CAAF today released a deeply divided decision in United States v. Cowgill, No. 09-0376/AF, a search and seizure case.  It’s available here.  Judge Baker, joined by Judge Ryan, delivered the judgment (but not opinion) of the court.  Judge Stucky concurred on a separate basis.  Chief Judge Effron, joined by Judge Erdmann, concurred in part and dissented in part.

I doubt I’ll have time to get into all of the nuance of the opinion tonight and I’m hitting the road on Sunday.  I’ll try to post more details before then, but welcome any of my CAAFlog colleagues to beat me to the punch.

4 Responses to “CAAF issues search and seizure decision”

  1. eggnog says:

    Not everything is as hopelessly divided as it appears. Four find reckless disregard for the truth. Split is over the fact-intensive Q of whether other probable cause evidence made it ok. Stucky finds no error (big fat surprise)

  2. Cloudesley Shovell says:

    Pay close attention to the facts in this case, fellow miljus fans–
    A police officer can go to a magistrate with an affidavit based almost entirely upon hearsay information provided by an anonymous source who that police officer has never even met (!). Then, to placate a doubtful magistrate, the police officer makes stuff up that he doesn’t know (that’s the reckless part), alters his affidavit, and the magistrate signs off.

    Off the police officer goes to search someone’s home for marijuana. Because drugs can be present in minute quantities and tiny packages, any warrant authorizing a search for drugs is, in reality, a general warrant (even if the law does not consider it so, it is).

    Think about that really hard, all ye who are subject to the UCMJ. That’s how much protection your private off-base home gets under the UCMJ. Courts are rubbing the Constitution tissue-thin when it comes to the 4th Amendment.

    Once again, hearsay information from an informant the police officer never met, plus information submitted with reckless disregard for the truth = a search that survives abuse of discretion.

    It’s a tails they win, heads you lose world–if the search had found nothing, Cowgill would have had no recourse for the obvious violations here (yeah, good luck with that civil rights lawsuit). If the police find anything at all incriminating, even if it wasn’t the original object of the quest for evidence, good luck overcoming that abuse of discretion hurdle.

    That being said, More Cowbell, Cowgill!! (Sorry, I’m in Camelot this week, and it is, after all, a very silly place. My turn to push the pram.)

  3. MJW1 says:

    When you depart on your quest, bring a herring, you never know when you will need to cut down the mightiest tree in the forest.

  4. Cloudesley Shovell says:

    A herring? Heck, I’m still looking for the aquatics center, where they distribute the swords at some sort of ceremony. I heard that watery tarts are involved.