical

technician to take a blood sample from appellant.        SA Meyer

observed the blood being drawn from appellant, took custody of

the vials of blood, and secured them as evidence.

      None of the facts asserted in the affidavit were disputed at

trial.   The dispute was whether the facts presented to LTC Hunter

constituted probable cause to take a blood sample from appellant.


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United States v. Carter, No. 00-0314/AR


      The military judge denied the motion to suppress.        He stated

on the record that he thought the probable cause issue was a

close call.    He also found that the search authorization was

executed in good faith.       He concluded that, even if the

magistrate did not have probable cause, he “certainly had a

substantial basis to believe [there] was probable cause.”        The

military judge specifically noted that SA Voos did not withhold

any information.     He presented inculpatory as well as exculpatory

information.    He did not attempt to resolve conflicts in the

evidence.    Instead, he simply presented the conflicting evidence.

      Before this Court, appellant asserts that the evidence was

insufficient to establish probable cause.        He asserts that the

magistrate failed to narrow the pool of possible suspects.        He

points out that the magistrate concluded the incident occurred at

a field site of a military intelligence unit, when in fact

appellant and most of the witnesses were assigned to Headquarters

and Headquarters Company, 3d Brigade, 1st Cavalry Division.        Two

witnesses were assigned to the 8th Engineer Battalion, and one to

the 545th Military Police Company.        The witnesses’ units all were
reflected in SA Voos’s affidavit.         He argues that the magistrate

erred by making his own conclusions that the unit at the field

site was a military intelligence unit of approximately 100-150

soldiers, instead of requiring CID to find out how many black

males were in the unit at the field site at the time in question.

      Appellant also asserts that the warrant was defective

because significant questions regarding the chain of custody and

true owner of the semen-stained shirt were not brought to the

magistrate’s attention.       Appellant concedes that SA Voos may not


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United States v. Carter, No. 00-0314/AR


have known about the chain of custody problems when he submitted

the affidavit to LTC Hunter.

      Finally, appellant asserts that the CID agents did not act

in good faith in executing the warrant because the “bare bones”

affidavit provided by SA Voos did not provide a substantial basis

to determine that probable cause existed.         Appellant concedes

that the first prong of Mil. R. Evid. 311(b)(3), Manual for

Courts-Martial, United States (1995 ed.),1 is met, but asserts

that the second and third prongs are not met. Id.
      The Government argues that the affidavit supplied more than

enough information to provide a substantial basis for a probable

cause determination.      The Government further argues that, even if

the search authorization was defective, the good-faith exception

applies to this case.

                              II.   Discussion

                            A.   Probable Cause

      Nonconsensual extraction of blood from an individual may be

made pursuant to a valid search authorization, supported by

probable cause.     Mil.R.Evid. 312(d); see generally Schmerber v.
California, 

384 U.S. 757, 769-70

 (1966); United States v. Bush,

47 MJ 305

 (1997); United States v. Fitten, 

42 MJ 179

 (1995);
United States v. Bullock, 

71 F.3d 171

 (5th Cir. 1995).

      Mil.R.Evid. 315(f)(2) provides:

            Probable cause to search exists when there is a
            reasonable belief that the person, property, or
            evidence sought is located in the place or on the
            person to be search [sic].
1
  All Manual provisions are cited to the version applicable at
trial. The current version is unchanged unless otherwise
indicated.



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United States v. Carter, No. 00-0314/AR



This rule has no counterpart in the Federal Rules of Evidence.

      In Illinois v. Gates, 

462 U.S. 213, 238

 (1983), the Supreme

Court abandoned the two-pronged test established by Aguilar v.

Texas, 

378 U.S. 108

 (1964), and Spinelli v. United States, 

393 U.S. 410

 (1969), for determining whether probable cause exists.

In its place, Gates promulgated a less rigid rule:

            [W]e conclude that it is wiser to abandon the “two-
            pronged test” established by our decisions in Aguilar
            and Spinelli. In its place we reaffirm the totality-
            of-the-circumstances analysis that traditionally has
            informed probable-cause determinations . . . . The task
            of the issuing magistrate is simply to make a
            practical, common-sense decision whether, given all the
            circumstances set forth in the affidavit before him,
            including the “veracity” and “basis of knowledge” of
            persons supplying hearsay information, there is a fair
            probability that contraband or evidence of a crime will
            be found in a particular place.

462 U.S. at 238

 (footnote and citations omitted).

      “[P]robable cause deals 'with probabilities.        These are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act[.]'"      

Id.

 at 241 (quoting Brinegar v. United
States, 

338 U.S. 160, 175

 (1949)).         "[O]nly the probability, and
not a prima facie showing, of criminal activity is the standard

of probable cause."      

Id.

 at 235 (quoting Spinelli, 

393 U.S. at 419

).

      A military judge's decision to admit or exclude evidence is

reviewed for abuse of discretion.          United States v. Owens, 

51 MJ 204, 209

 (1999).     In reviewing probable cause determinations,

courts must look at the information made known to the authorizing

official at the time of his decision.         United States v.

Cunningham, 

11 MJ 242, 243

 (CMA 1981).         The evidence must be


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United States v. Carter, No. 00-0314/AR


considered in the light most favorable to the prevailing party.

United States v. Reister, 

44 MJ 409, 413

 (1996).

      Gates set out a specific standard of review for probable

cause determinations:      “[T]he duty of a reviewing court is simply

to ensure that the magistrate had a ‘substantial basis for . . .

conclud[ing]’ that probable cause existed.”      

462 U.S. at 238

-39

(quoting Jones v. United States, 

362 U.S. 257, 271

 (1960)); see

also United States v. Monroe, 

52 MJ 326, 331

 (2000).       “In

reviewing a decision that there was probable cause for a search,

we must keep in mind that 'a determination of probable cause by a

neutral and detached magistrate is entitled to substantial

deference.'"    United States v. Maxwell, 

45 MJ 406, 423

(1996)(quoting United States v. Oloyede, 

982 F.2d 133, 138

 (4th

Cir. 1993) (citing United States v. Ventresca, 

380 U.S. 102

(1965)).

       “[R]esolution of doubtful or marginal cases . . . should be

largely determined by the preference . . . [for] warrants . . . .

[C]lose calls will be resolved in favor of sustaining the

magistrate’s decision.”       

Monroe, supra

 (quoting 

Maxwell, supra).

“‘A grudging or negative attitude by reviewing courts towards

warrants,’. . . is inconsistent with the Fourth Amendment’s

strong preference for searches conducted pursuant to a warrant;

‘courts should not invalidate warrant[s] by interpreting

affidavit[s] in a hypertechnical, rather than a commonsense,

manner.’” Gates, 

462 U.S. at 236

 (quoting 

Ventresca, supra at 108-09

).

      In United States v. Leon, 

468 U.S. 897

 (1984), the Supreme

Court reviewed the principles underlying appellate deference to a


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United States v. Carter, No. 00-0314/AR


magistrate’s determination of probable cause.        The Court

reiterated its “strong preference for warrants” and declared that

“in a doubtful or marginal case a search under a warrant may be

sustainable where without one it would fall.”        

Id.

 at 914

(quoting 

Ventresca, supra at 106

).         The Court recognized that

“[r]easonable minds frequently may differ on the question whether

a particular affidavit establishes probable cause, and we have

thus concluded that the preference for warrants is most

appropriately effectuated by according ‘great deference’ to a

magistrate’s determination.”        

Id.

 (citing 

Spinelli, supra at 419

).    The Court set out three exceptions, however, to this

“great deference”:

      First, “the deference accorded to a magistrate’s finding of

probable cause does not preclude inquiry into the knowing or

reckless falsity of the affidavit on which that determination was

based.    Franks v. Delaware, 

438 U.S. 154

 (1978).”

      Second, the magistrate must “perform his ‘neutral and

detached’ function and not serve merely as a rubber stamp for the

police.    Aguilar v. 

Texas, supra, at 111

.”
      “Third, reviewing courts will not defer to a warrant based

on an affidavit that does not ‘provide the magistrate with a

substantial basis for determining the existence of probable

cause.’    Illinois v. Gates, 

462 U.S., at 239

."      The magistrate’s

determination “cannot be a mere ratification of the bare

conclusions of others.”       Id. at 914-15.

      Applying the foregoing principles, we are reluctant to

overturn the ruling of the military judge and the decision of the

court below.    However, we need not and do not decide if the


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United States v. Carter, No. 00-0314/AR


military judge abused his discretion by concluding that LTC

Hunter had a substantial basis for finding probable cause,

because we are satisfied that the search authorization was

executed in good faith.

                              B.   Good Faith

      In Leon, the Supreme Court recognized, for the first time,

the “good faith” exception to the exclusionary rule in cases

where the official executing the warrant relied on the

magistrate’s probable cause determination and the technical

sufficiency of the warrant, and that reliance was “objectively

reasonable.”    

468 U.S. at 922

.      The Court also listed four

circumstances where the “good faith” exception would not apply:

      (1) False or reckless affidavit--Where the magistrate “was
misled by information in an affidavit that the affiant knew was

false or would have known was false except for his reckless

disregard of the truth”;

      (2) Lack of judicial review--Where the magistrate “wholly

abandoned his judicial role” or was a mere rubber stamp for the

police;
      (3) Facially deficient affidavit--Where the warrant was

based on an affidavit “so lacking in indicia of probable cause as

to render official belief in its existence entirely

unreasonable”; and

      (4) Facially deficient warrant--Where the warrant is “so

facially deficient -- i.e., in failing to particularize the place

to be searched or the things to be seized -- that the executing

officers cannot reasonably presume it to be valid.        Cf.




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United States v. Carter, No. 00-0314/AR


Massachusetts v. Sheppard [

468 U.S. 981

 (1984)] at 988-991.”        468

U.S. at 923.

      In Sheppard, decided on the same day as Leon, the Supreme

Court applied the good faith exception to a situation where a

warrant authorized a search for controlled substances, but the

supporting affidavit requested authority to search for evidence

of a homicide: a bottle of liquor, two bags of marijuana,

clothing, wire, rope, a blunt instrument, and any items

containing the victim’s fingerprints.        The error occurred when

the police attempted to modify a pre-printed warrant form

designed for drug cases.       The warrant was requested on a Sunday,

when the local courthouse was closed.        The police officer made a

number of modifications to the form, but he neglected to delete

the reference to “controlled substance” on the warrant form

itself.    The judge reviewed the officer’s affidavit and said he

would authorize the search.       The judge unsuccessfully attempted

to obtain a more suitable form for the warrant, and then made

further modifications on the warrant form prepared by the police

officer.    The judge gave the police officer the modified warrant

form and told him it was sufficient authority in form and content

to carry out the search that he had requested.

      Even though the warrant on its face still authorized a

search for controlled substances instead of the items listed in

the supporting affidavit, the Supreme Court applied the good

faith exception to uphold the search, concluding that “a

reasonable police officer would have concluded . . . that the

warrant authorized a search for the materials outlined in the

affidavit.”    468 U.S. at 989.      The Court reasoned that


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United States v. Carter, No. 00-0314/AR


“[s]uppressing evidence because the judge failed to make all the

necessary clerical corrections despite his assurances that such

changes would be made will not serve the deterrent function that

the exclusionary rule was designed to achieve.”      Id. at 990-91.

      The good faith exception is contained in Mil. R. Evid.

311(b)(3), which provides as follows:

            Evidence that was obtained as a result of an unlawful
            search or seizure may be used if:

                 (A) The search or seizure resulted from an
            authorization to search, seize or apprehend issued by
            an individual competent to issue the authorization
            under Mil. R. Evid. 315(d) or from a search warrant or
            arrest warrant issued by competent civilian authority;

                 (B) The individual issuing the authorization or
            warrant had a substantial basis for determining the
            existence of probable cause; and

                 (C) The officials seeking and executing the
            authorization or warrant reasonably and with good faith
            relied on the issuance of the authorization or warrant.
            Good faith shall be determined on an objective
            standard.

      The drafters of Mil. R. Evid. 311(b)(3) intended “to

incorporate the ‘good faith’ exception to the exclusionary rule

based on United States v. Leon . . . and Massachusetts v.
Sheppard . . . .”     Drafters’ Analysis of Mil. R. Evid. 311(b)(3),

Manual, supra at A22-18.       Of course, the intent of the drafters

is not necessarily the intent of the President.      However, the

parties do not assert that the President had a contrary intent

with respect to this rule, and we have discovered nothing

suggesting that the President’s intent in promulgating Mil. R.

Evid. 311(b)(3) was different from the drafters’ intent.

      The phrase “substantial basis for determining the existence

of probable cause,” which is listed as the second prong of the



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United States v. Carter, No. 00-0314/AR


good faith exception in Mil. R. Evid. 311(b)(3)(B), does not

appear in Sheppard.      It appears in Leon, but only in the

discussion of the Gates test regarding a trial court’s deference

to the magistrate’s determination of probable cause; it does not

appear in the discussion of the good faith exception.

      In Monroe, this Court upheld a magistrate’s determination of

probable cause to search.       As an alternate holding, we held that

the evidence that was seized would be admissible under the good

faith exception, even if the magistrate’s “probable cause

determination had lacked a substantial basis[.]”        

52 MJ at 332

.

We specifically cited Leon in support of this holding, but we
also referred to Mil. R. Evid. 311(b)(3) in a footnote.        Because

Mil. R. Evid. 311(b)(3)(B) requires a “substantial basis for

determining the existence of probable cause” as an element of the

good faith exception, the alternate holding in Monroe raises two

questions:2 (1) Did Monroe correctly apply the good faith

exception? and (2) Does Mil. R. Evid. 311(b)(3) establish a more

stringent rule for applying the good faith exception in the

military than Leon does for civilian courts?
      We answer the first question in the affirmative: Monroe

correctly applied the good faith exception as defined in Leon and

Sheppard, the two decisions referenced in the Drafters’ Analysis

of Mil. R. Evid. 311(b)(3).       This Court observed in Monroe that

“there is no suggestion on the record that [the official

executing the warrant] acted with anything less than objective


2
  We raise these issues sua sponte.        They were not specifically
argued by appellant.



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United States v. Carter, No. 00-0314/AR


good faith in seeking and executing the search authorization.”

52 MJ at 332

.     Our Court then examined the four exceptions to the

good faith exception laid out in Leon and concluded that none of

them were applicable.      There was no suggestion that the affidavit

was false or reckless and no indication that the magistrate

abandoned his judicial role.        Neither the affidavit nor the

search authorization was facially deficient.          Thus, our Court

concluded that the good faith exception was applicable, even if

probable cause was lacking.

      Turning to the second question, we conclude that Mil. R.

Evid. 311(b)(3) does not establish a more stringent rule than

Leon did for civilian courts.        The first prong (a search warrant
or search authorization issued by competent authority) is

identical to the civilian rule.           The second prong addresses the

first and third exceptions noted in Leon, i.e., the affidavit

must not be intentionally or recklessly false, and it must be

more than a “bare bones” recital of conclusions.          It must contain

sufficient information to permit the individual executing the

warrant or authorization to reasonably believe that there is
probable cause.     The third prong addresses the second and fourth

exceptions in Leon, i.e., objective good faith cannot exist when

the police know that the magistrate merely “rubber stamped” their

request, or when the warrant is facially defective.

      Mil. R. Evid. 311(b)(3)(B) uses the phrase “substantial

basis” as the second element of good faith.          This terminology

raises an interpretative issue, because the same phrase is used

in Gates to describe the standard by which the magistrate’s




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United States v. Carter, No. 00-0314/AR


determination of probable cause is reviewed.3      Nevertheless, in

light of the congressional mandate in Article 36, UCMJ, 

10 USC § 836

; the drafters’ stated intent to adopt the good faith

exception as set out in Leon and Sheppard; and the absence of

evidence that the President intended to promulgate a more

stringent rule for the military, we should construe Mil. R. Evid.

311(b)(3) in a manner consistent with those decisions, if

possible.    To do otherwise would effectively abolish the good

faith exception in military practice.       Any search that failed the

Gates test for reviewing probable cause determinations (“a
‘substantial basis for . . . conclud[ing]’ that probable cause

existed”) would also fail the test for good faith in Mil. R.

Evid. 311(b)(3), because the second prong (“a substantial basis

for determining the existence of probable cause”) would not be

satisfied.    If we were to interpret the “substantial basis”

language in Mil. R. Evid. 311(b)(3)(B) as an additional

requirement beyond the requirements of Leon, the good-faith

exception would not be an exception at all, and the language

would serve no purpose.       We need not construe the rule in that
fashion.

      We conclude that the phrase “substantial basis” has

different meanings, depending on the issue involved.       When the




3
  The issue raised by the phrase “substantial basis” underscores
the risks inherent in codifying evolving constitutional issues.
We suggest that the problem might be alleviated if the rules were
written in more flexible language with respect to situations
where the President did not intend to set forth specific military
rules but, instead, intended to follow evolving civilian
practice.


                                      18
United States v. Carter, No. 00-0314/AR


issue is whether the magistrate erred by determining that

probable cause existed, Gates established “substantial basis” as

the standard for reviewing the magistrate’s probable cause

determination.     When the issue is whether the good faith

exception should be invoked, Mil. R. Evid. 311(b)(3)(B) uses

“substantial basis” to describe the absence of the first and

third exceptions to good faith outlined in Leon.     “Substantial

basis” as a standard of review examines the information

supporting the request for a search authorization through the

eyes of a judge evaluating the magistrate’s decision.     In this

context, the search authorization will be upheld if the judge

determines that the issuing magistrate had a “substantial basis”

for determining the existence of probable cause.     “Substantial

basis” as an element of good faith examines the affidavit and

search authorization through the eyes of a reasonable law

enforcement official executing the search authorization.      In this

context, the second prong of Mil. R. Evid. 311(b)(3) is satisfied

if the law enforcement official had an objectively reasonable

belief that the magistrate had a “substantial basis” for

determining the existence of probable cause.

      Thus, in Monroe, when this Court assumed arguendo that there
was no “substantial basis” for issuing a search authorization, it

assumed that the magistrate erred in concluding that there was

probable cause.     This Court did not assume or conclude that Mil.

R. Evid. 311(b)(3)(B) was not met; it concluded to the contrary

and held that, even if there was no probable cause, the good

faith exception would apply.




                                      19
United States v. Carter, No. 00-0314/AR


      Applying the foregoing analysis to this case, we hold that,

even if LTC Hunter did not have a “substantial basis” for

determining the existence of probable case, the military judge

did not abuse his discretion by denying the motion to suppress,

because all the elements of the good faith exception were

satisfied.

      There was no issue regarding LTC Hunter’s authority to issue

a search authorization.       Appellant concedes that the first prong

of Mil. R. Evid. 311(b)(3) was satisfied.

      With respect to the second prong, SA Voos supported his

request for a search authorization with a detailed and balanced

affidavit.    It went far beyond a “bare bones” affidavit.     He

identified the sources of his information, and he identified

conflicts and gaps in the evidence.        There was no evidence that

he intentionally or recklessly omitted or misstated any

information.    Once LTC Hunter approved the request for a search

authorization, SA Meyer, who executed it, was objectively

reasonable in believing that SA Voos had given LTC Hunter a

“substantial basis” for concluding that there was probable cause.

Accordingly, we conclude that the second prong of Mil. R. Evid.

311(b)(3) was satisfied.

      Finally, LTC Hunter did not rubber stamp the request.

Instead, he carefully reviewed it, asked for additional

information, and reduced the scope of the search authorization

before approving it.      Moreover, the search authorization was not

facially deficient.      Accordingly, we conclude that the third

prong of Mil. R. Evid. 311(b)(3) was satisfied.




                                      20
United States v. Carter, No. 00-0314/AR


      For all of the above reasons, we conclude that SA Meyer

executed the search authorization in good faith.   Accordingly, we

hold that the military judge did not err by denying the motion to

suppress.

                              III.   Decision

      The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                      21
United States v. Carter, 00-0314/AR



    SULLIVAN, Judge (concurring in the result):



    I write separately because I believe the military magistrate

had probable cause to issue a warrant for extraction of

appellant’s blood.   As the majority recognizes, the duty of an

appellate court in such cases is to determine whether the

magistrate issuing the warrant had a substantial basis for

finding that probable cause existed.   See United States v.

Monroe, 

52 MJ 326, 331

 (2000); see generally Illinois v. Gates,

462 U.S. 213, 238-39

 (1983).



    Here, the affidavit of SA Voos, along with his answers to

the magistrate’s questions, established the following historical

facts amounting to substantial evidence of probable cause.    A

tall, slender, black male, wearing BDUs, with no LBE or

protective head gear, was seen running from the scene of the

assault.   Immediately after the crime, appellant, a black male

who is 68” in height, was noted missing from his duty station.

When appellant returned to his duty station sometime thereafter,

he appeared sweaty, nervous, and fidgety.   He was dressed in

BDUs, with no LBE or protective headgear.   Later that day,

appellant asked what punishment would apply to the perpetrator

under the UCMJ.
United States v. Carter, 00-0314/AF


    During the investigation, a lieutenant reported that he had

been awakened on the night in question by the noise of someone

tripping over a rope or stake on his tent.   When he looked

outside, he saw a dark-skinned male in BDUs getting up from the

ground.   In addition, one of appellant’s co-workers reported that

appellant had become more nervous and introverted since the

incident.    Moreover, a Major reported that appellant’s right palm

appeared red and dry.



   These facts are sufficient to prove that a substantial basis

existed for the magistrate’s finding of probable cause.    As this

Court stated in Monroe, “A deferential standard of review is

appropriate to further the Fourth Amendment’s strong preference

for searches conducted pursuant to a warrant. . . . [C]lose calls

will be resolved in favor of sustaining the magistrate’s

decision.”   

52 MJ at 331

 (citations omitted); cf. Ornelas v.

United States, 

517 U.S. 690, 699

 (1996) (applying more heightened

scrutiny to warrantless searches).



    Even if I did not believe that the magistrate in this case

had probable cause to issue the warrant, I would agree with the

majority that the good-faith exception to the probable cause

requirement would render admissible the evidence seized as a

result of the search.   See United States v. Leon, 

468 U.S. 897

(1984); Massachusetts v. Sheppard, 

468 U.S. 981

 (1984); see also



                                  2
United States v. Carter, 00-0314/AF


Mil.R.Evid. 311(b)(3).    However, the majority’s tortured

construction of Mil. R. Evid. 311(b)(3) is, in my view,

unsupported by the language of that provision.    In fact, almost

ten years ago, Judge Wiss noted the very problem facing the

majority in this case in United States v. Lopez, 

35 MJ 35

, 50 n.*

(CMA 1992) (Wiss, J., concurring in the result):



          For instance, Mil.R.Evid. 311(b)(3)(B)
          requires that, as part of the good-faith
          exception, it must be found that “[t]he
          individual issuing the authorization or
          warrant had a substantial basis for
          determining the existence of probable
          cause.” I can find no basis at all for
          this in United States v. Leon, 

468 U.S. 897

, 

104 S.Ct. 3405

, 

82 L.Ed.2d 677

          (1984). Moreover, under the majority
          opinion in United States v. Figueroa, 

35 MJ 54

 (CMA 1992), which I do not fully
          join, once it can be found on review that
          the authorizing official had a substantial
          basis for the belief that probable cause
          existed, then the finding of probable
          cause is affirmed, and usually the good-
          faith reliance on that finding would not
          then be in issue.


     Judge Cox, writing in Lopez, 

Id.

 at 45-46 n.3, suggested an

answer to this problem:



          As I read Mil.R.Evid. 313 (“Inspections
          and inventories in the armed forces”); 314
          (“Searches not requiring probable cause”);
          and 315 (“Probable cause searches”), they
          are only mirages anyway—traps for the
          unwary. Indeed Mil.R.Evid. 314(k) itself
          contains the exception that swallows these
          “rules,” stating: “A search of a type not
          otherwise included in this rule and not


                                  3
United States v. Carter, 00-0314/AF


          requiring probable cause under Mil.R.Evid.
          315 may be conducted when permissible
          under the Constitution of the United
          States as applied to members of the armed
          forces.”

            In other words, unless we are to ignore
          plain meaning, if the “search” does not
          make it as a Mil.R.Evid. 313 “inspection,”
          or as a Mil.R.Evid. 315 “probable cause
          search,” or as one of the recognized
          exceptions listed under Mil.R.Evid. 314,
          the results of the search are still
          admissible if the search was
          constitutional. Thus, the results of
          constitutional searches are not subject to
          exclusion under the Military Rules of
          Evidence. Neither, it goes without
          saying, can the Rules cause evidence to be
          admitted in a court-martial if the
          Constitution forbids it. Hence,
          Mil.R.Evid. 313-15 are not “rules” at all,
          but at best a restatement of the rules;
          the rule is the Constitution. I certainly
          agree that servicemembers, commanders,
          military police, and military justice
          practitioners should have up-to-date
          materials on constitutional law. However,
          I suggest it is time to de-Manualize these
          provisions because people keep trying to
          “apply” them, thinking they are rules.


     I believe that this Court adopted this approach sub silentio

in Monroe when we simply followed Leon.   Consistent with this

precedent, I would continue to follow Monroe and Leon.




                                4