                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                  Terrence A. BETHEA, Master Sergeant
                       U.S. Air Force, Appellant

                                No. 05-0041

                          Crim. App. No. 35381


       United States Court of Appeals for the Armed Forces

                          Argued April 11, 2005

                          Decided June 23, 2005

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

                                  Counsel

For Appellant: Captain Christopher S. Morgan (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, Major Sandra K.
Whittington, and Major James M. Winner (on brief)

For Appellee: Major Carrie E. Wolf (argued); Lieutenant Colonel
Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and Major
Kevin P. Steins (on brief)

Military Judge:     David F. Brash


  This opinion is subject to revision before final publication .
United States v. Bethea, No. 05-0041/AF


       Chief Judge GIERKE delivered the opinion of the Court.

       Appellant’s urine sample tested positive for the metabolite

of cocaine.    A military magistrate then issued a search

authorization to seize a hair sample from Appellant to test it

for evidence of drug use.       We conclude that the search

authorization was supported by probable cause.

                                 BACKGROUND

      Appellant was tried by a general court-martial for a single

specification alleging use of cocaine on divers occasions

between January 17, 2001, and February 16, 2001.      Following a

contested trial, the members found Appellant guilty as charged

of violating Article 112a, Uniform Code of Military Justice

(UCMJ).1    A key piece of evidence against Appellant was the

result of a hair analysis that indicated multiple uses of

cocaine.    The admissibility of that evidence is the subject of

this appeal.

       On February 7, 2001, Appellant provided a urine sample as

part of a random drug test.       His urine sample contained 238

nanograms per milliliter of the cocaine metabolite; the

Department of Defense’s (DOD’s) cutoff for a “positive” test

result is 100 nanograms per milliliter.

       Following this positive urinalysis result, an Air Force

Office of Special Investigations (OSI) agent interviewed


1
    10 U.S.C. § 912a (2000).

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United States v. Bethea, No. 05-0041/AF


Appellant, who denied that he had knowingly used cocaine.        OSI

Special Agent (SA) Michael Tanguay then sought authorization to

seize a hair sample from Appellant for further testing.      He

presented an affidavit to Yokota Air Base’s primary magistrate,

Colonel Dale A. Hess.      The affidavit described the results of

Appellant’s urinalysis.      It stated next that, based on SA

Tanguay’s training and information gathered from a forensic

science consultant and the National Medical Services Laboratory,

“affiant believes trace amounts of cocaine may be trapped in the

cortex of BETHEA’s hair follicles.”       The affidavit then went

into greater detail to support that conclusion, explaining that:

           a. As the blood circulates through the body, it
      nourishes the hair follicle.    If there are drugs in
      the blood, trace amounts of the drug become trapped in
      the internal portion of the hair, known as the cortex.
      Those traces remain in the hair as it grows out from
      the body. These are not removed with routine hygienic
      washings nor are they flushed out. Thus, chronic drug
      use, as well as a binge use of a drug, can be detected
      for a period of up to several months, depending on the
      length of the hair sample.

     The affidavit also described the scientific tests used to

analyze hair for evidence of drug use.      The affidavit then

compared urine testing with hair testing:

            c.  While urine tests can determine whether a
      drug was used at least once within the recent past,
      hair analysis potentially provides information on a
      binge use or chronic drug use ranging from months,
      depending on the length of the hair and the type of
      hair.

           d.     Hair analysis is not subject         to false
      negatives   due to temporary abstention or       excessive


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United States v. Bethea, No. 05-0041/AF


      fluid intake.    It is currently accepted that hair
      records drug use in chronological manner and in
      relative proportion to the amount consumed.       The
      National Medical Services Laboratory can distinguish
      between   heavy,   medium  and   light   drug  users.
      Consequently, such hair analysis may be used to prove
      binge use as well as multiple and/or chronic use of
      controlled substances.

     After spending approximately fifteen minutes with SA

Tanguay, the military magistrate issued an authorization to

seize from Appellant “[b]odily hair for the purposes of drug

testing.”    The resulting analysis indicated that Appellant had

used cocaine on multiple occasions.

     At trial, the defense moved to suppress the results of the

hair analysis.     The defense argued that the authorization to

seize Appellant’s hair was not supported by probable cause.

     During the suppression hearing, the military magistrate who

authorized the search took the stand.          Colonel Hess testified

that “in my mind there was no doubt” probable cause existed.            He

stated that he was not “concerned about binge use.          I was

concerned about the fact that [Appellant] came up positive on

urinalysis and I wanted confirmation.”          He testified that “I

knew . . . that the hair test would confirm whether or not he

had used cocaine.”     He indicated that this conclusion was

“[b]ased on previous knowledge and experience” that the

affidavit “confirmed.”

     During the suppression hearing, OSI Special Agent (SA)

Shannon Nuckols also testified.           SA Nuckols was one of six OSI


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United States v. Bethea, No. 05-0041/AF


forensic science consultants.        SA Nuckols testified that he did

not know if hair analysis can detect “a specific single use.”

But, SA Nuckols testified, a hair analysis will indicate

“multiple uses over a period of time.”          He later clarified that

“binge or chronic use . . . would show up in hair.”          He defined

binge use as “numerous uses over a short period of time, 12, 24,

36 hours.”    SA Nuckols also testified that “a positive

urinalysis doesn’t necessarily show a single use.          You can get

multiple uses that show up in a urinalysis.”          While SA Nuckols

was on the stand, the military judge said, “I want to move back

from the science a little bit and just talk sort of logic or

common sense.    Somebody pops positive on a urinalysis 30 days

ago, is there a fair shot hair is going to be able to detect

some drug?”    SA Nuckols answered, “Yes, Sir.”

       On cross-examination, the defense established that SA

Nuckols had previously testified at the Article 32 investigation2

that “a single small use” of cocaine would not be detected by

hair analysis.     SA Nuckols then expanded, “[M]y experience and

training is if I had to choose between the two methods,

urinalysis and hair, if you’re looking for a single use,

urinalysis would be better.       And that typically hair shows

chronic uses -— multiple uses.”           SA Nuckols also agreed with the

military judge that based on the DOD cutoff levels, a positive


2
    See Article 32, UCMJ, 10 U.S.C. § 832 (2000).

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United States v. Bethea, No. 05-0041/AF


urinalysis is “equally consistent with the tail end of a binge

use or . . . a very small use [a] short time prior to submission

of the sample.”

        The military judge denied the motion to suppress.    He

concluded that “the positive urinalysis alone, coupled with the

information available to the magistrate, more than adequately

demonstrates a reasonable likelihood that cocaine or a cocaine

derivative will be found in the accused’s hair,” especially

because the seizure would occur “within a month of the alleged

use.”    The military judge concluded that evidence derived from

seizing the hair was admissible “even if the Magistrate operated

under the assumption that the accused had only used cocaine on

one occasion approximately two weeks before the requested

search.”    The military judge concluded that the “[m]agistrate

relied upon information he had been provided which suggests that

drug hair testing can detect a single drug use, albeit

characterized as ‘binge.’”       The military judge then observed

that he was “convinced that it is more than reasonable to

assume, based upon the contents of the affidavit, that hair drug

testing can detect a . . . single drug use if the hair test is

performed within two months of the alleged use, regardless of

how that use may be characterized.”3



3
  We caution that we express no opinion as to the correctness of
the military judge’s interpretation of “binge” or the accuracy

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United States v. Bethea, No. 05-0041/AF


     The military judge also found that “there was no evidence

whatsoever, either direct or circumstantial,” that the

requesting agents had intentionally or recklessly withheld

relevant information from the military magistrate.    The

military judge then repeated that a hair analysis can detect

“binge use,” which “can reasonably mean one or a series of large

doses.”   He concluded that SA Nuckols’s testimony and the

affidavit itself “clearly” indicate that “a single use of

cocaine can be detected by hair testing, particularly when the

hair is seized within several months of the alleged use.”

     The military judge also concluded in the alternative that,

even if the search authorization had not been supported by

probable cause, the evidence would be admissible under the good

faith exception to the exclusionary rule.

     The Air Force Court of Criminal Appeals affirmed the

military judge’s ruling in an unpublished opinion.4   The Air

Force Court ruled that Appellant’s urinalysis results were

“sufficient to establish a ‘fair probability’ that the

appellant’s hair would contain evidence of cocaine use.”5    The

Air Force Court also agreed with the military judge that

regardless of whether the authorization was supported by



of the military judge’s characterization of the ability of hair
analysis to detect a single use of a controlled substance.
4
  United States v. Bethea, No. ACM 35381, 2004 CCA LEXIS 175,
2004 WL 1725024 (A.F. Ct. Crim. App. July 20, 2004).
5
  2004 CCA LEXIS 175, at *5, 2004 WL 1725024, at *2.

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United States v. Bethea, No. 05-0041/AF


probable cause, the evidence would be admissible because the OSI

agents who seized Appellant’s hair sample “acted in ‘objectively

reasonable reliance’ upon the magistrate’s facially valid search

authorization.”6

                                 DISCUSSION

     This case concerns whether Appellant’s urinalysis results

provided probable cause to support the seizure of a sample of

his hair.

     The affidavit presented to the military magistrate

established that Appellant’s urine contained the metabolite that

the body produces following the use of cocaine.      Neither

Appellant’s results in particular, nor positive urinalysis

results in general, suggest whether the individual used a

controlled substance once or more than once.      So Appellant’s

urinalysis results were equally consistent with a single use of

cocaine or with multiple uses.

     The affidavit that was before the military magistrate

indicated only that hair analysis would detect “binge” or

“chronic” use of a drug.       Yet the military magistrate suggested

and the military judge expressly stated that they believed hair

analysis could detect a single use of cocaine.      To decide this

case, we need not engage in a semantic analysis of the meaning


6
  2004 CCA LEXIS 175, at *5-*6, 2004 WL 1725024, at *2 (citing
United States v. Pond, 36 M.J. 1050, 1059 (A.F.C.M.R. 1993)).



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United States v. Bethea, No. 05-0041/AF


of “binge.”    Even if that term is properly understood to refer

only to multiple uses, we conclude for the reasons set forth

below that Appellant’s urinalysis results provided probable

cause to seize a sample of his hair.

     A military judge’s determination of whether probable cause

existed to support a search authorization is reviewed for an

abuse of discretion.7      “The duty of a reviewing court is simply

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

conclud[ing] that probable cause existed.”8      “In reviewing

probable cause determinations, courts must look at the

information made known to the authorizing official at the time

of his decision.     The evidence must be considered in the light

most favorable to the prevailing party.”9

     “Probable cause to search exists when there is a reasonable

belief that the person, property, or evidence sought is located

in the place or on the person to be search[ed].”10     The test for

probable cause is whether, under the “totality of the

circumstances,” the magistrate had a “substantial basis” for

determining that probable cause existed.11     A probable cause

determination is a “practical, common-sense decision whether,


7
   United States v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001).
8
   Id. (alternations in original) (internal citations and internal
quotation marks omitted).
9
   Id. (internal citation omitted).
10
    Military Rule of Evidence 315(f)(2).
11
    Illinois v. Gates, 462 U.S. 213, 230, 239 (1983).



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United States v. Bethea, No. 05-0041/AF


given all the circumstances set forth in the affidavit before

him, including the ‘veracity’ and ‘basis of knowledge’ of

persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found

in a particular place.”12

     The Supreme Court has emphasized that “probable cause is a

flexible, common-sense standard.”13       A probable cause

determination merely requires that a person “of reasonable

caution” could believe that the search may reveal evidence of a

crime; “it does not demand any showing that such a belief be

correct or more likely true than false.”14       So even though

“people often use ‘probable’ to mean ‘more likely than not,’

probable cause does not require a showing that an event is more

than 50% likely.”15


12
   Id. at 238.
13
   Texas v. Brown, 460 U.S. 730, 742 (1983).
14
   Id. (emphasis added) (quoting Carroll v. United States, 267
U.S. 132, 162 (1925)).
15
   United States v. Olson, No. 03-CR-51-S, 2003 U.S. Dist. LEXIS
24607, at *16, 2003 WL 23120024, at *5 (W.D. Wis. July 11, 2003)
(citing United States v. Garcia, 179 F.3d 265, 269 (5th Cir.
1999)). See also Ostrander v. Madsen, Nos. 00-35506, 00-35538,
00-35541, 2003 U.S. App. LEXIS 1665, at *8, 2003 WL 193565, at
*2 (9th Cir. Jan. 28, 2003) (“Probable cause is met by less than
a fifty percent probability, so that even two contradictory
statements can both be supported by probable cause.”); Samos
Imex Corp. v. Nextel Communications, Inc., 194 F.3d 301, 303
(1st Cir. 1999) (“The phrase ‘probable cause’ is used, in the
narrow confines of Fourth Amendment precedent, to establish a
standard less demanding than ‘more probable than not.’”); United
States v. Burrell, 963 F.2d 976, 986 (7th Cir. 1992) (“‘Probable
cause requires more than bare suspicion but need not be based on
evidence sufficient to support a conviction, nor even a showing

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United States v. Bethea, No. 05-0041/AF


     When evaluated under this standard, the affidavit provided

the military magistrate with a substantial basis for concluding

that there was probable cause to authorize the seizure of

Appellant’s hair.     The urinalysis results were consistent with,

though not necessarily indicative of, multiple uses of cocaine.

The information presented to the military magistrate indicated

that an analysis of Appellant’s hair would detect multiple uses

of cocaine.    So it was as likely as not that evidence of cocaine

use would be found in Appellant’s hair.    That degree of

likelihood more than satisfies the probable cause standard.

     In light of our holding that there was a substantial basis

for finding probable cause, we need not consider whether the

military judge and the Air Force Court were correct when they

determined that even absent probable cause, the evidence would

have nevertheless been admissible under the exclusionary rule’s

good faith exception.




that the officer’s belief is more likely true than false.’”)
(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949));
United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987) (“In order
to establish probable cause, it is not necessary to make a prima
facie showing of criminal activity or to demonstrate that it is
more probable than not that a crime has been or is being
committed.”) (internal quotation marks and citation omitted).




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United States v. Bethea, No. 05-0041/AF


                                  DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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