Court Unanimously Rogers Up

Judge Baker, writing for a unanimous Court today, affirmed AFCCA in United States v. Rogers. While not the QP, as Judge Baker summarized, "The question presented is whether probable cause existed to issue the search authorization [for appellant's hair sample]."

First a critique. While the phrase "military magistrate," used extensively by Judge Baker, may be technically correct, I think it conveys a mis-impression of neutrality in the official who in this case issued the search authorization. Col Wayne McCoy, the 70th Operations Group commander was the "military magistrate," and, more than likely, the Special Court-Martial convening authority. See AFCCA opinion here (noting that the commander that authorized the search was "the commander of the appellant"). Not exactly my mental image of a magistrate. Enough with word choice.

Judge Baker holds that under a totality of the circumstances the military judge did not abuse his discretion in finding that the Commander had probable cause to issue the search authorization. Essentially Judge Baker wrote that the tie goes to the military judge when determining probable cause because the MJ could judge the veracity and credibility of the witnesses. Not ground breaking stuff, though I think it should put agents on notice not to exclude all the bad stuff from the affidavit when seeking search authorization.

An interesting note here is that the probable cause determination was based in large part on the veracity of SrA T and her eyewitness story about the accused ingesting cocaine. She also alleged an indecent assault and indecent exposure by Rogers. As Judge Baker noted in assessing the record as a whole established probable cause, "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 . . . ." Yet, Rogers was acquitted of the other charges alleged by SrA T. I was struck that Judge Baker did not at least mention this fact or comment that the jury's verdict had nothing to do with the Commander's judgment.