                          UNITED STATES, Appellee

                                         v.

                  Eddie J. ROGERS, Technical Sergeant
                       U.S. Air Force, Appellant

                                  No. 08-0518

                           Crim. App. No. 36768

       United States Court of Appeals for the Armed Forces

                         Argued December 3, 2008

                        Decided January 22, 2009

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel

For Appellant: Captain Lance J. Wood (argued); Major Shannon A.
Bennett (on brief); Lieutenant Colonel Mark R. Strickland.

For Appellee: Captain G. Matt Osborn (argued); Colonel Gerald
R. Bruce and Captain Ryan N. Hoback (on brief); Major Donna
Rueppell.


Military Judge:    Donald Plude




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rogers, No. 08-0518/AF


     Judge BAKER delivered the opinion of the Court.

     A court-martial composed of members convicted Appellant,

contrary to his pleas, of wrongfully using cocaine on divers

occasions, in violation of Article 112a, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 912a (2000).   The adjudged

and approved sentence consisted of six months confinement, a bad

conduct discharge, and reduction to E-4.   The United States Air

Force Court of Criminal Appeals affirmed after modifying the

findings and reassessing the sentence.    United States v. Rogers,

No. ACM 36768, 2008 CCA LEXIS 64 at *9, 2008 WL 514227 at *3

(A.F. Ct. Crim. App. Feb. 27, 2008).   We granted review of the

following issue:

     WHETHER THE MILITARY JUDGE ERRED IN DENYING
     APPELLANT’S MOTION TO SUPPRESS HIS HAIR TEST RESULTS.

The question presented is whether probable cause existed to

issue the search authorization.   For the following reasons, we

affirm.

                              FACTS

     In his Findings and Conclusions re:   Defense Motion to

Suppress Seizure of Hair (Jan. 31, 2006) (Findings/Conclusions),

the military judge made the following findings of fact, in

relevant part:

     2. On 28 Apr 05, a document turned up missing in the
     Command Support Section of the 29th Intelligence
     Squadron. . . . When SrA [T] called the accused later



                                  2
United States v. Rogers, No. 08-0518/AF


     that morning, he told her to come to his house because
     he wanted to talk to her.

     3. SrA [T] arrived at the accused’s off-base home
     around 1310 hours on 28 Apr. After discussing the
     missing document for a while, SrA [T] alleges the
     accused offered her cocaine, used cocaine himself,
     offered her money for sexual intercourse, grabbed her
     hand and rubbed it on his penis, and exposed his penis
     to her . . . .

     4. Sometime after returning to her office, SrA [T]
     talked to SSgt McElvaine about what happened at the
     accused’s house. . . .

     5. . . . [O]n 28 Apr, SrA [T]’s first sergeant called
     Special Agent Brian McPherson and informed him of SrA
     [T]’s allegations against the accused, including the
     drug allegations. Agent McPherson interviewed SrA [T]
     the following morning [on 29 Apr]. Following that
     interview, SrA [T] prepared and signed under oath a 5-
     page statement regarding the events of 28 Apr 05. In
     the statement . . ., she stated she saw the accused
     snort three lines of white powder . . . . About five
     minutes after using the powder, she said the accused
     started sweating and talking more rapidly and became
     sexually aggressive toward her. She also told Agent
     McPherson the accused . . . informed her he got in
     trouble at his last base for drug use but got out of
     it . . . . SrA [T] also said the accused told her he
     wasn’t worried about a urinalysis because he took a
     special drink to clean out his system.

     6. Since SrA [T] was alleging she was the victim of
     an indecent assault, Agent McPherson treated her as a
     victim, consistent with OSI policy, rather than as an
     informant and accepted what she told him as true. . .
     . Based on everything he knew about the case, Agent
     McPherson believed SrA [T]’s account of what occurred
     at the accused’s house was credible.

     7. . . . Agent McPherson interviewed the accused
     under rights advisement on 2 May. The accused waived
     his rights and made a written statement in which he
     denied SrA [T]’s allegations. The accused also agreed
     to provide a urine sample for drug testing . . . . On



                                3
United States v. Rogers, No. 08-0518/AF


     17 May 05, word was received that the accused’s urine
     sample tested negative for cocaine.

     8. . . . In discussing the matter with [Special]
     Agent [Jeremy] Gage[, OSI’s Forensic Science
     Consultant], Agent McPherson told him everything he
     knew about the case. Agent Gage told him the chances
     of finding traces of cocaine in the accused’s hair was
     likely if the accused was a chronic user and if he
     consumed a considerable amount of the drug. . . .
     Agent Gage advised [Agent] McPherson that he believed
     there was probable cause for doing a hair analysis.

     9. On 13 Jun, Agent McPherson discussed whether there
     was probable cause for a hair analysis with Capt
     Sheila Stoffel, Staff Judge Advocate for the 70th
     Intelligence Wing. She opined there was. Thereafter,
     Agent McPherson prepared an affidavit to present to a
     military magistrate to obtain a search authorization
     for the hair analysis. This was the first time Agent
     McPherson had been involved in obtaining a search
     authorization. Consequently, he prepared the
     affidavit . . . with the assistance of the OSI
     detachment’s OIC . . . . However, neither ran the
     finished affidavit by the legal office . . . .

     10. Col Wayne McCoy, the 70th Operations Group
     commander, was the military magistrate who approved
     the search authorization at issue. Agent McPherson
     met with him on 20 Jun 05 and gave him the affidavit .
     . . after being sworn to it. The affidavit didn’t
     include some important information that was then known
     by Agent McPherson. Specifically, it didn’t note that
     a court-martial at Maxwell AFB had acquitted the
     accused in Apr 04 of using cocaine; nor did it mention
     that the accused gave a urine sample on 2 May 05 that
     later tested negative for cocaine and that he denied
     the allegations made by SrA [T]. However, Agent
     McPherson testified that he orally discussed all these
     matters with Col McCoy. Col McCoy testified that
     Agent McPherson orally summarized the affidavit and he
     asked the agent about the Maxwell urinalysis and some
     other questions, but he recalls few other specifics of
     what they discussed. Although the defense has sought
     to attack the credibility of Agent McPherson, the
     Court finds his testimony credible and finds that he



                                4
United States v. Rogers, No. 08-0518/AF


     orally informed Col McCoy of the previously noted
     details that were missing from the affidavit.

     11. . . . Col McCoy had a general knowledge of hair
     testing from some scientific reading he did on the
     subject in the late 1980s. Specifically, he knew that
     the military was pursuing other scientific means for
     testing for drugs and that hair and fingernails were
     believed to retain evidence of drug use for a much
     longer period of time than urine.

     12. Although Col McCoy didn’t have any information on
     the background or qualifications of Agent Gage, he was
     aware that OSI agents assigned as forensic science
     consultants are considered as experts on . . . DNA and
     hair testing. Consequently, he gave Agent Gage’s
     opinion . . . a lot of weight.

     13. At the end of the meeting with Agent McPherson on
     20 Jun 05, Col McCoy signed a written authorization to
     take body hair from the accused for drug testing. On
     21 Jun 05, . . . a technician . . . cut pieces of hair
     from under the accused’s armpits. On 28 Jun 05, that
     hair was sent to a laboratory . . . for drug testing.
     Subsequent tests of the accused’s hair indicated the
     presence of cocaine.

     Appellant argues that probable cause did not exist because

the affidavit was inadequate, Senior Airman (SrA) T’s veracity

went unchecked, and Colonel (Col) McCoy acted as a rubber stamp

magistrate.   In addition, at oral argument Appellant attacked

the credibility of Agent McPherson by emphasizing Col McCoy’s

testimony that he believed that Agent McPherson held the rank of

major because “[h]e told me he was a [m]ajor.”1   Based on this




1
  The exchange between defense counsel and Col McCoy proceeded as
follows:



                                 5
United States v. Rogers, No. 08-0518/AF


statement, Appellant argues that the affidavit as a whole is

incredible and the military judge abused his discretion in

finding that the totality of the circumstances supported

probable cause.

                              ANALYSIS

     A military judge reviews a magistrate’s decision to issue a

search authorization to determine whether the magistrate had a

substantial basis for concluding that probable cause existed.

United States v. Bethea, 61 M.J. 184, 187 (C.A.A.F. 2005).     A

magistrate has a substantial basis to issue a warrant when,

based on the totality of the circumstances, a common-sense

judgment would lead to the conclusion that there is a fair

probability that evidence of a crime will be found at the

identified location.   Illinois v. Gates, 462 U.S. 213, 238

(1983); United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F.


     [Defense Counsel]: Now when you met with Agent
     McPherson, what was your understanding of his position
     at the detachment?

     [Col McCoy]:   That he was the commander of the OSI
     detachment.

     [Defense Counsel]:    And what was your impression of
     his rank then?

     [Col McCoy]:   He’s a Major.       He told me he was a
     Major.

     [Defense Counsel]:    He did at the time he met with
     you?

     [Col McCoy]:   Yes.

                                    6
United States v. Rogers, No. 08-0518/AF


2007).   In light of the constitutional preference for warrants,

substantial deference is afforded in cases where a magistrate

determines that probable cause exists.       Gates, 462 U.S. at 237.

     We review a military judge’s ruling on a motion to suppress

for an abuse of discretion.   United States v. Ayala, 43 M.J.

296, 298 (C.A.A.F. 1995).   An abuse of discretion exists if the

military judge found clearly erroneous facts or misapprehended

the law.   Leedy, 65 M.J. at 213.       Further, we review the facts

in the light most favorable to the prevailing party below.        Id.

     On the one hand, the magistrate had access to a litany of

facts that could support a finding of probable cause.       First,

there is the statement of SrA T, as reported in the affidavit.

SrA T informed the Office of Special Investigations (OSI) that

she witnessed Appellant engage in criminal conduct in his own

residence.   Among other things, SrA T stated, as quoted in the

affidavit, that “[s]he witnessed [Appellant] inhale the ‘lines’

of ‘powder’ through his nose” and Appellant “also informed [SrA

T that] he got in trouble for drug use at his last assignment

but got out of it.”   Notably, the amount of cocaine in question

was suggestive of frequent or binge use.       As to SrA T’s

credibility, OSI viewed SrA T as both a witness and a victim; in

such a case, OSI policy infers the truth of the allegations.

     Further, there is evidence in the affidavit supporting the

veracity and basis of knowledge of SrA T’s statements.         Bethea,


                                    7
United States v. Rogers, No. 08-0518/AF


61 M.J. at 187.    SrA T was not an informant, but a witness, and

therefore the Government carried no burden to demonstrate her

reliability beyond that generally required of any witness.

United States v. Martinelli, 454 F.3d 1300, 1307 (11th Cir.

2006); 2 Wayne R. LaFave, Search and Seizure § 3.4(a), at 225

(4th ed. 2004).    In any event, corroboration of SrA T’s veracity

exists.    For example, SrA T was aware of Appellant’s 2004 court-

martial charges and she described a scar on Appellant’s stomach,

neither of which were a matter of general knowledge within the

squadron.2    SrA T’s knowledge of these personal matters were

corroborated before submission of the affidavit, tending to

demonstrate SrA T’s veracity.    Moreover, SrA T made these

statements in person.     OSI agents therefore had the opportunity

to evaluate her credibility firsthand.    The affidavit further

supported the veracity of SrA T’s statements by acknowledging




2
    Agent McPherson had the following exchange with trial counsel:

       [Agent McPherson]: . . . [SrA T] was able to identify
       certain features about the accused.

       [Trial Counsel]:   Such as?

       [Agent McPherson]: Such as -- such as him getting in
       trouble at Maxwell for a similar situation. Such as,
       him having a scar on his stomach that he received from
       surgery. When I spoke with the accused he -- when
       asked about distinguishing marks, features on his
       body, he said, “Yes I do have a scar on my stomach”
       that he obtained from surgery.

                                     8
United States v. Rogers, No. 08-0518/AF


that she promptly reported the incident to her chain of command

and that her statements remained consistent.

     Second, Agent McPherson briefed Col McCoy for about twenty-

five to thirty minutes, and although Col McCoy had a poor

recollection of the details, he remembered discussing the case

with Agent McPherson.   Third, an OSI forensic science consultant

confirmed that Appellant’s hair would likely reveal traces of

cocaine “if he is a chronic user, and if he consumed a

considerable amount” of cocaine.       Finally, the magistrate had

personal knowledge of drug testing techniques and analysis from

his time at Goodfellow Air Force Base.

     On the other hand, circumstances exist in this case that

could undercut a finding of probable cause.      First, the

affidavit presented to the magistrate did not include all

potentially relevant facts.   Specifically, the affidavit failed

to include facts indicating that:      Appellant was SrA T’s

supervisor; Appellant had previously disciplined SrA T; SrA T

could have motive to lie; Appellant offered to take a urinalysis

and this test came back negative; Appellant denied SrA T’s

allegations; and this was Agent McPherson’s first affidavit.

The affidavit also omitted any discussion of the science

surrounding hair testing and that hair testing could be used to

prove binge use.   Second, the affidavit arguably did not




                                   9
United States v. Rogers, No. 08-0518/AF

sufficiently link Appellant’s alleged crime with the assertion

that evidence of that crime would be found in Appellant’s hair.

        Based on the totality of circumstances, we conclude that

the military judge did not abuse his discretion in upholding the

search authorization in this case.     To the extent this case

presents a close call, we note that “‘[c]lose calls [are to] be

resolved in favor of sustaining the magistrate’s decision.’”

United States v. Monroe, 52 M.J. 326, 331 (C.A.A.F. 2000)

(citation omitted).    While the affidavit could have included the

information identified above, the affidavit contained enough

evidence to establish probable cause to seize Appellant’s body

hair.    Most notably, the affidavit detailed SrA T’s statements,

as a victim and witness, regarding her encounter with Appellant

at his home.    Further, Agent McPherson briefed the magistrate on

some, if not all, of the information omitted from the affidavit.

In light of the record and uncertain recollections of the

actors, the military judge did not erroneously conclude that Col

McCoy knew about Appellant’s previous acquittal in April 2004,

that Appellant denied SrA T’s allegations, and that Appellant’s

most recent urine sample had tested negative.

Findings/Conclusions para. 10.

        Moreover, based on the record as a whole, the military

judge’s conclusion that Agent McPherson did not “attempt . . .

to knowingly or intentionally mislead the magistrate” is not


                                  10
United States v. Rogers, No. 08-0518/AF

clearly erroneous.   Id. at para. 18.   At oral argument,

Appellant drew attention to Col McCoy’s testimony that “[Agent

McPherson] told [Col McCoy] he was a Major.”   If indeed Agent

McPherson impersonated an officer, it would, among other things,

undercut the credibility of his affidavit.   However, in our

view, and the view of the military judge, the record is not as

clear cut as Appellant argues.    First, SrA T’s statements, as

conveyed to multiple witnesses, are granular and credible,

independent of what Agent McPherson did or did not say to Col

McCoy about his military grade.    Second, the record as a whole

reflects that Col McCoy and Agent McPherson had uncertain and

differing recollections as to what was said during an initial

introductory meeting and the June 20, 2005, session.   In fact,

the defense counsel never asked Agent McPherson whether he

recalled telling Col McCoy his pay grade, while the affidavit

correctly identified Agent McPherson as a “Special Agent” in the

Air Force OSI.   On this record, a military judge might well

conclude that Col McCoy’s testimony was the product of differing

and failing recollections.   Moreover, the military judge, having

observed the witnesses in this case, found that Agent McPherson

was credible and this conclusion is not clearly erroneous.

     Finally, a sufficient nexus existed between the alleged

crime and the seizure of Appellant’s hair.   Col McCoy relied on

his “general knowledge of hair testing” and knew that “the


                                  11
United States v. Rogers, No. 08-0518/AF

detection time of drugs in the body is somewhat limited.”

Findings/Conclusions paras. 11, 18; see also Military Rule Of

Evidence (M.R.E.) 315(f)(2)(C) (a probable cause determination

can be based on “[s]uch information as may be known by the

authorizing official”).   Col McCoy also considered the advice of

the OSI forensic science consultant who possessed knowledge of

hair analysis.   Findings/Conclusions para. 12.   As such,

sufficient facts existed “to support a reasonable belief that

testing [Appellant’s] body hair would yield evidence of his use

of cocaine.”   Id. at para. 19.

                            CONCLUSION

     The military judge did not err in denying Appellant’s

motion to suppress.   The decision of the United States Air Force

Court of Criminal Appeals is affirmed.




                                  12
