                 U NITED S TATES AIR F ORCE
                C OURT OF C RIMINAL APPEALS
                              ________________________

                              Misc. Dkt. No. 2019-07
                              ________________________

                                UNITED STATES
                                   Appellant
                                          v.
                             Kaleb S. GARCIA
                 Senior Airman (E-4), U.S. Air Force, Appellee
                              ________________________

         Appeal by the United States Pursuant to Article 62, UCMJ
                              Decided 10 April 2020 1
                              ________________________

Military Judge: Bradley A. Morris (arraignment); Elizabeth M. Hernan-
dez (motions).
GCM convened at: Minot Air Force Base, North Dakota.
For Appellant: Captain Kelsey B. Shust, USAF (argued); Colonel Shaun
S. Speranza, USAF; Mary Ellen Payne, Esquire.
For Appellee: Captain M. Dedra Campbell, USAF (argued); Mark C.
Bruegger, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Chief Judge
J. JOHNSON and Judge KEY joined.
                              ________________________

       This is an unpublished opinion and, as such, does not serve as
       precedent under AFCCA Rule of Practice and Procedure 30.4.
                              ________________________




1   We heard oral argument in this case on 26 February 2020.
                 United States v. Garcia, Misc. Dkt. No. 2019-07


POSCH, Judge:
    The Government brings this interlocutory appeal under Article 62, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 862, 2 challenging the military
judge’s ruling to suppress evidence obtained as a result of a search and seizure
of Appellee’s DNA from buccal cells on the inside of Appellee’s cheeks. The
Government maintains that Appellee’s DNA was taken pursuant to a search
authorization supported by probable cause that was untainted by either the
conduct of military personnel or a prior suppression of Appellee’s DNA that
was obtained by those personnel. We agree and find the military judge abused
her discretion in suppressing the evidence.

                            I. PROCEDURAL HISTORY
   Appellee is charged with sexual assault of Airman First Class (A1C) JL by
penetrating her vulva with his penis without her consent in violation of Article
120(b)(2)(A), UCMJ, 10 U.S.C. § 920(b)(2)(A). 3 Appellee was arraigned on 14
June 2019, at which time the military judge granted Appellee’s request to defer
motions and pleas. Hearings in the case were held at Minot Air Force Base
(AFB), North Dakota (ND), on 19–20 August 2019, and 1–7 November 2019 in
which the parties presented evidence and argument related to several motions.
    On 26 August 2019, following the first motions hearing, the military judge
suppressed buccal and penile swabs obtained from Appellee pursuant to a Feb-
ruary 2019 search authorization. The military judge determined the Air Force
Office of Special Investigations (AFOSI) agent, Special Agent (SA) B, who
sought the search authorization made materially false statements that Appel-
lee’s commander relied on to find probable cause. The military judge concluded
SA B “acted knowingly and intentionally and with reckless disregard for the
truth,” and absent SA B’s falsehoods, probable cause would not have supported
the search. On 3 November 2019, the military judge denied the Government’s
motion to reconsider her ruling. The Government did not appeal the suppres-
sion of the February 2019 search and seizure.
    Meanwhile, on 4 October 2019, the Government sought a second search
authorization for Appellee’s DNA, which is the subject of this appeal. This time
the Government requested a military judge, separate from the presiding judge


2 All references in this decision to the Uniform Code of Military Justice (UCMJ), Rules
for Courts-Martial, and Military Rules of Evidence are to the Manual for Courts-Mar-
tial, United States (2019 ed.).
3 This is an additional charge. Appellee also stands charged with two specifications of
sexual assault of another female Airman alleged to have occurred before the incident
in question involving A1C JL.


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                United States v. Garcia, Misc. Dkt. No. 2019-07


at Appellee’s trial, to act as the authorizing official for the search. The Govern-
ment provided two affidavits in support of its request: an affidavit from SA RD
(an experienced agent who worked the case with SA B), and an affidavit from
Mr. MT, a forensic biologist at the United States Army Criminal Investigation
Laboratory (USACIL) who tested vaginal swabs collected from A1C JL’s sexual
assault forensic examination (SAFE) and previously conducted DNA analysis
of Appellee’s February 2019 buccal and penile swabs that the trial judge had
suppressed.
    On 8 October 2019, a different authorizing official found probable cause
and allowed the search and seizure of a second set of buccal swabs from Appel-
lee’s person, which SA RD obtained the next day. Forensic analysis of the
swabs by Mr. MT revealed Appellee’s DNA was one of two contributing male
DNA profiles represented on A1C JL’s vaginal swabs.
    On 28 October 2019, Appellee moved to suppress evidence obtained as a
result of the October 2019 search and seizure. On 5 November 2019, a suppres-
sion hearing was held during an Article 39(a), UCMJ, 10 U.S.C. § 839(a), ses-
sion, and the parties presented evidence and argument on the legality of the
October 2019 search and seizure. On 6 November 2019, the military judge is-
sued her written ruling and again suppressed Appellee’s DNA. The trial coun-
sel notified the military judge of its appeal within 72 hours of her ruling. Article
62(a)(2), UCMJ, 10 U.S.C. § 862(a)(2).
   Appellee’s court-martial has been stayed, see Rule for Courts-Martial
908(b)(4), pending the Government’s appeal of the military judge’s 6 November
2019 ruling granting Appellee’s motion to suppress.

                                II. BACKGROUND
A. Investigation of Appellee
    The relevant charge in this appeal stems from an incident involving Appel-
lee and A1C JL that occurred at Appellee’s off-base apartment in Minot, ND,
in the early morning hours of Saturday, 2 February 2019. On Sunday, 3 Feb-
ruary 2019, A1C JL called her first sergeant to report that she was possibly
sexually assaulted by Appellee at his off-base residence over the weekend. The
first sergeant relayed this information to special agents of the AFOSI who ini-
tiated an investigation.
   1. Initial Interview of A1C JL
   The same day AFOSI received the first sergeant’s report, SA B and SA RD
conducted a video-recorded initial interview with A1C JL, which lasted about
20 minutes. SA B testified that the interview was short because its purpose
was to determine if there was credible information “to go forward and get [A1C


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                United States v. Garcia, Misc. Dkt. No. 2019-07


JL] a sexual assault kit . . . because that evidence is fleeting.” SA B also ex-
plained the purpose of the initial interview was to determine if there was “prob-
able cause to get search warrants for other things like the residence where [a
sexual assault] might have occurred or sexual assault kits on the alleged of-
fenders.”
    A1C JL told the AFOSI agents that after a night of heavy drinking with
Appellee and other friends, she and a male Airman, Senior Airman (SrA) CG,
returned with Appellee to Appellee’s apartment. The three continued drinking
and were talking in Appellee’s spare bedroom until she “blacked out com-
pletely.” A1C JL then described waking up twice during the night under cir-
cumstances that involved altercations with Appellee, and him alone.
   In the first incident, A1C JL described waking up to Appellee “trying to
have sex with [her].” She told the agents he was “pretty much on top of [her]”
and she “didn’t even know if [she] had clothes on or anything[.]” (Emphasis
added). She said she “ha[d] no idea because [she] was so drunk at the time, like
[she] was unconscious.” A1C JL told the agents she was certain it was Appellee
because when she asked, “What the f[**]k’s going on?” a male voice she recog-
nized responded, “It’s Garcia.” She also recognized Appellee’s face. A1C JL told
the agents she was “pretty sure [she] fell back asleep.”
    A1C JL described a second incident in which she woke up at 0300 or 0400
hours, Appellee was trying to get her to take a shower, and “[he] got really
mad” when she refused. She told the agents she was “pretty sure he had sex
with [her],” and explained she left the bedroom after the shower incident and
fell asleep on the couch in the living room. One of the agents asked her, “Do
you think there was any way [SrA CG] could have touched you or was it just
[Appellee]?” She replied, “I want to say no, but I don’t know because . . . I was
asleep.”
    She told the AFOSI agents she wanted a “rape kit” but did not know how
to get one and was concerned any evidence was lost because she had taken a
shower when she returned home from Appellee’s residence. A1C JL agreed to
participate in a SAFE by a sexual assault nurse examiner (SANE). Before leav-
ing for the examination she asked the agents, “What happens if I get pregnant
with him?” and volunteered she “bought Plan B at the store earlier today” but
had not taken it yet.
    As the interview was ending, A1C JL told the agents that she did not know
if Appellee ejaculated. She then stated she was not wearing clothes when she
awoke to Appellee trying to have sex with her, which was at odds with her
earlier statement that she could not recall if she was clothed at the time: an
agent asked, “Do you remember him being inside of you?” She answered, “just
that he was on top of me . . . like I didn’t have any clothes on, like from, I can’t


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                United States v. Garcia, Misc. Dkt. No. 2019-07


remember, really, anything, I just remember waking up to him . . . .” (Empha-
sis added).
    2. A1C JL’s SAFE at Trinity Hospital
   After the interview, A1C JL went to Trinity Hospital in Minot, ND, and a
SAFE was accomplished. While waiting at the hospital, A1C JL exchanged text
messages with Appellee about the night in question in a pretext conversation
that SA RD helped facilitate. Appellee told her it was SrA CG who had sex with
her that night and not him. Appellee explained that he was in the spare bed-
room looking for shorts, and the reason he wanted her to take a shower was
because she spilled beer all over herself.
    As part of the forensic examination, the SANE collected several biological
samples, including vaginal swabs. The SANE included a typed narrative in her
report of A1C JL’s first-person account of the incident in question. The narra-
tive in the SANE report—captured in the nurse’s words—is more disjointed
and non-linear compared to A1C JL’s initial interview with the AFOSI agents
that the agents video-recorded:
       Patient states, “‘. . . [W]e stopped at [t]he . . . liquor store and
       then we went to [Appellee]’s house. I had about [two] more
       drinks there and then I don’t remember much of anything. We
       talked on the couch about [Appellee’s] current sexual assault sit-
       uation 4 and we played some beer pong and that’s really all I re-
       member. Then he woke me up at 3 in the morning and he was
       trying to get me to take a shower. I kept saying ‘Why?’ but he
       wouldn’t say anything. He was on top of me and I said ‘Who is
       this?’ He said ‘Garcia’ and that’s how I knew it was him. I didn’t
       take a shower at that time then I went out to the couch and
       passed back out.”’ Patient states that her clothing was on when
       she woke up at 0300. At this time, the patient does not recall any
       details of the events that occurred. Patient states that “it felt
       like I had sex.”
(Emphasis added) (footnote added).
    The military judge and Appellee rely on the narrative for the proposition
that A1C JL was clothed when she felt like she had sex. For reasons not ap-
parent from the record, the SANE was not called to testify at either suppres-
sion hearing.
    3. First Authorization to Search and Seize Appellee’s DNA


4A1C JL knew a female Airman had accused Appellee of sexual assault. She and SrA
CG were discussing the case with Appellee before she fell asleep in the spare bedroom.


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                United States v. Garcia, Misc. Dkt. No. 2019-07


    While SA RD was with A1C JL at Trinity Hospital and before AFOSI re-
ceived the SAFE report including the SANE’s typed narrative, SA B contacted
the chief of military justice (CMJ) at the base legal office for advice on seeking
search authorization for Appellee’s DNA. SA B relayed the facts garnered from
the AFOSI interview with A1C JL, and was advised to seek verbal authoriza-
tion from Appellee’s commander to search and seize Appellee’s DNA.
   Also on 3 February 2019, at 1909 hours, SA B provided the following infor-
mation to the commander in a recorded three-party phone call that included
the CMJ:
       [A1C JL] believes she passed out with her clothes on in [Appel-
       lee]’s spare bedroom and her next memory is she woke up to [Ap-
       pellee] on top of her and she wasn’t wearing any clothes and nei-
       ther was he and she knows it was [Appellee] because she said
       “who is this” and he said “it’s Kaleb Garcia” and she looked at
       his face and knows what his face looks like and he was vaginally
       penetrating her and she passed back out and then she woke up
       around three or four in the morning and [Appellee] instructed
       her, he said, “hey you need to go take a shower” and she refused
       and then moved from the spare bedroom to the couch.
(Emphasis added).
    Based on the information provided by SA B, Appellee’s commander gave
verbal authorization to conduct “[a] complete [SAFE] of [Appellee] to include
penile swabbings, pubic combings, buccal swabs, and fingernail clippings.”
Half an hour later SA B drove to the commander’s residence where he memo-
rialized his earlier verbal authorization by signing an Air Force (AF) Form
1176, Authority to Search and Seize.
    At some point after executing the verbal search authorization on 4 Febru-
ary 2019, but before presenting a written affidavit to the commander on 5 Feb-
ruary 2019, SA B testified she realized the information she verbally relayed to
Appellee’s commander was incorrect. A1C JL’s memory whether she was
clothed was more uncertain than SA B had relayed when she sought verbal
authorization, and A1C JL had not described whether Appellee was clothed.
Additionally, SA B relayed to Appellee’s commander during the phone call her
assurance that Appellee penetrated A1C JL vaginally, which was unwarranted
based on the information A1C JL gave in her initial interview with the AFOSI
agents.
   SA B brought the erroneous information to the attention of the CMJ. The
CMJ testified she advised SA B to keep the information in her affidavit the
same as she had briefed to the commander, without any changes. The CMJ’s



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                United States v. Garcia, Misc. Dkt. No. 2019-07


rationale for doing so was because she believed the affidavit should mirror the
facts that the AFOSI agent previously provided. 5
    In accordance with the CMJ’s advice, even after learning her affidavit con-
tained incorrect information before she signed it, SA B failed to correct it or
attempt to re-accomplish the authorization with information that accurately
relayed what A1C JL told the AFOSI agents. On 5 February 2019, Appellee’s
commander administered an oath to SA B who signed the affidavit attesting to
the veracity of the incorrect information.
    4. Appellee’s Interview and Execution of the Search Authorization
    The AFOSI agents interviewed Appellee on 4 February 2019. He denied
having any sexual contact with A1C JL, but relayed that SrA CG and A1C JL
had sexual contact with each other throughout the evening. Appellee assumed
A1C JL and SrA CG had sexual intercourse in his spare bedroom. Appellee
asserted he was never alone with A1C JL other than three minutes in the spare
bedroom when he went looking for SrA CG’s shorts because SrA CG was wear-
ing Appellee’s pants. Also on 4 February 2019, the AFOSI agents took Appellee
to the hospital to undergo the SAFE authorized by his commander.
    5. Interviews with SrA CG
   That same day, the AFOSI agents interviewed SrA CG, who admitted to
engaging in sexual intercourse with A1C JL during the evening in question.
He described A1C JL as an active participant and told the AFOSI agents he
could not remember if he ejaculated inside of her because he was intoxicated.
SrA CG consented to a seizure of his DNA, and SA RD obtained two buccal
swabs and sent them to the USACIL for forensic analysis.
     On 7 February 2019, the AFOSI agents interviewed SrA CG a second time.
He told the agents that after returning to Appellee’s apartment the three
played a few games and watched a movie. When A1C JL went to use the rest-
room, Appellee indicated to SrA CG that he wanted to have a threesome and
SrA CG declined, giving the reason that Appellee was married. Later in the
evening, SrA CG had sexual intercourse with A1C JL in Appellee’s spare bed-
room. Afterwards, he fell asleep in the bed with A1C JL and believed A1C JL
fell asleep as well.
   SrA CG told the AFOSI agents he heard Appellee cleaning the living room
and went to help him, leaving A1C JL in the spare bedroom. After the cleaning
was finished, SrA CG looked for a movie to watch while Appellee went to tell
A1C JL what they were doing. He told the AFOSI agents Appellee was gone


5The CMJ participated as trial counsel at the arraignment on 14 June 2019, but not
during subsequent Article 39(a), UCMJ, sessions of court.


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               United States v. Garcia, Misc. Dkt. No. 2019-07


approximately 10 to 20 minutes and then returned, with A1C JL, to the living
room from the spare bedroom. They both returned from the bedroom clothed.
   6. Second Interview with A1C JL
   On 5 February 2019, SA B and SA RD conducted a second interview of A1C
JL. She described she was home on Friday night drinking alcohol and making
plans for the evening. She told the AFOSI agents at the time she was living
again with her ex-boyfriend because her new apartment flooded and had bed
bugs.
    A1C JL described going out drinking with friends and returning with Ap-
pellee and SrA CG to Appellee’s apartment. The three played beer pong and
then talked with Appellee about his pending sexual assault case in the spare
bedroom. She fell asleep and later awoke to Appellee trying to have sex with
her. Appellee’s face was in her neck, he was touching her stomach, and his body
was slightly to her side, but she was unsure if he was vaginally penetrating
her or not. She was wearing her shirt, but was unsure if she had on underwear
or pants.
    A1C JL told the AFOSI agents her next memory was standing in the bath-
room naked with Appellee who turned on the shower and told her to get in. She
told the AFOSI agents she refused because she believed Appellee was trying to
wash away evidence that he had sexual contact with her. After she refused,
she put her clothes back on and slept near SrA CG on a couch in the living
room.
   7. DNA Analysis
     The evidence obtained by AFOSI was sent to the USACIL for forensic anal-
ysis. On 15 March 2019, Mr. MT, a forensic biologist at the USACIL, completed
a DNA analysis on A1C JL’s and Appellee’s SAFE kits and SrA CG’s buccal
swabs. Appellee’s DNA profile was matched to one of two male DNA profiles
obtained from semen residue found on A1C JL’s vaginal swabs. Mr. MT iden-
tified the second DNA profile as belonging to SrA CG.
B. First Suppression Ruling
    In a written ruling on 26 August 2019, the military judge granted the De-
fense’s motion to suppress evidence obtained from the 4 February 2019 search
and seizure of Appellee’s DNA. The military judge determined that SA B gave
false information to Appellee’s commander on 3 February 2019 when she
sought verbal authorization. The military judge found SA B told the com-
mander that “[A1C JL] woke up to [Appellee] on top of her and she wasn’t
wearing any clothes and neither was [Appellee],” and that Appellee “was vag-
inally penetrating her.” The agent’s statements are recorded and not in dis-
pute.


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                United States v. Garcia, Misc. Dkt. No. 2019-07


    The military judge found SA B knew her statements were “intentionally
false” because “A1C JL told SA [B] earlier that day she could not remember if
either of them were wearing clothes and she did not know if vaginal penetra-
tion occurred.” The military judge found that during A1C JL’s initial 20 minute
interview she “consistently maintained that she was unsure whether penetra-
tion occurred” and yet “believes the [Appellee] had sex with her.” In fact, A1C
JL told both AFOSI agents she was “pretty sure [Appellee] had sex with [her].”
A1C JL’s statement to the agents is recorded and also not in dispute. However,
this fact was omitted in the military judge’s written rulings granting the De-
fense motion and denying the Government’s motion for reconsideration.
    The military judge ruled the Defense met its burden to show that SA B
“acted knowingly and intentionally and with reckless disregard for the truth.”
Further, the military judge found the Government failed to meet its burden of
proving by a preponderance of the evidence, with the false information set
aside, that the remaining information presented to the authorizing officer was
sufficient to establish probable cause.
C. Second Authorization to Search and Seize Appellee’s DNA
    After the first hearing that resulted in the suppression of Appellee’s DNA,
in October 2019, Captain (Capt) JS 6 of the Minot AFB legal office advised SA
RD to accomplish an affidavit to support a second search authorization. Capt
JS did so after the base legal office sought guidance on what to do next from
higher headquarters following the suppression ruling. At the second suppres-
sion hearing, SA RD testified that it was not his independent decision to seek
a second authorization because the AFOSI investigation was closed. He pre-
pared his affidavit after examining the report of investigation along with rec-
orded witness interviews and notes he took during interviews. Capt JS re-
viewed and edited SA RD’s draft, added a summarized transcript of the agents’
initial recorded interview with A1C JL, and then on 4 October 2019 notarized
SA RD’s signature. Before doing so, SA RD reviewed and considered each revi-
sion made by the legal office before adopting it as his own.
   SA RD then sought authorization to collect buccal swabs from Appellee to
compare his DNA against DNA from two contributing males that had been




6Capt JS participated as assistant trial counsel at arraignment, and as trial counsel
under the supervision of a circuit trial counsel during all subsequent Article 39(a),
UCMJ, sessions of the court-martial.




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                 United States v. Garcia, Misc. Dkt. No. 2019-07


determined by forensic analysis of A1C JL’s vaginal swabs. This time, the Gov-
ernment requested a military judge with no involvement in the matter to au-
thorize a search and seizure of Appellee’s DNA.
    The Government provided the authorizing official with two affidavits in
support of its request: 7 the affidavit SA RD accomplished on 4 October 2019
with the assistance of Capt JS, and a 30 September 2019 affidavit from Mr.
MT, the forensic biologist from the USACIL who had tested vaginal swabs col-
lected from A1C JL’s SAFE kit, the buccal swabs obtained from SrA CG, and
Appellee’s DNA that had been suppressed.
    1. SA RD’s 4 October 2019 Affidavit
    In his affidavit in support of the second search authorization, SA RD sum-
marized the information obtained in the AFOSI investigation and arranged it
mainly in chronological order. SA RD included a summarized transcript of por-
tions of A1C JL’s recorded interview on 3 February 2019: 8
       . . . [A1C] JL: That’s where everything kinda gets blur[r]y, and I
       blacked out completely, like unconscious pretty much. And I
       ended up waking up half way through the night and Garcia was
       trying to have sex with me. And kinda fell—I’m pretty sure I fell
       back asleep, and he woke me up at 0300 or 0400 am telling me
       to go take a shower. And I’m pretty sure he had sex with me.
       Um and I refused to take a shower and he got really mad. Then
       I went and slept on the couch and I woke up in the morning and
       they were kinda just acting fine and everything like that so. And
       then I was gonna go get a rape kit but then I didn’t know if I
       had to go through like TRICARE or anything like that so I didn’t
       do it [inaudible] because I didn’t know how that all worked.
       . . . SA [B]: Well so that’s actually the next step that we’ll do after
       this is that we’ll take care of it, we’ll go down to Trinity and get
       a kit done.



7 The CMJ emailed the Government’s request to the authorizing official. As evident
from an attachment to Appellee’s 28 October 2019 motion to suppress, both affidavits
were included in the email. However, the AF Form 1176, Authority to Search and Seize,
signed by the authorizing official, states “This authorization incorporates the attached
affidavit of [SA RD], dated 4 October 2019,” and does not reference any other docu-
ment. The military judge concluded the authorizing official reviewed both affidavits as
part of his probable cause determination.
8 This conversation is from SA RD’s affidavit. The bold and underlined portions of the
following quote appear in the original text, along with [inaudible] and [JL responds
no]. All other alterations were made by this court.


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              United States v. Garcia, Misc. Dkt. No. 2019-07


      . . . SA [B]: So just give me a little more detail on when you
      blacked out to when you woke up to Garcia trying to have sex
      with you. Can you just give me a little more detail?
      . . . [A1C] JL: Um well I like, I guess I, because we were all like
      talking in the spare bedroom after we got done playing pong.
      And I guess I just fell asleep because I was so drunk. And then I
      woke up with him pretty much on top of me. I didn’t even know
      if I had clothes on or anything like I have no idea because I was
      so drunk at the time, like I was unconscious so.
      . . . SA [RD]: How did ya—I mean when you said you woke up
      you knew it was him, how did you know it was him? I mean what
      stood out to you to say you know it’s Garcia? Anything in partic-
      ular? His face—I mean I’m sure you recognize—
      . . . [A1C] JL: His face, [inaudible] ya it was definitely him. And
      he said . . . I was like “who is that” and he was like “it’s Garcia.”
      So I knew it was him.
      . . . SA [B]: Do you think—um do you have any other injuries or
      anything like that? [JL responds no]. Okay um was it just vag-
      inal intercourse, was there any like anal intercourse or any-
      thing like that?
      . . . [A1C] JL: Not that I—I don’t think so.
      . . . SA [B]: Ya do you have any other questions for us . . .
      . . . [A1C] JL: Um the last thing is, is like what happens if I
      get pregnant with him?
      . . . SA [RD]: Do you remember him, I’m sorry just one—being
      inside of you? I mean did you remember that at all? Or just that
      he was on top of you?
      . . . [A1C] JL: Just that he was on top of me and like I didn’t have
      any clothes on. Like from, like I can’t remember really anything.
      I just remember waking up to him.
   The affidavit then relayed that a SANE at Trinity Hospital conducted a
SAFE. As part of the medical exam, the SANE collected, among other things,
four vaginal swabs from A1C JL. The affidavit informed that the SAFE kit was
sent to the USACIL for DNA analysis so that “[a]ny DNA found on [A1C JL’s]
vaginal swabs can be compared to DNA collected from [Appellee’s] buccal
swabs” that were the subject of the Government’s request for authorization.
Although SA RD had reviewed the SANE’s report, he did not include any in-
formation from the report, such as that A1C JL told the nurse “her clothing


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                 United States v. Garcia, Misc. Dkt. No. 2019-07


was on when she woke up at 0300” when Appellee tried to make her take a
shower. He likewise omitted that A1C JL told the nurse she “does not recall
any details of the events that occurred.”
    SA RD averred that also on 3 February 2019, while waiting for the SAFE,
A1C JL texted Appellee and asked him if they had sex on Friday night, 1–2
February 2019. Appellee replied that they did not have sex, but that she had
sex with SrA CG. A1C JL then asked Appellee why he was in the room on top
of her if they did not have sex. Appellee replied that he was in the room looking
for “Soffe” brand shorts. She then asked him why he told her she needed to
take a shower. He replied that she had spilled beer all over herself, so he
wanted her to clean up. SA RD averred that Appellee continued to deny any
sexual contact with A1C JL and restated that SrA CG was the only person who
had sex with her on Friday night. SA RD further averred that he and SA B
conducted an interview with Appellee who told the agents he “never touched
[A1C JL] sexually between 1–2 Feb 19 and that he has never had sex” with
her. Appellee “stated that he was never alone with [A1C JL] aside from three
minutes in the spare bedroom. When asked if there was any reason forensic
examiners would find [Appellee]’s DNA inside of [A1C JL], [Appellee] re-
sponded, ‘Shouldn’t, no.’”
    SA RD averred that on 5 February 2019, he and SA B conducted a second
interview of A1C JL. A1C JL told the AFOSI agents that she was “pretty
drunk” at Appellee’s apartment and “lost memory” after “shot gunning” a beer.
The affidavit further relayed that
       [A1C JL] remembered having a conversation with [Appellee] and
       [SrA CG] in the spare bedroom about [Appellee]’s pending court
       case. 9 [She] could not remember how she got into the spare bed-
       room. [She] remembered falling asleep and then woke up to [Ap-
       pellee] “trying to have sex with her[.”] [She] stated her memory
       was waking up to [his] face in her neck and touching her stom-
       ach. [She] stated [his] body was slightly to the side of her. [She]
       was wearing her shirt, but was unsure if she had on any under-
       wear or pants. [She] was unsure if [he] was vaginally penetrat-
       ing her or not. When [she] woke up to [Appellee], [she] asked,
       “Who is this?” and [Appellee] responded, “It’s Garcia. Don’t you
       remember?” [She] responded, “What the f**k,” and passed out


9 Near the end of his affidavit, SA RD explained the Minot AFB AFOSI detachment
“previously ran an investigation on [Appellee] for allegedly sexually assaulting another
victim in his home, which was initiated on 27 Aug 18,” and that “[o]n 7 Jan 19, [Appel-
lee] was formally charged with violating [UCMJ] Article 120, Sexual Assault related
to the previous allegation.”


                                          12
               United States v. Garcia, Misc. Dkt. No. 2019-07


       again. [She] was certain it was [Appellee], not [SrA CG], because
       [Appellee]’s voice was much deeper than [SrA CG]’s voice. [Her]
       next memory was standing in the bathroom naked with [Appel-
       lee]. [Appellee] turned the shower on and told her to get in. [She]
       refused because she was scared [he] was trying to get rid of evi-
       dence that he had any sexual contact with [her]. After [she] re-
       fused, [she] put her clothes back on, which she believed were all
       in the bathroom, and slept on the couch next to [SrA CG].
(Footnoted added).
    SA RD averred that on 7 February 2019, he and SA B interviewed SrA CG
who relayed the following information: While playing pool at a bar on Friday
night, A1C JL “missed hitting the scratch ball with the pool stick multiple
times because she was so intoxicated.” After going to Appellee’s apartment, the
three sat on the couch talking. A1C JL continued to drink alcohol at the apart-
ment, and they all played a few games of beer pong before they watched a
movie. SA RD relayed in his affidavit that SrA CG “ha[d] sex with [A1C JL] in
the spare bedroom,” after which “[SrA CG] recalled hearing [Appellee] cleaning
the living room and went to help him. [Appellee] told [SrA CG] to put a movie
on while he went to get [A1C JL].” The affidavit stated SrA CG told the AFOSI
agents that
       [Appellee] and [A1C JL] were in the spare bedroom alone for ap-
       proximately 10–20 minutes, then they both came out to the liv-
       ing room clothed. Eventually, [A1C JL] walked into the living
       room first. [SrA CG] did not recall any discussion or sounds com-
       ing from the room or any sounds coming from the shower or
       bathroom. He did not recall which room they came from. [SrA
       CG] did not remember [Appellee] asking [A1C JL] to take a
       shower.
    SA RD further averred that after additional questioning, SrA CG disclosed
to the AFOSI agents that “[Appellee] was talking about ‘something could hap-
pen’ that night, or words to that effect, meaning he wanted to have sex with
[A1C JL].” As described in SA RD’s affidavit, SrA CG explained to the agents
that
       [a]t some point while in the living room after playing beer pong,
       [Appellee] asked [SrA CG] to have a threesome (having sex with
       three people) with [A1C JL]. [SrA CG] said no because [Appellee]
       was married. Even though [SrA CG] said no, [Appellee] kept
       nodding his head towards him and [A1C JL], and then nodding
       his head towards the spare bedroom. [SrA CG] opined that [Ap-
       pellee]’s gestures meant he wanted them all to go to the spare


                                       13
                United States v. Garcia, Misc. Dkt. No. 2019-07


       bedroom to have sex, so [SrA CG] shook his head no in response.
       This exchange occurred earlier in the night before [SrA CG] and
       [A1C JL] had sex, and before [Appellee] went into the spare bed-
       room alone with [A1C JL] for approximately 10–20 minutes.
    SA RD concluded his affidavit stating “[b]ased on the information provided
by [A1C JL] and the interview of [SrA CG] on 7 Feb 19, and my training and
experience, I believe there is probable cause to obtain buccal swabs from [Ap-
pellee] for DNA analysis and comparison with the SAFE kit obtained from
[A1C JL] during the course of this investigation.” Finally, SA RD stated that
on 2 October 2019, he had “briefed the above facts and circumstances to Capt
[JS], 5th Bomb Wing, Staff Judge Advocate (SJA) office . . . who agreed there
was sufficient probable cause to collect DNA from [Appellee].”
   2. Mr. MT’s 30 September 2019 Affidavit
   Mr. MT’s 30 September 2019 affidavit, which the Government also pro-
vided to the authorizing official, stated he identified the presence of DNA “orig-
inating from three individuals” on the vaginal swabs he analyzed from A1C
JL’s SAFE kit. Among the three DNA profiles, Mr. MT identified two as male
contributors. Mr. MT reported one profile belonged to SrA CG, and the other
as an “unknown male.” However, at the time Mr. MT conducted the second
analysis he knew that the second profile matched Appellee’s DNA profile that
he analyzed from the first seizure of Appellee’s DNA that the military judge
had suppressed.
   3. Authorization and Analysis of Appellee’s Buccal Swabs
   With the information from both affidavits, on 8 October 2019 the authoriz-
ing official found probable cause existed and approved search and seizure of
Appellee’s DNA. The next day, SA RD executed the search authorization and
obtained two buccal swabs from Appellee and sent them to the USACIL where
they were forensically analyzed.
    Mr. MT again participated in the processing and analysis of Appellee’s
DNA. The results were reflected in a second report, dated 25 October 2019. Mr.
MT examined vaginal swabs from A1C JL and identified the presence of male
DNA from Appellee and SrA CG. Although the information had been sup-
pressed, as part of his duties Mr. MT compared the information against Appel-
lee’s DNA profile obtained from the first swabs that had been suppressed,
which were maintained in the USACIL database. He included the results of
that comparison in his 25 October 2019 report that referenced the findings in
his 15 March 2019 report.
D. Defense Motion to Suppress and the Second Suppression Hearing




                                       14
                United States v. Garcia, Misc. Dkt. No. 2019-07


    At trial, Appellee again moved to suppress admission of his DNA obtained
from his buccal cells pursuant to a search authorization that he once more
claimed was not founded on probable cause. The Defense argued in its written
motion that SA RD recklessly omitted two crucial pieces of information from
his affidavit. First, that A1C JL told the SANE that her clothing was on when
she awoke to Appellee and that she did not recall details of the events that
occurred, just that “it felt like [she] had sex.” Second, that SA B provided a
false affidavit to the commander for the same evidence SA RD was seeking to
search and seize, and she did so in reckless disregard for the truth.
    The Defense also argued that Mr. MT’s affidavit was false because it stated
A1C JL’s vaginal swabs were determined to have DNA from an “unknown male
individual” whom Mr. MT in fact knew to be Appellee because he was the same
analyst who examined Appellee’s DNA that was submitted to the USACIL pur-
suant to the first, invalidated search authorization. The Defense further ar-
gued as a basis for suppression that Mr. MT’s affidavit failed to disclose his
prior involvement in testing Appellee’s DNA. The Defense claimed that the
recklessly omitted information and false information rendered the second
search authorization ineffectual because it lacked probable cause.
   1. SA RD’s Testimony
    At the second suppression hearing, SA RD testified he knew evidence from
the first DNA analysis was suppressed on grounds that SA B included inaccu-
rate information in her affidavit. He explained he was not involved in complet-
ing her affidavit.
    SA RD explained that he wrote the original draft of his affidavit and in-
cluded actions he and SA B took between 3 and 7 February 2019 at the begin-
ning of the investigation. He reviewed SA B’s affidavit but did not rely on it
before executing his own on 4 October 2019. He reviewed their recorded initial
interview with A1C JL along with notes he took of her second interview. SA
RD also reviewed their interview with SrA CG who was present in Appellee’s
apartment during the incident in question. He explained how he finalized his
affidavit with the assistance of the legal office and did not recall anything they
recommended he take out. He affirmed their revisions included “things that
they added,” which he reviewed and confirmed were accurate. He relayed he
valued their legal opinion as regards probable cause from their knowledge of
the case.
    SA RD reviewed the SANE report the day after it was prepared before he
gave it to SA B. On cross-examination he was asked by trial defense counsel if
he agreed “that by not including the statement from the SANE from [A1C JL]
saying that she was wearing clothing, that’s not presenting the whole picture
to the search authority if you omit that?” SA RD paused before replying that


                                       15
               United States v. Garcia, Misc. Dkt. No. 2019-07


he “really can’t say,” and explained he did not normally include information
from SANE reports when seeking probable cause authorizations. SA RD ulti-
mately agreed that leaving the information out did not present “the whole com-
plete picture” to the authorizing official.
    SA RD explained that even though his investigation was closed in October
2019, AFOSI was receptive to “going back to reopen the investigation” if the
legal office thought there were “further investigative steps that needed to be
done or should be done to support the case.” SA RD testified to a hypothetical
question that was put to him by the trial defense counsel. The AFOSI agent
was told to assume Appellee was “out of this case altogether” and that SrA CG
and A1C JL were alone in Appellee’s apartment. Counsel then asked the agent
if he would have sought DNA evidence to send to the USACIL for testing if
A1C JL reported she “felt like [she] had sex,” and SrA CG confessed to having
sexual intercourse with her. SA RD answered he would still have accomplished
DNA testing under those hypothetical circumstances for the purpose of corrob-
orating the statements. The military judge asked if there were any cases where
he had not sought DNA corroboration and the agent responded “maybe three
or four times” out of “50 to 75 cases.”
   2. Mr. MT’s Testimony
   Mr. MT testified at the suppression hearing about the steps he took to pro-
cess Appellee’s buccal swabs and “that he did not do anything differently” the
second time he tested Appellee’s DNA. He explained that he “performed [his]
tasks the way [the USACIL’s] procedures are written and the way that [per-
sonnel at the USACIL] do it every time.” The trial counsel asked if he relied on
Appellee’s buccal and penile swabs from the first analysis in conducting the
second analysis. Mr. MT replied, “No. I did not.”
    He explained why his 25 October 2019 report nonetheless referenced his
earlier, 15 March 2019, report: he explained that he was required to “reference
back [to] that first report” because it was necessary for the USACIL’s accredi-
tation; he emphasized the laboratory “can’t just simply ignore that [earlier re-
port]. We have to state previous work was done in this case” in a subsequent
report.
    Mr. MT explained it is common practice for the USACIL to receive re-sub-
mission samples, also known as reference samples. When the USACIL receives
reference samples, the laboratory will treat them as an unknown or “question”
sample in determining whether the sample is a known contributor to other
DNA profiles. Mr. MT never had to re-analyze samples for DNA analysis fol-
lowing a military judge’s ruling to suppress DNA. He had never heard of any-
one at the USACIL ever addressing the issue of re-analysis following a ruling
to suppress DNA and was unsure of the protocol.


                                      16
                United States v. Garcia, Misc. Dkt. No. 2019-07


    Mr. MT knew at the time he completed the affidavit that the unknown male
was in fact Appellee. He nevertheless regarded Appellee’s original reference
sample as “unknown” and used this term in his report and his affidavit because
the original reference sample was no longer valid for forensic analysis. 10 In his
thinking, “it’s as if that first one doesn’t exist,” and “has gone from being at-
tributed to an individual to now it’s an unknown.” Because he could not validly
attribute the contributing sample discovered in the analysis of A1C JL’s vagi-
nal swabs to Appellee, he attributed it to an “unknown male individual.”
E. Military Judge’s Second Ruling Granting the Motion to Suppress
    On 6 November 2019, the military judge granted Appellee’s motion to sup-
press the second search and seizure of his DNA because the authorizing official
who allowed the search was left without “the full picture of evidence and infor-
mation” and, “like previously, the Government tried to pick and choose what
facts to provide.” The Government, she found, “knew how imperative it was to
provide a complete picture to the [second] search authority” because “the Gov-
ernment had already had the previous search of [Appellee]’s DNA suppressed
because of false statements [SA B] provided to the [first] search authority.”
     The military judge found the information relied on by the authorizing offi-
cial to determine probable cause was incomplete and therefore misleading. The
military judge found SA RD, like SA B, had “intentionally and recklessly” omit-
ted information from his affidavit. Her findings focused on the AFOSI agent’s
failure to include four facts, only the first of which was raised by the Defense
and contested at the suppression hearing: (1) that A1C JL told the SANE that
she was clothed when she woke up at 0300; (2) that SrA CG disclosed to SA RD
he observed Appellee and A1C JL were clothed when they came into the living
room after being alone together in the spare bedroom for approximately 10 to
20 minutes; (3) that SrA CG admitted to having sex with A1C JL on the night
in question in two separate AFOSI interviews, and not just the second inter-
view on 7 February 2019 that SA RD references in his affidavit; and (4) that
A1C JL told SA RD she was living with her ex-boyfriend during the time in
question. SA RD was not questioned at the hearing about omissions (2) through
(4).



10Mr. MT testified that he did not know Appellee’s DNA obtained from penile swabs
had been “suppressed,” per se, when he completed the affidavit, but understood that
“the oral swabs from the initial submission were no longer valid.” The trial counsel
asked, “So you didn’t know it was suppressed. But you knew something happened in
the court of law that now requires you to re-accomplish a second analysis?” Mr. MT
acknowledged, “That’s correct. Yes.”




                                        17
                 United States v. Garcia, Misc. Dkt. No. 2019-07


    The military judge also took exception to the manner in which SA RD pre-
sented information in his affidavit. First, the military judge took issue with
how SA RD composed his affidavit by separating two exculpatory facts: infor-
mation that Appellee sent texts to A1C JL in which Appellee revealed she had
sex with SrA CG and not with Appellee was not together with an admission
the agents later obtained from SrA CG that he had sex with A1C JL on the
night in question. Instead, SA RD presented this information in chronological
order as he did with other investigative steps the AFOSI agents had taken. 11
Referencing the text messages, the military judge found that “[s]uch a state-
ment in a vacuum could lead a search authority to believe the statement was
not true, or the Accused was simply making an exculpatory statement.” The
military judge also took issue with SA RD’s summary of his interview with A1C
JL where he used bold and underlined text to emphasize his leading question
to her, “Okay um was it just vaginal intercourse . . . ?” The military judge found
this placed too great an emphasis on the “conclusory question” because SA RD’s
“assertion of vaginal intercourse is not a fact.”
    In addition to finding SA RD intentionally and recklessly omitted infor-
mation, the military judge found Mr. MT failed to disclose to the authorizing
official that he had previously tested Appellee’s DNA. The military judge de-
termined that Appellee met his burden to demonstrate that the inclusion of
the facts SA RD omitted from his affidavit “would have extinguished probable
cause.” Her determination made it unnecessary to resolve whether, after set-
ting aside Mr. MT’s statement that the military judge found to be false—that
his examination of vaginal swabs revealed DNA from an “unknown male indi-
vidual” he knew was Appellee—the Government proved that the remaining
information was sufficient to establish probable cause.
    Further, the military judge ruled that the new DNA evidence was deriva-
tive of the initially tainted evidence she had suppressed. She explained the new
request for Appellee’s DNA “came only after the Court suppressed the first
search and seizure,” and the second authorization was based on information
SA B and SA RD collected together. The military judge also relied on the fact
that Mr. MT, who ran the original test of Appellee’s DNA, wrote an affidavit
in support of probable cause for the second authorization. Once Appellee’s DNA
was seized for the second time, it was sent to the same lab where it was ana-
lyzed by Mr. MT. The military judge found Mr. MT “conducted an independent
analysis to compare [Appellee’s DNA] to the previously submitted samples by


11 SA RD’s affidavit described sequentially the texts Appellee sent to A1C JL on 3 Feb-
ruary 2019, the agents’ interview of Appellee on 4 February 2019, and their second
interviews of A1C JL and SrA CG on 5 February 2019 and 7 February 2019, respec-
tively.


                                          18
                United States v. Garcia, Misc. Dkt. No. 2019-07


[A1C] JL and SrA [CG].” He then “generated a report that referenced back to
the original report,” and both reports relied on Appellee’s penile swabs which
had been suppressed. The military judge found, “While Mr. [MT] conducted an
independent examination of [Appellee’s] buccal swabs, the resulting test is cer-
tainly derivative of the first, as evidenced from [Mr. MT’s] reference to the orig-
inal test and its results in the report.”
    The military judge concluded the actions of SA RD and Mr. MT tainted the
second authorization and rejected the Government’s explanation that the Oc-
tober 2019 search affidavits contained only information SA RD and Mr. MT
had lawfully obtained. The military judge also rejected the Government’s con-
tention that it “would have sent [A1C] JL’s and SrA [CG]’s samples to be tested,
even without the Accused’s sample,” and that “[w]hen the results came back
showing the presence of a third individual,” 12 the Government would then have
“collect[ed] the Accused’s DNA at that point.” The military judge gave four rea-
sons why she found this line of reasoning flawed and ruled the October 2019
search did not originate from an independent source.
   First, the military judge relied on the conclusion that there was simply no
probable cause:
       But for the illegal search, the Government would not know the
       Accused’s DNA was present on [A1C] JL’s vaginal swabs. Be-
       cause neither [A1C] JL nor SrA [CG] provide probable cause to
       believe a crime had been committed by the Accused, AFOSI
       would still not have probable cause to request a search authori-
       zation for the Accused's DNA. But for the previous illegal search
       and seizure identifying the Accused as a DNA contributor, noth-
       ing indicates the Accused and [A1C] JL were sexually intimate.
On this point the military judge was resolute that “information [A1C] JL and
SrA [CG] provide[d] is not evidence of a crime.” This is because “[A1C] JL still
cannot say whether penetration occurred and SrA [CG] has no knowledge of
whether penetration [by Appellee] occurred.” To this end, the military judge
found as fact that A1C JL “only reported an encounter with [Appellee] because
she did not recall any sexual contact with [SrA CG] on the evening of 1–2 Feb-
ruary 2019.”
    Second and related, the military judge found “[A1C] JL was in an intimate
relationship with her ex-boyfriend at the time, which may provide an explana-
tion for the third source of DNA.” She concluded “it is speculative to believe the
explanation for the third source of DNA would have been the Accused rather


12Or, a second male contributor to DNA found on A1C JL’s vaginal swabs: one of the
three DNA contributors was A1C JL.


                                        19
                 United States v. Garcia, Misc. Dkt. No. 2019-07


than [an ex-boyfriend], with whom [A1C] JL was having an intimate relation-
ship at the time of the charged offense.”
    Third, the military judge found “[t]here is no indication AFOSI was pursu-
ing any leads through a means untainted by the illegality.” The military judge
found the “Government’s decision to seek a new search authorization was
prompted by the information gathered during the prior illegal search and only
a result of having that search suppressed.” The military judge reasoned, “[b]ut
for the illegal search, the Government would not know the Accused’s DNA was
present on [A1C] JL’s vaginal swabs.”
    Fourth, the military judge relied on the fact that “the new request for a
search authorization came only after the Court suppressed the first search and
seizure” of Appellee’s DNA and “[t]he second search authorization was based
on information collected by SA [B] and SA [RD] together.” The military judge
relied on the failure of the Government to “utilize a new, untainted investiga-
tor” and “a new, untainted analyst.” The military judge concluded, “[i]nstead,
the Government is attempting to try to get to the end they know exists, rather
than starting with a fresh, untainted beginning.”
    Ultimately, the military judge concluded the exclusionary rule was appro-
priate. The military judge explained: 13
        Finally, exclusion of the evidence will result in appreciable de-
        terrence of future unlawful search and seizures; namely, rein-
        forcing to investigators and legal offices the importance of accu-
        rately relaying information to the search authority. In this case,
        the conduct is sufficiently deliberate that exclusion can mean-
        ingfully deter it, and sufficiently culpable that such deterrence
        is worth the price paid by the justice system.
    We disagree and find the military judge abused her discretion in suppress-
ing the evidence by applying an erroneously heightened standard for probable
cause and finding the evidence was not derived from an independent source as
a matter of law.

                                       III. LAW
A. Jurisdiction and Standard of Review for Article 62, UCMJ, Appeals




13The military judge concluded that the good faith exception to the exclusionary rule,
see generally Mil. R. Evid. 311(c)(3), did not apply because of her finding that SA RD’s
“knowing and intentional” omission of facts from his affidavit was done “with reckless
disregard for the truth.”


                                          20
                 United States v. Garcia, Misc. Dkt. No. 2019-07


    We have jurisdiction to hear this appeal under Article 62(a)(1)(B), UCMJ,
10 U.S.C. § 862(a)(1)(B), which authorizes the Government to appeal “[a]n or-
der or ruling which excludes evidence that is substantial proof of a fact mate-
rial in the proceeding.” Evidence that Appellee’s DNA was recovered on the
vaginal swabs from A1C JL’s SAFE is substantial proof that Appellee pene-
trated A1C JL’s vulva with his penis. Because penetration is an element of the
charged offense, the presence of Appellee’s DNA is substantial proof of a mate-
rial fact in the proceeding.
    When the Government appeals a ruling under Article 62, UCMJ, this court
reviews the military judge’s decision “directly and reviews the evidence in the
light most favorable to the party which prevailed at trial.” United States v.
Lewis, 78 M.J. 447, 453 (C.A.A.F. 2019) (citing United States v. Pugh, 77 M.J.
1, 3 (C.A.A.F. 2017)). Because this issue is before us pursuant to a Government
appeal, we may act only with respect to matters of law. Article 62(b), UCMJ,
10 U.S.C. § 862(b). We may not make findings of fact, as we are limited to
determining whether the military judge’s factual findings are clearly erroneous
or unsupported by the record. United States v. Lincoln, 42 M.J. 315, 320
(C.A.A.F. 1995). “When a court is limited to reviewing matters of law, the ques-
tion is not whether a reviewing court might disagree with the trial court’s find-
ings, but whether those findings are ‘fairly supported by the record.’” United
States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004) (quoting United States v. Bur-
ris, 21 M.J. 140, 144 (C.M.A. 1985)).
B. Fourth Amendment Legal Standards
    The Fourth Amendment demands “no warrants shall issue, but upon prob-
able cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” 14 “[U]sing a buccal
swab on the inner tissues of a person’s cheek in order to obtain DNA samples
is a search” under the Fourth Amendment. Maryland v. King, 569 U.S. 435,
446 (2013); see also Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602,
618 (1989) (blood, urine, and breath samples are searches for Fourth Amend-
ment purposes); see generally Schmerber v. California, 384 U.S. 757, 770 (1966)
(“Search warrants are ordinarily required for searches of dwellings, and absent
an emergency, no less could be required where intrusions into the human body
are concerned.”).
   We review a military judge’s ruling on a motion to suppress evidence for an
abuse of discretion. United States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F.


14U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be vio-
lated.”).


                                          21
                United States v. Garcia, Misc. Dkt. No. 2019-07


2016) (citation omitted). “[T]he abuse of discretion standard of review recog-
nizes that a judge has a range of choices and will not be reversed so long as the
decision remains within that range.” Gore, 60 M.J. at 187 (citation omitted).
This standard requires “more than a mere difference of opinion.” United States
v. Buford, 74 M.J. 98, 100 (C.A.A.F. 2015) (citation and internal quotation
marks omitted).
    However, “[a] military judge abuses his discretion when his findings of fact
are clearly erroneous, when he is incorrect about the applicable law, or when
he improperly applies the law.” United States v. Seay, 60 M.J. 73, 77 (C.A.A.F.
2004) (footnote omitted). An abuse of discretion occurs if the military judge’s
decision “is influenced by an erroneous view of the law.” United States v. Cow-
gill, 68 M.J. 388, 390 (C.A.A.F. 2010) (emphasis added) (quoting United States
v. Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006)). “[A] finding is clearly erroneous
when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. Martin, 56 M.J. 97, 106 (C.A.A.F. 2001) (citation
and internal quotation marks omitted).
   1. Review of Search Authorizations
   When reviewing a search authorization, we “do not review a probable cause
determination de novo.” Hoffmann, 75 M.J. at 125. Instead, we examine
whether the person who authorized the search “had a substantial basis for con-
cluding that probable cause existed.” United States v. Nieto, 76 M.J. 101, 105
(C.A.A.F. 2017) (quoting United States v. Rogers, 67 M.J. 162, 164–65 (C.A.A.F.
2009)). Great deference is given to the probable cause determination due to the
Fourth Amendment’s strong preference for searches conducted pursuant to a
warrant. Illinois v. Gates, 462 U.S. 213, 236 (1983) (citations omitted). Alt-
hough a reviewing court’s deference is “not boundless,” United States v. Leon,
468 U.S. 897, 914 (1984), “courts should not invalidate warrants by interpret-
ing affidavits in a hyper-technical, rather than a common sense, manner.”
United States v. Gallo, 55 M.J. 418, 421 (C.A.A.F. 2001) (quoting Gates, 462
U.S. at 236).
   2. Probable Cause
    If the defense challenges evidence seized pursuant to a search authoriza-
tion on the ground that the authorization was not based upon probable cause,
“the prosecution has the burden of proving by a preponderance of the evidence
that the evidence was not obtained as a result of an unlawful search or sei-
zure.” Mil. R. Evid. 311(d)(5)(A).
    The Supreme Court stated in Gates that “[p]robable cause deals ‘with prob-
abilities. These are not technical; they are the factual and practical considera-



                                       22
                United States v. Garcia, Misc. Dkt. No. 2019-07


tions of everyday life on which reasonable and prudent men, not legal techni-
cians, act[.]’” 462 U.S. at 241 (quoting Brinegar v. United States, 338 U.S. 160,
175 (1949)). Probable cause “requires more than bare suspicion, but something
less than a preponderance of the evidence.” United States v. Leedy, 65 M.J. 208,
213 (C.A.A.F. 2007). It relies on a “common sense decision” based on the total-
ity of the circumstances. Cowgill, 68 M.J. at 393 (C.A.A.F. 2010) (quoting
Leedy, 65 M.J. at 213) (citations and internal quotation marks omitted). As the
United States Court of Appeals for the Armed Forces (CAAF) explained in
Leedy,
       Thus, the evidence presented in support of a search need not be
       sufficient to support a conviction, nor even to demonstrate that
       an investigator’s belief is more likely true than false . . . ; there
       is no specific probability required, nor must the evidence lead
       one to believe that it is more probable than not that contraband
       will be present. . . . “The duty of the reviewing court is simply to
       make a practical, common-sense decision whether, given all the
       circumstances set forth in the affidavit . . . there is a fair proba-
       bility that contraband or evidence of a crime will be found in a
       particular place.”
       . . . [P]robable cause is founded not on the determinative features
       of any particular piece of evidence provided an issuing magis-
       trate . . . but rather upon the overall effect or weight of all factors
       presented to the magistrate.
Id. at 213 (third alteration in original) (citations omitted).
   3. False Information and Omissions
    Military Rule of Evidence 311 addresses a motion to exclude evidence ob-
tained from a search authorization that allegedly contains false information.
The rule provides:
       False Statements. If the defense makes a substantial prelimi-
       nary showing that a government agent included a false state-
       ment knowingly and intentionally or with reckless disregard for
       the truth in the information presented to the authorizing officer,
       and if the allegedly false statement is necessary to the finding of
       probable cause, the defense, upon request, shall be entitled to a
       hearing. At the hearing, the defense has the burden of establish-
       ing by a preponderance of the evidence the allegation of knowing
       and intentional falsity or reckless disregard for the truth. If the
       defense meets its burden, the prosecution has the burden of
       proving by a preponderance of the evidence, with the false infor-
       mation set aside, that the remaining information presented to


                                         23
                United States v. Garcia, Misc. Dkt. No. 2019-07


       the authorizing officer is sufficient to establish probable cause.
       If the prosecution does not meet its burden, the objection or mo-
       tion must be granted unless the search is otherwise lawful under
       these rules.
Mil. R. Evid. 311(d)(4)(B). This rule was adopted following Franks v. Delaware,
438 U.S. 154 (1978), in which the Supreme Court “expressed the view that the
best way to balance the need to protect the probable cause requirement with
society’s interest in discovering the truth was to delimit the circumstances
where affidavits might be challenged.” Cowgill, 68 M.J. at 391 (citing Franks,
438 U.S. at 165–71). “One explicit limitation was to allow review only in cases
where there is evidence of deliberate misstatements or reckless disregard for
the truth. ‘Allegations of negligence or innocent mistake are insufficient.’” Id.
(quoting Franks, 438 U.S. at 171).
     Although neither Mil. R. Evid. 311 nor Franks expressly extends to omis-
sions, the same general rationale for false statements extends to “material
omissions.” United States v. Mason, 59 M.J. 416, 422 (C.A.A.F. 2004). “[E]ven
if a false statement or omission is included in an affidavit, the Fourth Amend-
ment is not violated if the affidavit would still show probable cause after such
falsehood or omission is redacted or corrected.” Id. (quoting Gallo, 55 M.J. at
421).
   Therefore, for an accused to be entitled to relief due to matters not pre-
sented to the magistrate, the accused “must demonstrate that the omissions
were both intentional or reckless, and that their hypothetical inclusion would
have prevented a finding of probable cause.” Mason, 59 M.J. at 422 (citing
United States v. Figueroa, 35 M.J. 54, 56–57 (C.M.A. 1992)).
   4. Independent Source Doctrine
   Evidence obtained as the result of a Fourth Amendment violation must or-
dinarily be suppressed as if it were the proverbial “fruit of the poisonous tree.”
Wong Sun v. United States, 371 U.S. 471, 487–88 (1963). Such evidence, like
the fruit, is cast aside and “generally not admissible at trial.” United States v.
Conklin, 63 M.J. 333, 334 (C.A.A.F. 2006) (quoting Nardone v. United States,
308 U.S. 338, 341 (1939)).
   When evidence is initially discovered during, or as a consequence of, an
unlawful search, however, it may still be admissible if it is later obtained inde-
pendently from activities untainted by the initial illegality. See Murray v.
United States, 487 U.S. 533, 537 (1988); Silverthorne Lumber Co. v. United
States, 251 U.S. 385, 392 (1920). The ultimate question is whether such evi-
dence is derived from a genuinely independent source. Murray, 487 U.S. at
542; see generally United States v. Marine, 51 M.J. 425 (C.A.A.F. 1999) (citing
United States v. Williams, 35 M.J. 323 (C.A.A.F. 1992) (rejecting “per se or ‘but


                                       24
               United States v. Garcia, Misc. Dkt. No. 2019-07


for’ rule”)). The Government has the burden of proving by a preponderance of
the evidence that the evidence it seeks to admit “would have been obtained
even if the unlawful search or seizure had not been made.” Mil. R. Evid.
311(d)(5)(A).
    “The evil which the exclusionary rule is guarding against is the use of ille-
gally obtained information to support a search warrant.” United States v.
Moreno, 23 M.J. 622, 625 (A.F.C.M.R. 1986) (citing Wong Sun, 371 U.S. at 471).
“This goal of basing searches on untainted information is reached just as read-
ily when the magistrate is given only information which was known before the
illegal search as it is when the magistrate is given information which is discov-
ered later, but from a different source.” Id. This is because the independent
source doctrine recognizes the exclusionary rule should put “the police in the
same, not a worse, position than they would have been in if no police error had
occurred.” Nix v. Williams, 467 U.S. 431, 443 (1984) (citations and footnote
omitted).

                               IV. DISCUSSION
    The Government challenges the military judge’s granting of Appellee’s mo-
tion to suppress his DNA obtained from a buccal swab on 9 October 2019, which
was again sent to the USACIL and forensically analyzed by Mr. MT. The Gov-
ernment asserts the military judge erred in granting the Defense’s motion to
suppress this evidence.
   We analyze the military judge’s conclusion that a corrected affidavit would
not support a finding of probable cause as well as her conclusion that the sec-
ond search was derivative of the first. Based on our resolution of these issues,
our decision does not reach the applicability of the good faith exception to the
exclusionary rule or the inevitable discovery doctrine, which the military judge
found were unsupported by the evidence.
A. Probable Cause
    The military judge found “neither [A1C] JL nor SrA [CG] provide probable
cause to believe a crime had been committed” and thus the Government did
“not have probable cause to request a search authorization for the A[ppelee]'s
DNA.” We examine the information SA RD included in his affidavit and find
that along with Mr. MT’s affidavit, the military judge erred because the au-
thorizing official “had a substantial basis for concluding that probable cause
existed” to seize Appellee’s DNA. Nieto, 76 M.J. at 105 (quoting Rogers, 67 M.J.
at 164–65). Great deference is given to the probable cause determination,
Gates, 462 U.S. at 236, and the military judge erred in not giving the deference
that was due. Our examination of the affidavits lead us to conclude that the
authorizing official could find probable cause based on the following:


                                       25
                United States v. Garcia, Misc. Dkt. No. 2019-07


    SA RD averred A1C JL returned with Appellee and SrA CG to Appellee’s
apartment after a night of heavy drinking. Appellee expressed a sexual inter-
est in A1C JL as evident by his suggestion to SrA CG that “something could
happen,” and asked SrA CG about having a threesome. Appellee reportedly
nodded his head towards SrA CG and A1C JL as if to suggest they all should
go into the spare bedroom to have sex. A1C JL reported to the AFOSI agents
that she awoke two times during the night because she was interrupted by
Appellee before leaving the spare bedroom to sleep on a couch in the living
room.
    The first time A1C JL awoke, she recalled Appellee was on top of her “try-
ing to have sex,” and was putting his face on her neck and touching her stom-
ach. She positively identified Appellee by his appearance and voice. Although
she was uncertain of her state of undress or whether penetration occurred, her
suspicion that she may have been a victim of sexual assault was reinforced the
second time she awoke: her next memory after awakening at 0300 was stand-
ing naked with Appellee—a man with whom she never before has been inti-
mate—trying to get her to take a shower and he was angry when she refused.
SA RD relayed A1C JL told the AFOSI agents she “was scared [Appellee] was
trying to get rid of evidence that he had any sexual contact with [her].” Ulti-
mately, A1C JL’s suspicions were confirmed to some degree before SA RD
sought search authorization for Appellee’s DNA: the forensic medical exami-
nation and subsequent analysis by the USACIL revealed that A1C JL had se-
men from two men in her vagina. One of the men was SrA CG; the other man
was yet unidentified.
    We find the information provided to the search authorizing official supports
a “fair probability” that seizure of Appellee’s DNA would identify Appellee as
the unidentified male contributor. See Leedy, 65 M.J. at 213. This is so even if
SA RD properly conveyed A1C JL’s uncertainty whether penetration occurred
and if she was unclothed. See United States v. Bethea, 61 M.J. 184, 187
(C.A.A.F. 2005) (probable cause “does not demand any showing that such a
belief be correct or more likely true than false”); United States v. Garcia, 179
F.3d 265, 269 (5th Cir. 1999) (“[T]he requisite ‘fair probability’ is something
more than a bare suspicion, but need not reach the fifty percent mark.”).
    The information A1C JL relayed to the AFOSI agents was enough because
“[p]robable cause ‘is not a high bar.’” District of Columbia v. Wesby, 138 S. Ct.
577, 586 (2018) (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)). It
“does not require officers to rule out a suspect’s innocent explanation for sus-
picious facts.” Id. at 588. “[T]he relevant inquiry is not whether particular con-
duct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to partic-
ular types of noncriminal acts.” Id. (quoting Gates, 462 U.S. at 243 n.13). Ap-



                                        26
                 United States v. Garcia, Misc. Dkt. No. 2019-07


pellee’s physical proximity to A1C JL and “trying to have sex” with her, fol-
lowed by his anger when she refused to take a shower, resists Appellee’s inno-
cent explanation that he was looking for clothing as she slept and then tried to
get her to take a shower because she spilled beer on herself earlier in the even-
ing. A reasonable authorizing official could attach a degree of suspicion to Ap-
pellee’s acts and properly order the seizure of Appellee’s DNA to find evidence
that Appellee was the second of two contributors of male DNA that was found
in A1C JL’s body.
    With the issue of probable cause resolved, we nonetheless assume arguendo
that SA RD recklessly or deliberately left information out of his affidavit as
found by the military judge. Although the evidence of record raises questions
about the military judge’s factfinding, we need not decide whether her deter-
mination of SA RD’s intent was clearly erroneous. Instead, the issue that re-
solves the matter is one of law which we review de novo: 15 whether it was an
abuse of discretion for the military judge to find that inclusion of the omitted
information in a corrected affidavit would have extinguished probable cause.
See Mason, 59 M.J. at 422. We conclude that it was.
    The military judge applied an erroneously heightened legal standard for
probable cause, concluding the authorizing official was denied “the full picture
of evidence and information.” The military judge similarly erred finding the
Government “knew how imperative it was to provide a complete picture to the
search authority” as “the Government had already had the previous search of
[Appellee]’s DNA suppressed because of false statements [SA B] provided to
the search authority.” (Emphasis added). The military judge abused her dis-
cretion because an affidavit is not required to include “every piece of infor-
mation gathered in the course of an investigation.” United States v. Tate, 524
F.3d 449, 455 (4th Cir. 2008) (quoting United States v. Colkley, 899 F.2d 297,
300 (4th Cir. 1990)); see also United States v. Spinelli, 393 U.S. 410, 419 (1969)
(“[O]nly the probability, and not a prima facie showing, of criminal activity is
the standard of probable cause.”); United States v. Montieth, 662 F.3d 660, 665
(4th Cir. 2011) (“[T]o require that the affiant amass every piece of conceivable
evidence before seeking a warrant is to misunderstand the burden of probable
cause.”). The proper test under the circumstances is not whether investigators
provided the full and complete picture, but whether the omitted information
was “material,” see Mason, 59 M.J. at 422, that is, if it was “necessary to the
finding of probable cause.” Franks, 438 U.S. at 155–56.




15 See, e.g., United States v. Leedy, 65 M.J. 208, 212 (C.A.A.F. 2007) (citation omitted)
(“[W]e review the legal question of sufficiency for finding probable cause de novo using
a totality of the circumstances test.”).


                                           27
                 United States v. Garcia, Misc. Dkt. No. 2019-07


    Using “the totality-of-the-circumstances analysis” authorized by Gates, 462
U.S. at 233, we find the military judge erred because the omitted information
was not material or necessary, and a practical, common sense reading of a “cor-
rected” October 2019 affidavit supports a “fair probability,” Leedy, 65 M.J. at
213, that Appellee’s DNA would match the unidentified DNA found on A1C
JL’s vaginal swabs, even with the inclusion of information that was left out.
Guided by an incorrect view of the legal standard for probable cause, the mili-
tary judge’s ruling focused on four principal omissions that she found would
have extinguished probable cause if the information had been presented to the
search authorizing official. 16 We examine each omission in turn.
    The first and most significant to the military judge was the finding that SA
RD “failed to include [in his affidavit] that [A1C] JL told the SANE her clothing
was on.” Essential to this finding is the implicit finding that A1C JL awoke
just once, and that Appellee was on top of her and she was wearing clothes
when she did. However, when considered along with information in SA RD’s
affidavit, an alternative, even more likely, reading of the SANE report—cap-
tured in the nurse’s words, not A1C JL’s—is that A1C JL relayed waking up to
two separate altercations with Appellee, and not just one: the SANE relays
A1C JL’s account of the shower incident at 0300 hours, then back in time to
the sexual assault that preceded it, followed by a second reference to the
shower incident when A1C JL recalled being clothed when she awoke, and then
back in time again when A1C JL relates that she felt like she had sex.
    The error in factfinding is not that the military judge’s reading of the SANE
report differs from our own, but the supposition that if SA RD had included the
report in his affidavit, then the authorizing official would have reached the
same conclusion as the military judge—that A1C JL’s statement described
waking up just once to altercations with Appellee and not twice. A1C JL told
the nurse her clothing was on when she awoke at 0300; her next memory—as
relayed to the AFOSI agents—was of Appellee trying to make her take a
shower. That A1C JL may have been clothed later in the night just before the
shower incident does little to discount her statements to the AFOSI agents that
Appellee tried to have sex with her earlier as she slept when she was less cer-
tain if she was clothed. SA RD’s affidavit prepared with the assistance of a
judge advocate sufficiently captured A1C JL’s fragmented and inconsistent


16The military judge did not make a finding that any of the omitted information was
“material,” per se. See Mason, 59 M.J. at 422. We assume for purposes of this appeal
only, that the military judge erroneously reached the conclusion that it was; she found
the omitted “information, if included, would have affected the search authority’s find-
ing of probable cause because it would have extinguished probable cause.”




                                          28
                United States v. Garcia, Misc. Dkt. No. 2019-07


recollection about being clothed during the sexual assault. 17 SA RD’s failure to
include information that A1C JL relayed to the SANE was not consequential
to determining probable cause, and thus, the military judge erred in finding
that inclusion of the SANE’s narrative would have extinguished probable
cause.
    Second, we examine SA RD’s omissions that SrA CG disclosed to the AFOSI
agents that he observed Appellee and A1C JL were clothed when they came
into the living room after being alone together in the spare bedroom for ap-
proximately 10 to 20 minutes. The focus of the search authorizing official is
what happened inside the spare bedroom when Appellee was alone with A1C
JL, not what happened when they walked out. SrA CG’s statements to the
AFOSI agents have little bearing on what went on when Appellee and A1C JL
were alone on this or any other occasion during the evening in question, just
as A1C JL’s state of dress when she left the bedroom has little to no bearing
on whether she was vaginally penetrated without her consent.
    Third, we examine SA RD’s omission that SrA CG admitted to having sex
with A1C JL on the night in question in two separate AFOSI interviews, and
not just the second interview on 7 February 2019 that SA RD references in his
affidavit. We find the cumulative inclusion of the same information twice was
unnecessary and the omission did not diminish probable cause. An affiant is
not required to include every piece of information gathered in the course of an
investigation. Tate, 524 F.3d at 455 (citation omitted).
     Lastly, we consider SA RD’s omission that A1C JL mentioned that she lived
with her ex-boyfriend during the incident in question when she was inter-
viewed a second time by the AFOSI agents on 5 February 2019. The military
judge relied on this information to find that probable cause to believe that Ap-
pellee was the second source of DNA found on A1C JL’s vaginal swabs was
lacking. We also consider this finding along with the ex-boyfriend’s testimony
at a closed hearing that was convened before SA RD prepared his affidavit.
Despite the military judge’s conclusion to the contrary, it does not follow that
A1C JL’s living with an ex-boyfriend with whom she was, on unspecified occa-
sions, intimate, defeats probable cause. This is especially so because it was
little more than conjecture to find that the ex-boyfriend could be the second of


17 In her initial interview with the AFOSI agents, A1C JL “didn’t even know if [she]
had clothes on” and then recalled she “didn’t have any clothes on” when Appellee tried
to have sex with her. In a second interview, she recalled wearing a shirt, but was un-
sure if she also wore underwear or pants. This conflicting information relayed A1C
JL’s uncertainty about being clothed and was included in SA RD’s affidavit given to
the authorizing official.




                                         29
                United States v. Garcia, Misc. Dkt. No. 2019-07


two male contributors of DNA found in A1C JL’s body. Thus, the military
judge’s finding is not fairly supported by the record.
    We conclude that the hypothetical inclusion of the omitted information
would not have prevented a finding of probable cause if it had been presented
to the search authorizing official. Mason, 59 M.J. at 422. The totality of the
circumstances establish probable cause and the military judge abused her dis-
cretion in finding otherwise.
B. The Search and Seizure was not Derivative of Suppressed Evidence
    The military judge also suppressed Appellee’s DNA because she found the
second search in October 2019 was derived from the first and, therefore, was
fruit of the poisonous tree within the meaning of Wong Sun. The crux of her
ruling is that military personnel—judge advocates and investigators alike—
already knew Appellee’s DNA was present on A1C JL’s vaginal swabs when
they went to seize it again, and so the second search was fouled by knowledge
the Government acquired the first time it unlawfully obtained Appellee’s DNA.
Even so, we are convinced as a matter of law that the second search—approved
by an authorizing official with no prior involvement or knowledge of evidence
that had been suppressed—was not tainted or derivative of the first.
     Because the record establishes the fruits of the first search were found to
be unlawful and suppressed, the question to be resolved is whether the second
search was “come at by exploitation of that illegality or instead by means suf-
ficiently distinguishable to be purged of the primary taint.” Wong Sun, 371
U.S. at 488 (citation omitted). Evidence is not excluded where the connection
between unlawful government conduct and discovery and seizure of evidence
is “so attenuated as to dissipate the taint.” Nardone, 308 U.S. at 341. The “fruit
of the poisonous tree” doctrine has no application when the Government learns
about evidence from an independent source. Wong Sun, 371 U.S. at 487–88.
The ultimate question is whether such evidence is derived from a genuinely
independent source. Murray, 487 U.S. at 542.
    We find the military judge abused her discretion in finding the seizure of
Appellee’s DNA in October 2019 was not independent of knowledge the Gov-
ernment acquired from the first seizure in February that she suppressed. Upon
receipt of her first ruling, military personnel were aware of faults in the first
authorization. The flaws were not founded in the legality by which the AFOSI
agents obtained DNA from A1C JL and SrA CG or statements from witnesses,
but in SA B’s misrepresentation of facts to the first authorizing official who
relied on them to find probable cause. The military judge found “the Govern-
ment’s decision to seek a new search authorization” was prompted, inter alia,




                                       30
                United States v. Garcia, Misc. Dkt. No. 2019-07


by “having that [first] search suppressed.” 18 However, it was an erroneous view
of the law to conclude that military personnel, prompted by her adverse ruling
on challenged evidence, exploited the initial illegality. This is so because the
independent source doctrine recognizes the exclusionary rule should put “the
police in the same, not a worse, position than they would have been in if no
police error had occurred.” Nix, 467 U.S. at 443; see also Murray, 487 U.S. at
541 (“Invoking the exclusionary rule would put the police (and society) not in
the same position they would have occupied if no violation occurred, but in a
worse one.” (citing Nix, 467 U.S. at 443)). The facts SA B had misrepresented,
and the authorizing official who relied on them, played no part in the investi-
gation after the military judge granted Appellee’s first motion to suppress.
    Consequently, the information in SA RD’s affidavit that the Government
relies on in support of the second authorization is not tainted, and the military
judge’s finding to the contrary is clearly erroneous. Military personnel had un-
tainted knowledge that A1C JL’s vaginal swabs included semen from an uni-
dentified male contributor in addition to SrA CG whose semen was found in
her vagina. During their investigation, SA B and SA RD determined that the
only men who were present in Appellee’s apartment while A1C JL was passed
out drunk and asleep were Appellee and SrA CG. As previously described, Ap-
pellee had shown a sexual interest in A1C JL in his living room, and his con-
duct when he was alone with her in the spare bedroom and when she was na-
ked in the bathroom was not above suspicion. A1C JL awoke to someone trying
to have sex with her; she identified that person as Appellee from his voice and
face; she was concerned about what to do if she was pregnant “with him;” she
wanted a rape kit but was unfamiliar with the medical care she could receive
from TRICARE; and then she reported Appellee’s possible sexual assault to
her first sergeant.
    On these facts, it cannot be said that the Government exploited any illegal-
ity by pursuing a second search authorization that was independent of SA B’s
misrepresentations that initially resulted in suppression. See Wong Sun, 371
U.S. at 488. The military judge reached the opposite conclusion, erroneously
finding the Government failed to use an “untainted investigator” and an “un-
tainted analyst.” We consider each finding in turn.
  The military judge erroneously concluded SA B’s earlier actions tainted SA
RD. The military judge regarded SA B as though the agent herself was tainted,


18 The military judge’s conclusion that AFOSI agents were not “pursuing any leads
through a means untainted by the illegality” is inapposite as it was judge advocates
and not investigators who were working to determine the next steps. Government at-
torneys, not AFOSI special agents, spearheaded the effort that caused SA RD to reopen
the closed AFOSI investigation and seek a second authorization untainted by the first.


                                         31
                United States v. Garcia, Misc. Dkt. No. 2019-07


relying on the finding that “[t]he second search authorization was based on
information collected by SA [B] and SA [RD] together.” However, SA B alone
misinformed the first authorizing official and the information SA RD relayed
in his affidavit is independent of the initial illegality. The shortcoming of the
first search was the misinformation SA B relayed to the first authorizing offi-
cial, none of which SA RD repeated in his own affidavit. Thus, the military
judge clearly erred in finding SA B’s actions tainted SA RD.
    As found by the military judge, upon receiving Appellee’s DNA in buccal
swabs that were obtained from the second authorization, Mr. MT “conducted
an independent analysis to compare it to the previously submitted samples by
[A1C] JL and SrA [CG].” He then “generated a report that referenced back to
the original report,” and both reports relied on information that was sup-
pressed. The military judge found, “While Mr. [MT] conducted an independent
examination of the buccal swabs, the resulting test is certainly derivative of
the first, as evidenced from the reference to the original test and its results in
the report.” The military judge’s finding as to the derivative nature of the “re-
sulting test” is clearly erroneous because the military judge failed to properly
distinguish Mr. MT’s untainted, independent analysis on the one hand from
the later report he prepared on the other. Even though his 25 October 2019
report improperly compared untainted information against the first analysis
of Appellee’s DNA, which was maintained in the USACIL database and had
been suppressed, it does not follow that the analysis that the military judge
found to be “independent” was tainted by Mr. MT’s subsequent action in pre-
paring his report. The military judge clearly erred in finding Mr. MT’s second
analysis of Appellee’s DNA was derived from the first and thus tainted.
    Contrary to the military judge’s factfinding, there is no evidence in the rec-
ord that government attorneys or investigators sought to exploit SA B’s misin-
formation or their knowledge that Appellee’s DNA was present on A1C JL’s
vaginal swabs because of it. By pursuing the second authorization military per-
sonnel were simply starting anew “by means sufficiently distinguishable to be
purged of the primary taint.” Id. (citation omitted). The operative facts in SA
RD’s and Mr. MT’s affidavits were all in the possession of the authorities before
the fruit of the first search authorization that was suppressed, and those facts
constitute probable cause to support the second authorization. Appellee’s
Fourth Amendment rights were protected by the independent source require-
ment for obtaining a second search authorization. Ultimately, evidence from
the analysis of Appellee’s DNA came into the hands of the Government law-
fully and was independent of information obtained from the first seizure that
the military judge suppressed.
   The Government proved by a preponderance of the evidence that it pursued
admissible, forensically-sound evidence to determine if Appellee could be the


                                       32
                 United States v. Garcia, Misc. Dkt. No. 2019-07


source of the unidentified male DNA, and its pursuit was irrespective of infor-
mation derived from the February 2019 buccal and penile swabs that were
suppressed. Mil. R. Evid. 311(d)(5)(A) (the prosecution has the burden of prov-
ing evidence was not obtained as a result of an unlawful search or seizure). We
are convinced the October 2019 seizure of Appellee’s DNA is genuinely inde-
pendent of the knowledge military personnel acquired from the suppression of
the earlier seizure of his DNA. See Murray, 487 U.S. at 542. The military judge
abused her discretion in finding otherwise. 19

                                  V. CONCLUSION
   The appeal of the United States under Article 62, UCMJ, is GRANTED.
The military judge’s ruling to grant the defense motion to suppress evidence of
Appellee’s DNA seized by the Government on 9 October 2019 is REVERSED.
The record is returned to The Judge Advocate General for remand to the mili-
tary judge for action consistent with this opinion. 20


                   FOR THE COURT



                   CAROL K. JOYCE
                   Clerk of the Court




19Further, we note that suppression contravenes the exclusionary rule’s purpose of
ensuring the benefits of appreciable deterrence of future unlawful searches or seizures
outweigh the costs to the justice system. Mil. R. Evid. 311(a)(3). This purpose can be
assured by placing the Government and Appellee in the same positions they would
have been in had the impermissible conduct not taken place. This is because the inde-
pendent source doctrine recognizes the exclusionary rule should put “the police in the
same, not a worse, position than they would have been in if no police error had oc-
curred.” Nix, 467 U.S. at 443.
20Our decision does not undertake to resolve the admissibility of specific areas of tes-
timony of a witness or a particular report.


                                          33
