                                      IN THE CASE OF


                              UNITED STATES, Appellee

                                              v.


                       James R. CRAVENS, Staff Sergeant
                           U.S. Air Force, Appellant


                                       No. 01-0249


                                Crim. App. No. 33438

          United States Court of Appeals for the Armed Forces

                              Argued October 25, 2001

                               Decided March 25, 2002

      SULLIVAN, S.J., delivered the opinion of the Court, in which
       CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER, JJ., joined.

                                          Counsel

For    Appellant:    Captain Patricia A. McHugh (argued); Lieutenant Colonel
       Beverly B. Knott, Lieutenant Colonel Timothy W. Murphy, and Captain Karen
       L. Hecker (on brief); Colonel James R. Wise.



For Appellee:   Major Jennifer R. Rider (argued); Colonel Anthony P. Dattilo
     and Major Lance B. Sigmon (on brief).



Military Judge:     Howard P. Sweeney


           THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Cravens, 01-0249/AF


    Senior Judge SULLIVAN delivered the opinion of the Court.


    During June of 1998, appellant, an E-5, was tried by a

general court-martial composed of officer and enlisted members at

Travis Air Force Base in California.   He was charged with one

specification of wrongfully using methamphetamine, in violation

of Article 112a, Uniform Code of Military Justice, 10 USC § 912a.

He was found guilty of that offense and sentenced to a bad-

conduct discharge and reduction to E-4.   On November 2, 1998, the

convening authority approved this sentence as adjudged, and on

October 31, 2000, the Court of Criminal Appeals affirmed.

    This Court granted review in this case on May 25, 2001, on

two issues:

                             I.

          WHETHER THE MILITARY JUDGE ERRED IN
          DENYING APPELLANT’S MOTION TO SUPPRESS
          HIS HAIR DRUG TEST RESULTS WHEN THE OSI
          AGENTS PROVIDED FALSE AND MISLEADING
          INFORMATION TO THE MAGISTRATE AND WHEN
          THERE WAS A LACK OF PROBABLE CAUSE FOR
          THE SEARCH AUTHORIZATION.

                            II.

          WHETHER THE MILITARY JUDGE ERRED IN
          DENYING APPELLANT’S MOTION IN LIMINE TO
          SUPRESS THE HAIR TEST RESULTS BASED ON
          MIL.R.EVID. 401 AND 403, WHEN THE
          GOVERNMENT EXPERT WITNESS TESTIFIED THAT
          THERE WAS NO WAY TO DETERMINE WHICH PART
          OF THE HAIR CONTAINED THE ILLEGAL DRUG
          AND, THUS, WHEN APPELLANT ALLEGEDLY USED
          THE SUBSTANCE.



We hold that the military judge did not err when he admitted

evidence of drug tests performed on appellant’s hair showing the



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United States v. Cravens, 01-0249/AF


presence of methamphetamine.   See United States v. Allen, 53 MJ

402 (2000); see generally United States v. Bush, 47 MJ 305

(1997).



    The military judge made the following findings of fact and

conclusions of law concerning appellant’s motion to suppress the

results of the testing of his hair for traces of drugs:



          1. In the early morning hours of
          Tuesday, 1 April 1998, Deputy Ernesto
          Ramirez and Deputy Brian Bishop were on
          routine patrol in a high crime area of
          Whittier, CA. They were in uniform,
          driving a standard black and white
          police car. Deputy Ramirez was a
          training officer and Deputy Bishop was
          in a training status on that date.

          2. At approximately 0002 hours on 1
          April 1998, the Deputies saw a vehicle
          traveling in front of them with its
          license plate obstructed by a trailer
          hitch. This is a violation of
          California Vehicle Code Section 5201.
          Deputy Ramirez turned on his overhead
          lights in order to warn or cite the
          driver for the violation. The driver,
          later identified as the accused, SSGt
          James R. Cravens, pulled over.

          3. Deputy Ramirez approached the
          driver’s side of the vehicle and Deputy
          Bishop approached the passenger side.
          Immediately, Deputy Ramirez noticed a
          black colored fabric object bulging from
          beneath the accused’s open and
          unbuttoned shirt. He detained the
          accused to investigate his suspicion
          that the object was a firearm shoulder
          holster.

          4. During the investigation concerning
          the possession of the firearm, Deputy
          Ramirez noticed the accused was
          extremely nervous, that he constantly
          shifted his weight from side to side,


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United States v. Cravens, 01-0249/AF


          and that his speech was very rapid. The
          accused would continue to answer
          questions even after giving complete
          answers and he would voluntarily talk
          about subjects without being asked.
          Deputy Ramirez also noticed his
          attention seemed to be divided. Based
          on Deputy Ramirez’s training, knowledge,
          and experience in detecting symptoms of
          drug use, these objective observations
          gave him a reasonable suspicion that the
          accused was under the influence of a
          stimulant.

          5. Based on his objective reasonable
          suspicion that the accused was under the
          influence of a stimulant, Deputy Ramirez
          lawfully detained the accused for
          further investigation. He asked the
          accused if he was using any prescription
          medication. The accused stated he was
          not.

          6. Deputy Ramirez then began to conduct
          the field tests to determine if the
          accused was under the influence of a
          stimulant. These tests were conducted
          on the side of a public road while the
          accused was standing outside of his
          vehicle. While doing the light
          accommodation test, the accused
          volunteered, “If you want to know if I
          did some dope, I did a line earlier,” or
          words to that effect. Deputy Ramirez
          noticed the accused had little or no
          reaction to light and his pupils were
          dilated to approximately 7.5mm using a
          pupilometer.

          7. The accused was then seated in the
          back of the patrol car while Deputy
          Ramirez checked his pulse. His pulse
          was measured at 129 beats per minute.
          The accused was not in custody, nor had
          he been placed under arrest. The
          accused was not in handcuffs during
          these tests.

          8. After this investigation, Deputy
          Ramirez believed he had probable cause
          to arrest the accused for violations of
          the California Health and Safety Code.
          The accused was arrested for a violation
          of section 11550(A), use of a controlled


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United States v. Cravens, 01-0249/AF


          substance, a misdemeanor offense, and a
          violation of section 11550(E), being
          under the influence of a controlled
          substance while in the possession of a
          firearm, a felony offense.

          9. The accused was booked into the Pico
          Rivera Sheriff’s Station. During the
          booking process, the accused was given
          the opportunity to provide a urine
          specimen to prove or disprove the
          presence of a stimulant or illegal
          narcotic in his body. The accused was
          informed that if he refused to submit to
          a urine test, his refusal would be used
          against him in a court of law showing
          consciousness of guilt. In response to
          the request, the accused stated, “I’m
          fucked if I do and I’m fucked if I
          don’t.” He then decided to refuse to
          submit a urine specimen.

          10. Within the drug culture, “doing a
          line” means segregating a small pile of
          powdered drugs, typically cocaine or
          methamphetamine into lines approximately
          one to two inches long. Typically a
          razor blade, credit card, or other like
          object is used to form the “line” and
          the user will snort the substance
          through the nostrils with a straw or
          other cylindrical object.

          11. There are many different means of
          using methamphetamine. A user can heat
          the substance and smoke the fumes,
          usually through a glass pipe of some
          sort; a user can heat the substance to a
          liquid form, then inject it; a user can
          snort the powdered form of the substance
          as described above, or in some cases a
          user can ingest the substance in a pill
          form. The most common means of using
          methamphetamine in southern California
          is to snort the substance.

          12. Methamphetamine and most stimulants
          are generally detectable in urine up to
          72 hours after ingestion. However, hair
          serves as a repository for drugs,
          metabolites, vitamins, and other
          substances delivered by the blood to the
          hair. These substances are principally
          deposited in the internal portion of the


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United States v. Cravens, 01-0249/AF


          hair, known as the cortex. The forensic
          acceptability of hair testing relies on
          the same science, an immunoassay and gas
          chromotography/mass spectrometry (GC/MS)
          analysis, as tests for drugs in other
          body fluids and tissues. The substances
          and their metabolites can be detected in
          hair samples approximately seven days
          after ingestion and will remain present
          as long as the hair remains.

          13. Generally, a GC/MS analysis will
          detect chronic or repetitive use of a
          substance. However, depending on
          several factors including dose, it is
          scientifically possible to test for a
          single use, but a positive result is not
          guaranteed. A positive hair drug test
          indicates that the person used the
          substance on at least one occasion, but
          does not discriminate between the number
          of uses. A negative hair drug test may
          indicate that the person did not use the
          substance (within a time frame
          consistent with the length of hair) or
          it may indicate that the accused used a
          small enough dose of the substance that
          it would not be detected.

          14. On 4 April 1997, SA Ernest
          Slatinsky and SA Scott Burris, AFOSI Det
          110, Los Angeles AFB CA, were first
          notified of the accused’s arrest. SA
          Slatinsky was informed that no urine
          sample had been taken from the accused.
          Based on his experience and the passage
          of time, he felt probable cause for a
          urinalysis was lacking. Using AFOSI
          training materials (Atch 2), SA
          Slatinsky knew that hair samples
          retained evidence of drug use longer
          than urine. SA Slatinsky knew that a
          positive result was not guaranteed, but
          knew the science could, depending on the
          circumstances, detect a single use. SA
          Burris was under the impression that a
          hair test would test positive for a
          single use.

          15. On 28 April 1997, SA Ernest
          Slatinsky, AFOSI Det 110, Los Angles AFB
          CA, prepared an affidavit outlining the
          facts and circumstances surrounding the



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United States v. Cravens, 01-0249/AF


          traffic stop of the accused on 1 April
          1997. (Atch 1, Defense Motion)

          16. SA Slatinsky, SA Burris and Captain
          O’Conner, an attorney with the Los
          Angeles AFB legal office, personally
          presented this affidavit to Colonel John
          P. Caldwell, the Military Magistrate.
          Colonel Caldwell used a checklist
          created by the Staff Judge Advocate’s
          office to assist him in determining if
          probable cause existed (Atch 4). During
          this meeting, Colonel Caldwell asked
          questions of the special agents directly
          from the checklist. He then asked
          questions related to the affidavit.
          Colonel Caldwell may have taken notes of
          this discussion, but destroyed the
          notes.

(Emphasis added.) (R. 278) (A.E. XIV)



    The military judge made additional findings of fact and

conclusions of law on this motion.   (R. 279)   He found:



          1. Neither Special Agent Slatinsky nor
          Special Agent Burris intentionally or
          with reckless disregard made the
          affidavit misleading. Nor do I find
          that the statements in Special Agent
          Slatinsky’s affidavit that “drug
          metabolites can be detected in hair
          samples after approximately seven days
          of ingestion and will remain present as
          long as the hair remains” is misleading.

          While I was concerned by the level of
          professional competence displayed by
          Special Agents Slatinsky and Burris and
          was disturbed by the lack of
          thoroughness or attention to detail that
          they exhibited, I judged that their
          errors and mistakes, which interfered
          with their preparedness to testify at
          this trial and accurately report what
          occurred, was due to inexperience and
          insufficient training and insufficient
          supervision rather than any intentional
          misconduct on their part. Special Agent


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United States v. Cravens, 01-0249/AF


          Slatinsky’s testimony that his failure
          to discuss his view of the likelihood of
          detecting a single use of
          methamphetamine by hair testing was an
          oversight is unfortunately very credible
          and consistent with his failure to take
          notes at the search authorization
          meeting, forgetting that he could ask
          National Medical Services to segment the
          hair and not recalling the questions
          that he was asked or to discuss the
          issues with his forensic consultant.

          2. The fact that Special Agent
          Slatinsky did not tell the search
          authority that he personally believed
          that there was a “slim chance” that the
          hair sample would test positive did not
          taint the validity of the affidavit nor
          did it take away from the validity of
          Colonel Caldwell’s search authorization.

          3. Colonel Caldwell presented very
          forceful and clear testimony reflecting
          that he fulfilled his role as a neutral
          and detached magistrate and that his
          decision was clearly his own after
          asking responsible questions,
          considering the OSI and JA advisor’s
          views and then making a personal
          decision. Also he had a very good sense
          of what probable cause was and his role
          in the process. He is clearly an
          independent thinker who rendered his
          personal judgment as he was required to
          do so. He was convinced that the
          evidence of the accused’s use of an
          illegal substance could be found in the
          accused's hair.

          4. Doctor Robertson’s testimony clearly
          reflected that the defense’s position
          that the search authority was misadvised
          as to the capability of the science of
          hair testing to detect a single use of
          methamphetamine and that Special Agent’s
          [sic] Slatinsky’s failure to segment the
          hair samples or to request segmentation
          was a fatal flaw in the search
          authorization are not correct.

          5. The government’s use of hair sample
          drug testing to corroborate the
          accused’s admissions to the police


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United States v. Cravens, 01-0249/AF


            officers and to determine what, if any,
            contraband substances he may have
            ingested or consumed was reasonable
            under the totality of the circumstances
            and did not represent an arbitrary or
            unreasonable violation of the accused’s
            privacy rights.

            As conclusions of law, I specifically
            adopt the prosecution’s statements of
            law numbered 18 through 32 in Appellate
            Exhibit XIV and I conclude that the
            government has met its burden on this
            motion by more than a preponderance of
            the evidence.

(Emphasis added.)


                                  _ _ _ _

    Appellant’s basic contention on this appeal is that

scientific evidence showing a sample of his hair tested positive

for methamphetamine should not have been admitted at his court-

martial.    He makes two distinct arguments supporting his

position.    First, he argues that the sample of hair, which was

tested by the Government, was unlawfully seized from him without

probable cause to believe it contained evidence of drug use.             See

Mil.R.Evid. 311(g)(2), Manual for Courts-Martial, United States

(1995 ed.).1    Second, he asserts that the Government failed to

show the positive test results were relevant and reliable

evidence showing drug use during the time period charged and,

therefore, this evidence was inadmissible under Mil.R.Evid. 401

and 403.    We conclude that the military judge did not err by




1 All Manual provisions are cited to the version in effect at the time of
appellant’s court-martial. The current version is identical, unless otherwise
indicated.


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United States v. Cravens, 01-0249/AF


admitting this hair analysis evidence in this case.       See

generally United States v. Bush, 47 MJ at 305.



                                   I

   Appellant initially contends that the military judge erred

when he denied the defense’s motion to suppress evidence that a

sample of appellant’s hair, seized by the Government, tested

positive for methamphetamine.     He argues that he showed by a

preponderance of the evidence that information provided as the

basis for authorizing this seizure and search was at least

recklessly false and misleading.       He also contends that “[t]he

prosecution failed to rebut the defense evidence or to show the

validity and sufficiency of the rest of the information in the

affidavit.”   Final Brief at 6.    For both these reasons, he

asserts the scientific evidence pertaining to the seized hair

should have been excluded.   See Mil.R.Evid. 311(g)(2); Franks v.

Delaware, 438 U.S. 154 (1978).     Finally, appellant argues that,

even assuming the evidence presented to the magistrate in this

case was true, it did not provide a substantial basis for the

magistrate’s conclusion that probable cause existed to seize and

test his hair.   See Mil.R.Evid. 311(g)(1) and 315(f).



    Appellant particularly asserts in his brief that SA Slatinsky

misled the magistrate, Colonel Caldwell, in three different

matters:



           First, the OSI agent specifically did
           not tell the military magistrate that


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United States v. Cravens, 01-0249/AF


          the hair testing would not detect a one-
          time use of methamphetamine, which was
          the crime OSI was investigating.

                              * * *

          Second, the OSI agents affirmatively
          misled the military magistrate with
          their list of cases where “hair testing
          has been upheld in State, Federal and
          Military Courts.”

                              * * *

          Third, the affidavit claims that hair
          testing has been “accepted by the
          scientific and legal communities” as
          cited in several articles.

Final Brief at 7,9, and 10.    Appellant implies that the obviously

critical nature of both the purported omission and false

information indicates that SA Slatinsky “provided false

statements to the military magistrate with at least reckless

disregard for the truth.”   Id. at 13; see United States v. Jones,

208 F.3d 603, 607 (7th Cir. 2000) (to show reckless disregard for

truth, the defense must offer evidence that affiant in fact

entertained serious doubts about the truth of his allegations or

had obvious reasons to doubt the veracity of the allegations).



    Mil.R.Evid. 311(g)(2) essentially codifies the Supreme Court

decision in Franks v. Delaware, supra.    It states:


            (2) False statements. If the defense
          makes a substantial preliminary showing
          that a government agent included a false
          statement 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


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United States v. Cravens, 01-0249/AF


          to a hearing. At the hearing, the
          defense has the burden of establishing
          by a preponderance of the evidence the
          allegation of knowing and intentional
          falsity or reckless disregard for the
          truth. If the defense meets it burden,
          the prosecution has the burden of
          proving by a preponderance of the
          evidence, with the false information set
          aside, that the remaining information
          presented to the authorizing officer is
          sufficient to establish probable cause.
          If the prosecution does not meet its
          burden, the objection or motion shall be
          granted unless the search is otherwise
          lawful under these rules.

(Emphasis added.)



    Appellant has asked this Court to relitigate the question of

SA Slatinsky’s state of mind, i.e., did he knowingly and

intentionally, or with reckless disregard for the truth, mislead

the military magistrate that a single use of drugs could be

detected by hair analysis and that scientific and legal

authorities supported the admission of such evidence?   See

generally United states v. Colkley, 899 F.2d 297, 300-03 (4th

Cir. 1990).   This was a question of fact for the trial judge.

See United States v. Allen, 53 MJ at 408; United States v. Mick,

263 F.3d 553, 564 (6th Cir. 2001).   The military judge resolved

this question adversely to the defense (R. 278), and his ruling

is supported by evidence in the record.   See United States v.

Colkley, supra at 301.



    In this regard, we note that the Government introduced

evidence that one-time drug use could actually be detected by

hair analysis, albeit under certain limited circumstances. (R.


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United States v. Cravens, 01-0249/AF


227-28)   It also introduced evidence that SA Slatinsky was

generally aware of this possibility but he did not think it was

necessary to inform the magistrate of it.          It further introduced

evidence that this agent mistakenly failed to request

segmentation, which was the scientific prerequisite for detection

of one-time use. (R. 181, 187-88, 196, 198)           Finally, the

Government introduced evidence that he relied on materials he

received in training as the basis for the scientific and legal

representations he made in his affidavit. (R. 179-80)             In these

circumstances, we conclude that appellant has failed to show the

military judge’s factfinding as to SA Slatinsky’s state of mind

was clearly erroneous.      See United States v. Mick, supra; cf.

United States v. Whitely, 249 F.3d 614, 621-24 (7th Cir. 2001);

see generally United States v. Photogrammetric Data Services,

Inc., 259 F.3d 229, 238 (4th Cir. 2001) (mere negligence in

recording facts in supporting affidavit is not sufficient to

establish Franks violation).2



    Turning to appellant’s second argument, he contends that,

accepting as true the information provided to the military

magistrate, there was no substantial basis for his conclusion

that probable cause existed to seize his hair on April 29, 1997.

We note, however, that there was evidence appellant admitted




2 This case illustrates well why federal military and civilian systems of
justice grant deference to search authority provided by detached magistrates,
such as Colonel Caldwell, who are prepared to put law enforcement affiants to
the test.


                                      13
United States v. Cravens, 01-0249/AF


using drugs to a police officer on April 1, 1997.     There was also

evidence that appellant exhibited a demeanor consistent with drug

use at that time.     Finally, there was evidence presented to the

military magistrate that “drug metabolites can be detected in

hair samples after approximately seven (7) days of ingestion and

will remain present as long as the hair remains.”     (Statement of

Probable Cause April 28, 1997) (A.E. XIII Attachment 1)      This

information constituted a legally sufficient basis for finding

probable cause, as defined in Mil.R.Evid. 315(f)(2) and our case

law.     See United States v. Prouse, 945 F.2d 1017, 1024 (8th Cir.

1991); see generally United States v. Hall, 50 MJ 247, 249 (1999)

(“Probable cause to search exists when there is a reasonable

belief that the . . . evidence sought is located in the place or

on the person to be search[ed].”).



                                  II

    Appellant also asserts that the results of hair analysis

tests for drugs in his case were inadmissible under Mil.R.Evid.

401 and 403.     He notes that he was charged with using

methamphetamine on or about April 1, 1997, but his 3-centimeter

hair sample was not taken until April 29, 1997, and it was not

segmented.     He asserts therefore that a positive test result for

his hair sample indicated only drug use at some unspecified point

within four to five months preceding April 29, 1997.       Final Brief

at 16.     Accordingly, he argues that such hair analysis evidence

was not relevant to show his charged use of methamphetamine on or

about April 1, 1997.     See Mil.R.Evid. 401.



                                  14
United States v. Cravens, 01-0249/AF




      Appellant was charged with using methamphetamine between “on

or about 28 February 1997 and on or about 1 April 1997.”

Evidence of his admission on April 1, 1997, to “doing a line” was

admitted in this case, as well as evidence of a police officer’s

observations of his demeanor at that time also suggesting recent

drug use.    Scientific evidence further indicating drug use which

was proximate in time to the charged use is, at the very least,

relevant to corroborate his confession.    See United States v.

Hall, supra at 251-52 (evidence of positive urinalysis three

months after confessed use is sufficient corroboration of

confession).

      An additional argument appellant made at trial was that due

to the above time-of-use problem, the challenged hair analysis

evidence was too confusing for admission at this court-martial.

See Mil.R.Evid. 403. (R. 262, 266)    On appeal, however, he

asserts that “the nebulous nature of the tests conducted in

Appellant’s case and the variation in test ‘results’ that can be

reported by a laboratory calls into question the validity of the

‘science’ implemented in Appellant’s case.”    Final Brief at 16-

17.    He contends the tests were nebulous because “there is no

cutoff process to determine whether a result is positive.

Instead, that is left of the discretion (guesswork) of the

forensic toxicologist looking into the case.”    Id. at 16.    He now

argues that such dubious scientific evidence should also have

been excluded under Mil.R.Evid. 403.




                                 15
United States v. Cravens, 01-0249/AF


    Appellant cites no legal authority for his attack on the

scientific validity of hair analysis for determining the presence

of contraband drugs.   See Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993).   Moreover, in United States v. Bush,

this Court held that an appellate court is not an appropriate

place to relitigate a motion to admit such expert testimony, and

we refused to determine de novo the reliability of hair analysis

evidence admitted by the judge in that case.    47 MJ at 305.

Appellant essentially makes the same request on this appeal under

the guise of Mil.R.Evid. 403.   Moreover, evidence was admitted in

this case of a reporting limit set by the National Medical

Services which undermines the key factual component of his

scientific validity argument.   (R. 383-86)    Appellant has not

demonstrated that the reporting limit established by NMS was too

low or otherwise unreliable.    Finally, we note that the military

judge specifically considered and admitted this hair analysis

evidence under Mil.R.Evid. 401 and 403, and we are not convinced

that he abused his discretion in this regard.    (R. 279)   See id.

at 312.



    The decision of the United States Air Force Court of Criminal

Appeals is affirmed.




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