On Friday, AFCCA issued a published search and decision. United States v. McMahon, __ M.J. ___, No. ACM S31268 (A.F. Ct. Crim. App. Sept. 12, 2008). Here’s a link.
The central issue in McMahon arose because neither the magistrate nor the OSI agent who obtained the search authorization from the magistrate was available to testify at trial. And the affidavit seeking the search authorization didn’t identify the informant who provided the information that led the magistrate to authorize the seizure of A1C McMahon’s urine for testing.
The military judge denied a defense suppression motion. And while AFCCA’s opinion was fairly critical of the trial judge’s approach to the issue, it conducted a de novo analysis and concluded the informant’s credibility was sufficiently corroborated to provide adequate probable cause. AFCCA placed “considerable significance on the fact that the source had successfully executed a buy-walk drug purchase for the AFOSI. His ability to execute the purchase within a day of initially identifying the appellant is significant.” Id., slip op. at 5. (The opinion defines a “buy-walk drug purchase” as an informant purchasing drugs and returning them to the controlling law enforcement agent with no arrest taking place at the time of the sale. Id., slip op. at 2 n.4.) The court also reasoned that “[e]ven if AFOSI agents had told the magistrate the name of the informant, it is probable that he would have had no personal knowledge of this particular Airman First Class and would have relied on exactly the same factors we do in concluding the informant was reliable.” Id., slip op. at 5.