                          UNITED STATES, Appellee

                                         v.

                  James A. Cowgill, Staff Sergeant
                      U.S. Air Force, Appellant

                                  No. 09-0376

                          Crim. App. No. S31404

       United States Court of Appeals for the Armed Forces

                         Argued November 4, 2009

                          Decided March 5, 2010

BAKER, J., delivered the judgment of the Court, in which RYAN,
J., joined. STUCKY, J., filed a separate opinion concurring in
the result. ERDMANN, J., filed a separate opinion concurring in
part and dissenting in part, in which EFFRON, C.J., joined.

                                     Counsel

For Appellant: Captain Michael S. Kerr (argued); Captain
Tiffany M. Wagner and Major Shannon A. Bennett (on brief).

For Appellee: Lieutenant Colonel Jeremy S. Weber (argued);
Colonel Douglas P. Cordova and Gerald R. Bruce, Esq. (on brief).


Military Judge:    Nancy J. Paul




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cowgill, No. 09-0376/AF


     Judge BAKER delivered the judgment of the Court.1

     A special court-martial composed of a military judge alone

convicted Appellant, pursuant to his conditional pleas, of two

specifications of wrongful use of controlled substances and one

specification of possession of marijuana, in violation of

Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 912a (2000).   Appellant was sentenced to a bad-conduct

discharge, confinement for two months, and reduction to the

grade of E-1.    The convening authority approved the findings and

sentence, and the United States Air Force Court of Criminal

Appeals affirmed.   United States v. Cowgill, No. ACM S31404

(A.F. Ct. Crim. App. Dec. 10, 2008).     We granted review on the

following assigned issue:

     WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN
     DENYING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE
     FROM APPELLANT’S HOME.

Whether the military judge abused her discretion depends on

whether there was a substantial basis for the civilian

magistrate to find probable cause.      The answer hinges on two

questions about which this Court is twice divided.     First, did

Detective (Det.) Gary Krause provide erroneous information

contained within the search warrant affidavit in reckless

1
 We heard oral   argument in this   case at Fort Campbell, Kentucky,
as part of the   Court’s “Project   Outreach.” This practice was
developed as a   public awareness   program to demonstrate the
operation of a   federal court of   appeals and the military justice
system.

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United States v. Cowgill, No. 09-0376/AF


disregard for the truth?   Second, if so, was there nonetheless

sufficient independent information contained within the

affidavit to provide a substantial basis to find probable cause?

For the reasons set forth below, a majority of this Court

concludes that there was a substantial basis to find probable

cause.   Therefore, the military judge did not abuse her

discretion, the evidence was properly admitted and the case is

affirmed.

                            BACKGROUND

     On January 5, 2007, Air Force Office of Special

Investigations (OSI) Special Agent (SA) Adrianna Vorderbruggen

contacted Det. Gary Krause, a member of the Tacoma Police

Department, for assistance in obtaining a search warrant.    SA

Vorderbruggen told Det. Krause that an unnamed source had

witnessed Appellant smoking marijuana three times during

December 2006 and smelled marijuana in Appellant’s off-base home

on various occasions during 2006.    Additionally, she said that

Appellant’s roommate tested positive on a urinalysis test.   The

two investigators talked for approximately fifteen to twenty

minutes and had no follow-up conversations.   Det. Krause then

verified the address and description of the house provided by

the source.

     That same day, Det. Krause prepared an affidavit, including

this information, and presented it to a civilian magistrate to


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United States v. Cowgill, No. 09-0376/AF


obtain a search warrant for drugs at Appellant’s off-base

residence.   Det. Krause did not contact OSI to review the

content of the affidavit.    Among other things, the affidavit

Det. Krause originally submitted to the magistrate stated:

     The last time the source smelled marijuana was on
     the 28th of December. The source smelled
     marijuana on other occasions spread out over the
     course of 2006. In accordance with Air Force
     guidelines, OSI obtained a urinalysis from one of
     the two named subjects which came back positive
     for the presence of marijuana.

When the magistrate asked for corroboration for the unnamed

source’s statements, Det. Krause told him that the urinalysis

test was done as a result of the source’s information.   He did

not verify this information with OSI.    Det. Krause amended the

affidavit by hand to read:   “Based upon the source’s information

+ In [sic] accordance with Air Force guidelines, OSI obtained a

urinalysis from one of the two named subjects which came back

positive for the presence of marijuana.”

     These statements were factually incorrect, but believed to

be true by the detective at the time.    The urinalysis test was

actually conducted pursuant to a unit sweep in August 2006.

Additionally, Det. Krause told the magistrate that it was

unusual that the source was reporting through OSI and that he

had no direct contact with the source.   Det. Krause received and

executed the warrant, finding approximately three grams of

marijuana when searching Appellant’s home.   Appellant moved to


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United States v. Cowgill, No. 09-0376/AF


suppress the evidence, and, after losing the motion, he entered

a conditional guilty plea for possession.

     The military judge subsequently found that the magistrate:

     issued a warrant for the Accused’s residence based, in
     part, on erroneous information. . . . [A] crucial
     factor in his decision to issue the warrant was that a
     urinalysis had been conducted with positive results
     for the marijuana metabolite based on information from
     this source. In addition, he was also told that the
     OSI was requesting the warrant based, in part, on the
     positive urinalysis result. It appears that this
     false information was important to the [sic] Judge
     Chushcoff in determining whether probable cause
     existed. If not provided this incorrect information,
     a finding may possibly have been that probable cause
     did not exist.

However, the military judge concluded there was no evidence that

the detective “made these statements with reckless disregard for

the truth.”   Finally, the military judge concluded that “Despite

the erroneous information mistakenly provided to the Judge,

there still remained a substantial basis for determining the

existence of probable cause.”

                             ANALYSIS

     The Fourth Amendment requires that “no Warrants shall

issue, but upon probable cause.”       U.S. Const. amend. IV.   A

military judge’s decision to find probable cause existed to

support a search authorization as well as to admit or exclude

evidence is reviewed for an abuse of discretion.      United States

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

Carter, 54 M.J. 414, 418 (C.A.A.F. 2001). “An abuse of


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United States v. Cowgill, No. 09-0376/AF


discretion occurs if the military judge’s findings of fact are

clearly erroneous or if the decision is influenced by an

erroneous view of the law.”    United States v. Quintanilla, 63

M.J. 29, 35 (C.A.A.F. 2006).   “In reviewing a ruling on a motion

to suppress, we consider the evidence in the light most

favorable to the prevailing party.”   United States v. Reister,

44 M.J. 409, 413 (C.A.A.F. 1996) (quotation marks omitted).

     The military judge would not have abused her discretion

when denying the motion to suppress if the magistrate had a

“substantial basis” for determining that probable cause existed.

United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007) (citing

Illinois v. Gates, 462 U.S. 213, 236 (1983)).   Probable cause

exists when there is sufficient information to provide the

authorizing official “a reasonable belief that the person,

property, or evidence sought is located in the place or on the

person to be searched.”   Military Rule of Evidence (M.R.E.)

315(f)(2).

     Appellant argues that absent the false information

regarding the timing and predicate of the roommate’s urinalysis,

the affidavit depended on the uncorroborated information of an

unnamed source.   Appellant acknowledges that Gates replaced the

“veracity-knowledge” test from Aguilar v. Texas, 378 U.S. 108,

113-14 (1964), and Spinelli v. United States, 393 U.S. 410, 415-

16 (1969), with a more contextual “totality of the


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United States v. Cowgill, No. 09-0376/AF


circumstances” approach.   See Gates, 462 U.S. at 230.    However,

Appellant correctly argues that Gates did not replace the need

for the Government to show some concrete indicia of reliability

before reliance is placed on a confidential informant.    Absent

such indicia, the affidavit was “facially deficient” and the

conclusion regarding the source’s “reliability” conclusory.

     The Government acknowledges that certain information

provided by Det. Krause was erroneous.   However, the Government

argues that the confidential informant’s information was

otherwise corroborated by the roommate’s urinalysis results, if

not the date of and predicate for the test, and was otherwise

relevant to a probable cause finding.    In addition, while

acknowledging that the Gates totality of the circumstances test

still requires indicia that an informant is reliable, the

Government finds that reliability in the granular and specific

nature of the informant’s input.

           I.    Treatment of the Erroneous Information

     As a threshold question, and in light of the erroneous

information contained within the affidavit, this Court must

determine what information should be reviewed to determine

whether or not a substantial basis for finding probable cause

was present.    In reviewing probable cause determinations, this

Court examines the information known to the magistrate at the

time of his decision, and the manner in which the facts became


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United States v. Cowgill, No. 09-0376/AF


known.   Bethea, 61 M.J. at 187; Leedy, 65 M.J. at 214.    However,

in Gallo, this Court stated that “when there are misstatements

or improperly obtained information, we sever those from the

affidavit and examine the remainder to determine if probable

cause still exists.”   United States v. Gallo, 55 M.J. 418, 421

(C.A.A.F. 2001); see also United States v. Mason, 59 M.J. 416,

422 (C.A.A.F. 2004).

     Gallo ultimately derives from Franks v. Delaware, in which

the U.S. Supreme Court stated:

     [W]here the defendant makes a substantial preliminary
     showing that a false statement knowingly and
     intentionally, or with reckless disregard for the
     truth, was included by the affiant in the warrant
     affidavit, and if the allegedly false statement is
     necessary to the finding of probable cause, the Fourth
     Amendment requires that a hearing be held at the
     defendant’s request. In the event that at that
     hearing the allegation of perjury or reckless
     disregard is established by the defendant by a
     preponderance of the evidence, and, with the
     affidavit’s false material set to one side, the
     affidavit’s remaining content is insufficient to
     establish probable cause, the search warrant must be
     voided and the fruits of the search excluded to the
     same extent as if probable cause was lacking on the
     face of the affidavit.

438 U.S. 154, 155-56 (1978).   Franks focused on whether the

veracity of a warrant affidavit can be challenged by the

defendant to quash the admission of seized evidence at trial.

Id. at 155.   In that context, the Supreme Court expressed the

view that the best way to balance the need to protect the



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United States v. Cowgill, No. 09-0376/AF


probable cause requirement with society’s interest in

discovering the truth was to delimit the circumstances where

affidavits might be challenged.   Id. 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. at 171.   This rule and procedure was then

adopted in M.R.E. 311(g)(2), which states that at a hearing

reviewing whether probable cause existed for a search warrant

“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.”   M.R.E. 311(g)(2).

     The operative language of Franks varies in nuance from that

of Gallo.    While Gallo addresses “misstatements” or “improperly

obtained information,” Franks focuses on “misstatements” made

knowingly or “reckless disregard for the truth.”   However, the

underlying corrective principle is the same.    “[I]f, when

material that is the subject of the alleged falsity or reckless

disregard is set to one side, there remains sufficient content

in the warrant affidavit to support a finding of probable cause,

no hearing is required.”   Franks, 438 U.S. at 171-72.   Moreover,

to the extent there is a distinction between Gallo and Franks in

what triggers the corrective principle, it is not essential




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United States v. Cowgill, No. 09-0376/AF

here, for in the judgment of a majority of the Court, the

affidavit was provided with reckless disregard for the truth.

     Det. Krause’s affidavit states, “Based upon the source’s

information [and i]n accordance with Air Force guidelines, OSI

obtained a urinalysis from one of the two named subjects which

came back positive for the presence of marijuana.”   Both parties

agree that the reason for and the implicit time period of the

urinalysis test was incorrectly stated to the magistrate.    The

military judge found that the “erroneous information [was]

mistakenly provided to the Judge.”    She further found that the

magistrate judge relied on these statements.

     The military judge found no evidence that the factual

errors were intentional.   In fairness to the participants, it is

also clear from the record that the detective and the OSI

investigators could not recall the precise detail of their oral

communication.    Nonetheless, in our view it was reckless in the

context of this case for the local detective not to validate the

affidavit and its contents with the OSI before submitting it to

the magistrate.

     Some courts have stated that a reckless disregard for the

truth occurs when the affiant “had obvious reasons to doubt the

veracity of the allegations.”   E.g., United States v. Jones, 208

F.3d 603, 607 (7th Cir. 2000) (quotation marks and citations

omitted).   Other courts have adopted similar definitions as well


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United States v. Cowgill, No. 09-0376/AF

as additional definitions to address different contexts.      Thus,

the United States Court of Appeals for the Third Circuit has

adopted the language of the United States Court of Appeals for

the Eighth Circuit in concluding that “omissions are made with

reckless disregard if an officer withholds a fact in his ken

that ‘any reasonable person would have known that this was the

kind of thing the judge would wish to know.’”   Wilson v. Russo,

212 F.3d 781, 788 (3d Cir. 2000) (quoting United States v.

Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993)).    Generally,

regardless of specific definitions, reckless disregard requires

something more than negligence.    However, the distinction

between mere negligence and reckless disregard can be opaque in

this area of the law, requiring judges to discern the difference

between that which is flagrant versus that which merely breaches

a duty of care.   The task is made no easier by the equally

opaque manner in which courts have distinguished between

intentional misstatements and a reckless disregard for the truth

based on “serious doubts as to the truth.”   Jones, 208 F.3d at

607.

       The circumstances of this case do not fit neatly into an

existing case law rubric involving either omissions or

assertions.   The detective did not withhold knowledge about the

roommate’s urinalysis nor is there reason to believe he had

serious doubts about what he said about the urinalysis.    Indeed,


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United States v. Cowgill, No. 09-0376/AF

the record reflects that he acted in good faith.    The concern in

this case is procedural.   The question is whether the detective

was merely negligent or reckless in not doing more to confirm

the affidavit facts in this specific context.

     To start, as noted by the detective himself, it was unusual

and out of the ordinary for an affiant to rely on a confidential

informant without first having direct contact with that source.

Nor did the detective have information regarding the nature of

the source, including his military status.    In addition, the

detective told the magistrate that this informant was different

than the ones he normally brought to court who typically would

have been vetted using reliability buys.    Thus on guard, the

detective would have been better served to review the affidavit

with the OSI before submitting it to the magistrate.    However,

when the magistrate specifically asked the detective about

corroboration and the “hot urinalysis” it was imperative that

the detective get the facts right.    This was not only “the kind

of thing the judge would wish to know”; he specifically wanted

to know.   At this point, if not before, it was reckless not to

validate the facts with the OSI.     Moreover, the record reveals

no urgency or exigent circumstance that precluded the detective

from doing so.   Det. Krause’s lack of information about both the

informant and the urinalysis test created obvious reasons for




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United States v. Cowgill, No. 09-0376/AF

him to doubt the assertions he made in court, and demonstrate a

reckless disregard for the warrant process.

     Our determination that the information in question was

provided recklessly is a fact-specific holding.    In our view,

the unusual circumstances surrounding the informant, the

magistrate’s specific question about the predicate for the

roommate’s urinalysis, and the obvious importance of the answer

to the magistrate’s probable cause determination, moved this

case from the negligent to the reckless.   Having concluded that

the information in question was provided in reckless disregard,

consistent with Gallo and Franks we will sever that information

from the affidavit and determine whether sufficient information

remained in order for the magistrate to find probable cause.

     II.   Was There Nonetheless a Substantial Basis to
           Find Probable Cause?

     Probable cause relies on a “common-sense decision whether,

given all the circumstances . . . there is a fair probability

that contraband” will be found.    Leedy, 65 M.J. at 213 (quote

marks omitted) (quoting Gates, 462 U.S. at 236).

     The threshold for probable cause is subject to
     evolving case-law adjustments, but at its core it
     requires factual demonstration or reason to believe
     that a crime has or will be committed. As the term
     implies, probable cause deals with probabilities. It
     is not a “technical” standard, but rather is based on
     “factual and practical considerations of everyday life
     on which reasonable and prudent men, not legal
     technicians, act.” Probable cause requires more than
     bare suspicion, but something less than a


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United States v. Cowgill, No. 09-0376/AF

     preponderance of the evidence. . . . 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
     probability that contraband or evidence of a crime
     will be found in a particular place.

Leedy, 65 M.J. at 213 (final ellipsis in original) (citations

omitted).

     On the one hand, Appellant argues that absent the erroneous

information no probable cause existed because there was

insufficient corroboration for “an unknown, unproven informant .

. . to justify searching someone’s home” and upholding the

warrant will ratify inappropriate police reliance on such an

informant.   United States v. Wilhelm, 80 F.3d 116, 120 (4th Cir.

1996).   The magistrate in this case asked Det. Krause about the

reliability of the informant and whether there was any

corroborating evidence, demonstrating that the credibility of

the informant was central to the probable cause determination by

the magistrate.   Appellant argues that if the informant was not

reliable, then most of the information in the affidavit should

be given no weight.   Additionally, the Appellant contends that

because some of the urinalysis information is false, one cannot

rely on it at all in this case.    As a result, Appellant contends

all that is left is a bare-bones affidavit.

     On the other hand, Det. Krause’s affidavit included:

statements about his conversation with SA Vorderbruggen,



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United States v. Cowgill, No. 09-0376/AF

including his understanding that the source was “reliable”; a

description of the statements from the unnamed source; and

verification of Appellant’s address along with confirmation of

the description of Appellant’s home as provided by the source.2

The source described witnessing Appellant along with his

roommate smoke marijuana, the drug paraphernalia they used to do

so, and the persistent smell of drugs in Appellant’s home.

Additionally, Appellant’s roommate failed a drug test during the

time that the source asserted the drug use was occurring.

     Based on this information we agree with the military

judge’s statement that the affidavit “could undoubtedly have

been more detailed, with additional information about the

reliable source and information unquestionably should have been

confirmed between the OSI and Det Kraus [sic].”   At the same

time, based on the totality of the circumstances, we conclude

that the military judge did not abuse her discretion in

admitting the evidence seized from Appellant’s home.3   While the

drug test was not recent, it was not stale for the purposes of

corroborating the informant’s statement with respect to the

generalized use of marijuana over a six-month period.   In

2
  The affidavit also included reference to eight noise complaints
filed against Appellant’s address.
3
  In light of this conclusion we need not and do not address the
applicability of the good faith exception, as discussed in Judge
Erdmann’s separate opinion.


                               15
United States v. Cowgill, No. 09-0376/AF

addition, the detective’s verification of Appellant’s address

confirmed the source’s description of the home and the source’s

incriminating statements were specific as to time and granular

as to deed.

                           CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Cowgill, No. 09-0376/AF


     STUCKY, Judge (concurring in the result):

     I concur with Judge Baker that, even without considering

the contested statements, the magistrate had a substantial basis

upon which to find probable cause to search Appellant’s off-base

residence.    However, I disagree with the holding that the

information was provided “recklessly.”   United States v.

Cowgill, __ M.J. __ (13) (C.A.A.F. 2010).

     When an accused alleges that a government agent provided

false information to an official authorizing a search, “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.”   Military Rule of Evidence

(M.R.E.) 311(g); see Franks v. Delaware, 438 U.S. 154, 156

(1978).   “Allegations of negligence or innocent mistake are

insufficient.”   Franks, 438 U.S. at 171.

     The military judge found that “there was no evidence

presented that Det. Krause deliberately lied to Judge Chushcoff

when he told him about the urinalysis results or the reasons for

the search.   Nor was evidence presented that Det. Krause made

these statements with reckless disregard for the truth.”

Whether an accused established by a preponderance of the

evidence that the affidavit was deliberately false or made with

reckless disregard for the truth are questions of fact for the

military judge to resolve; thus, a military judge’s findings on
United States v. Cowgill, No. 09-0376/AF


this issue “are binding unless they are clearly erroneous.”

United States v. Allen, 53 M.J. 402, 408 (C.A.A.F. 2000).

     To prove reckless disregard for the truth under Franks, the

accused “must prove that the affiant ‘in fact entertained

serious doubts as to the truth’ of the allegations.”   United

States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002) (quoting

United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984))

(agreeing with United States v. Davis, 617 F.2d 677, 694 (D.C.

Cir. 1979) (holding that the First Amendment definition should

be applied by analogy in the Franks setting)).   There is no

evidence that Det. Krause “entertained serious doubts as to the

truth” of the matters he submitted in his affidavit.   Instead,

the evidence supports a conclusion that Det. Krause made an

innocent mistake in advising the magistrate that the source’s

information had resulted in the Air Force Office of Special

Investigations obtaining a urinalysis from one of the subjects

of the investigation that subsequently tested positive for

marijuana.

     Under these circumstances, I would hold that the military

judge was not clearly erroneous in finding there was no evidence

that Det. Krause’s affidavit was made with reckless disregard

for the truth.

     I concur in the result.




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United States v. Cowgill, No. 09-0376/AF


     ERDMANN, Judge, with whom EFFRON, Chief Judge, joins

(concurring in part and dissenting in part):

     I agree with the majority’s analysis and conclusion that

the false information in the affidavit was provided with

reckless disregard for the truth.   I also agree with the

majority’s treatment of the difference in language between

Franks v. Delaware, 438 U.S. 154 (1978), and United States v.

Gallo, 55 M.J. 418 (C.A.A.F. 2001), as to the proper appellate

analysis of a search warrant affidavit that has been found to

contain false information.   I respectfully disagree, however,

with the majority’s conclusion that after removing the false

information from the affidavit there remained a substantial

basis to find probable cause.   I would further find that the

“good faith” exception does not apply under these circumstances

and would reverse the United States Air Force Court of Criminal

Appeals and set aside Specification 2 of the Charge.

     In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme

Court returned to a “totality-of-the-circumstances” analysis for

reviewing probable cause determinations:

     The task of the issuing magistrate is simply to make a
     practical, common-sense decision whether, given all
     the circumstances set forth in the affidavit before
     him, including the “veracity” and “basis of knowledge”
     of persons supplying hearsay information, there is a
     fair probability that contraband or evidence of a
     crime will be found in a particular place. And the
     duty of a reviewing court is simply to ensure that the
United States v. Cowgill, No. 09-0376/AF


     magistrate had a “substantial basis for . . .
     [concluding]” that probable cause existed.

Gates, 462 U.S. at 238-39 (alterations in original)

(quoting Jones v. United States, 362 U.S. 257, 271 (1960)).

     Where an affidavit has been found to contain false

information, once that information has been removed, this court:

     broadly bifurcates the review of a magistrate’s
     determination into two “closely intertwined” analyses:
     first, we examine the facts known to the magistrate at
     the time of his decision, and second, we analyze the
     manner in which the facts became known to the
     magistrate. Thus, while the initial inquiry rightly
     centers on the evidence as set out in the four corners
     of the requesting affidavit, this evidence “may [then
     be] usefully illuminat[ed]” by factors such as the
     “veracity,” “reliability” and “basis of knowledge” of
     the individual presenting the evidence.

United States v. Leedy, 65 M.J. 208, 214 (C.A.A.F. 2007)

(alterations in original) (citations omitted).

     The United States Court of Appeals for the Tenth Circuit

recently provided a useful discussion of these concepts in

United States v. Quezada-Enriquez, 567 F.3d 1228 (10th Cir.

2009), cert. denied 130 S. Ct. 427 (2009):

     Veracity concerns whether there is reason to believe
     that the informant is telling the truth, see [Gates]
     at 227; United States v. Tuter, 240 F.3d 1292, 1297
     (10th Cir. 2001), including whether he faces criminal
     charges or whether his statement is against his own
     penal interest. “[W]hen there is sufficient
     independent corroboration of an informant’s
     information, there is no need to establish the
     veracity of the informant.” United States v. Artez,
     389 F.3d 1106, 1111 (10th Cir. 2004). Reliability
     determinations entail inquiry into whether the
     informant has provided accurate information in the


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United States v. Cowgill, No. 09-0376/AF


     past. United States v. Corral, 970 F.2d 719, 727
     (10th Cir. 1992); see also Gates, 462 U.S. at 243-44.
     As for basis of knowledge, a firsthand observation is
     entitled to greater weight than secondhand
     information. Tuter, 240 F.3d 1297-98. Thus, when the
     informant’s basis of knowledge is not described on the
     face of the affidavit, we look to whether the
     information “contained a range of details relating not
     just to easily obtained facts and conditions existing
     at the time of the tip, but to future actions of third
     parties ordinarily not easily predicted.” Gates, 462
     U.S. at 245. We look for “the kind of highly specific
     or personal details from which one could reasonably
     infer that the [informant] had firsthand knowledge
     about the claimed criminal activity.” Tuter, 240 F.3d
     at 1298; see also Florida v. J.L., 529 U.S. 266, 271
     (2000) (explaining that the provision of accurate
     “predictive information” can indicate either veracity
     or basis of knowledge).

567 F.3d at 1233 (second and third alterations in

original).

     The facts included in the affidavit that were attributed to

the informant included:   an allegation of use of marijuana in

the residence by the tenants; the use involved less than forty

grams of marijuana and also involved a glass “bong”; the

informant had smelled marijuana in the residence over the course

of 2006, the last time being in December 2006; and the informant

had seen marijuana in sandwich baggies on three occasions in

December, 2006.   The corroborating facts supplied by Det. Krause

in the affidavit, independent of the informant, included:   Det.

Krause drove by the residence and the description matched the

one provided by the OSI agent; Det. Krause determined that there

had been eight loud party complaints for the residence in 2006;


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United States v. Cowgill, No. 09-0376/AF


and the OSI had obtained a urinalysis from one of the tenants

which came back positive for marijuana.

     In regard to the “veracity,” “reliability,” and the “basis

of knowledge” of the informant, the only reference in the

affidavit to any of these factors was Det. Krause’s secondhand

allegation that the OSI agent informed him that the informant

was “deemed reliable.”   There is nothing in the affidavit which

supports or explains that bare conclusory statement.   There is

no information specifically provided in the affidavit that would

establish that this informant was telling the truth.   There is

nothing about the informant’s background or whether he or she

had provided accurate information in the past.   Without more

information, a mere conclusory statement that the informant is

“deemed reliable” is an inadequate basis to determine probable

cause.1   See Gates, 462 U.S. at 239.

     This inadequacy in the affidavit as to the veracity,

reliability, and basis for the informant’s knowledge was

obviously recognized by the magistrate, a Washington state

Superior Court judge, when he asked Det. Krause what information

from the informant had been corroborated.   In response to this

inquiry, Det. Krause erroneously informed the judge that the

positive urinalysis was conducted based on information from the

1
  The record reflects that the OSI agent had much of this
information, but it ultimately did not find its way into the
affidavit.

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United States v. Cowgill, No. 09-0376/AF


informant.   As a result of that conversation the magistrate

asked Det. Krause to add language to the affidavit that the

urinalysis had been conducted based on the informant’s

information.2

     While the informant did allege the presence of and use of

marijuana in the residence, the specific allegations of the use

of a glass “bong” and sandwich baggies do not add significant

support to the totality-of-the-circumstances analysis.    It is

common knowledge that marijuana is kept and distributed in

sandwich baggies and that “bongs” are used to ingest marijuana

smoke.   These are details that relate to easily obtained facts

and conditions rather than individualized allegations such as

the specific date, time, circumstances, and the names of those

present when marijuana was used or possessed.

     It is true that where an affidavit does not reflect

evidence of the veracity of an informant, that deficiency can be

offset where there is sufficient independent corroborating

evidence.    Quezada-Enriquez, 567 F.3d at 1233.   The additional

facts alleged by Det. Krause, however, provided little

2
  Det. Krause added and initialed the phrase to the affidavit
“Based upon the source’s information +” as a preface to the
allegation that “OSI obtained a urinalysis from one of the two
named subjects that came back positive for the presence of
marijuana.” In reviewing probable cause determinations, courts
must look at the information made known to the authorizing
official at the time of his decision. United States v. Carter,
54 M.J. 414, 418 (C.A.A.F. 2001) (citing United States v.
Cunningham, 11 M.J. 242, 243 (C.M.A. 1981)).

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United States v. Cowgill, No. 09-0376/AF


corroboration.    While he did corroborate the address that was

provided to him by the OSI agent by driving by the residence,

that again is easily obtained information.   The information

concerning loud party complaints adds little to a totality-of-

the-circumstances analysis for a search warrant for possession

of marijuana.    The positive urinalysis does constitute evidence

that someone then living at the residence had used marijuana

sometime in the past, but its inclusion in the affidavit is

diminished by a lack of explanation as to the circumstances of

the test and its proximity in time to the search warrant

application.

       The Government argues that the information from the

informant was corroborated by the results of the urinalysis and

that the specific detailed information provided by the informant

and corroborated by Det. Krause overcomes the lack of

information concerning the reliability of the informant.     While

I recognize that a determination of probable cause by a neutral

and detached magistrate is entitled to substantial deference,3 in

this case we are determining whether the affidavit, after

excluding the false information, would have provided a

substantial basis for determining probable cause.   In this case

it does not.



3
    Carter, 54 M.J. at 419.

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United States v. Cowgill, No. 09-0376/AF


        The limited factual information presented to the

magistrate, combined with the almost total lack of any

information as to the informant’s veracity, reliability, and

basis of knowledge, is not overcome by the limited corroboration

provided by Det. Krause.    This record simply does not support a

“substantial basis” for determining that probable cause existed.

        If a search warrant affidavit lacks probable cause, the

evidence obtained as the result of the warrant may still be

admissible under the “good faith” exception established in

United States v. Leon, 468 U.S. 897 (1984), and recognized in

Military Rule of Evidence 311(b)(3).    The “good faith” exception

applies “where the official executing the warrant relied on the

magistrate’s probable cause determination and the technical

sufficiency of the warrant, and that reliance was ‘objectively

reasonable.’”    Carter, 54 M.J. at 419 (citing Leon, 468 U.S. at

922).

        In Leon the Supreme Court also recognized four

circumstances where the “good faith” exception would not apply.4

The first of those circumstances involve a “false or reckless

affidavit.”    There is no division of opinion in this case that

the information added to the affidavit in response to the

4
  The four circumstances identified in Leon where the “good
faith” exception does not apply are where there is: (1) a false
or reckless affidavit; (2) a lack of judicial review; (3) a
facially deficient affidavit; and (4) a facially deficient
warrant. Carter, 54 M.J. at 419.

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United States v. Cowgill, No. 09-0376/AF


magistrate’s request for corroboration of the informant’s

allegations was provided with reckless disregard for the truth.

     In United States v. Leon, the Supreme Court explained
     that the Fourth Amendment itself does not expressly
     require excluding evidence that was obtained in
     violation of its command. Rather, the exclusionary
     rule operates as a “judicially created remedy designed
     to safeguard Fourth Amendment rights generally through
     its deterrent effect, rather than a personal
     constitutional right of the party aggrieved.” 468
     U.S. at 906 (citation and quotation marks omitted).
     Use of the exclusionary rule is to prevent further
     police misconduct in other cases, not to compensate
     the individual whose Fourth Amendment rights were
     violated or to punish the errors of judges and
     magistrates. 468 U.S. 906, 916.

Leedy, 65 M.J. at 219-20 (C.A.A.F. 2007) (Erdmann, J.,

concurring).

     Having found that the information added to the affidavit

was done so in reckless disregard for the truth, the “good

faith” exception does not apply.       I would therefore reverse the

decision of the United States Air Force Court of Criminal

Appeals and set aside the finding of guilty to Specification 2

of the Charge.   In light of the sentence received by Cowgill and

the fact that he would remain convicted of use of cocaine and

possession of marijuana, I would affirm the sentence.




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