United States v. Cravens

IN THE CASE OF

UNITED STATES, Appellee

v.

James R. CRAVENS, Staff Sergeant
U.S. Air Force, Appellant

No. 01-0249

Crim. App. No. 33438

United States Court of Appeals for the Armed Forces

Argued October 25, 2001

Decided March 25, 2002

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

Counsel

For Appellant: Captain Patricia A. McHugh (argued); Lieutenant Colonel
Beverly B. Knott, Lieutenant Colonel Timothy W. Murphy, and Captain Karen
L. Hecker (on brief); Colonel James R. Wise.

For Appellee: Major Jennifer R. Rider (argued); Colonel Anthony P. Dattilo
and Major Lance B. Sigmon (on brief).

Military Judge: Howard P. Sweeney

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Cravens, 01-0249/AF

Senior Judge SULLIVAN delivered the opinion of the Court.

During June of 1998, appellant, an E-5, was tried by a

general court-martial composed of officer and enlisted members at

Travis Air Force Base in California. He was charged with one

specification of wrongfully using methamphetamine, in violation

of Article 112a, Uniform Code of Military Justice, 10 USC § 912a.

He was found guilty of that offense and sentenced to a bad-

conduct discharge and reduction to E-4. On November 2, 1998, the

convening authority approved this sentence as adjudged, and on

October 31, 2000, the Court of Criminal Appeals affirmed.

This Court granted review in this case on May 25, 2001, on

two issues:

I.

WHETHER THE MILITARY JUDGE ERRED IN
DENYING APPELLANT’S MOTION TO SUPPRESS
HIS HAIR DRUG TEST RESULTS WHEN THE OSI
AGENTS PROVIDED FALSE AND MISLEADING
INFORMATION TO THE MAGISTRATE AND WHEN
THERE WAS A LACK OF PROBABLE CAUSE FOR
THE SEARCH AUTHORIZATION.

II.

WHETHER THE MILITARY JUDGE ERRED IN
DENYING APPELLANT’S MOTION IN LIMINE TO
SUPRESS THE HAIR TEST RESULTS BASED ON
MIL.R.EVID. 401 AND 403, WHEN THE
GOVERNMENT EXPERT WITNESS TESTIFIED THAT
THERE WAS NO WAY TO DETERMINE WHICH PART
OF THE HAIR CONTAINED THE ILLEGAL DRUG
AND, THUS, WHEN APPELLANT ALLEGEDLY USED
THE SUBSTANCE.

We hold that the military judge did not err when he admitted

evidence of drug tests performed on appellant’s hair showing the

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presence of methamphetamine. See United States v. Allen, 53 MJ

402 (2000); see generally United States v. Bush, 47 MJ 305

(1997).

The military judge made the following findings of fact and

conclusions of law concerning appellant’s motion to suppress the

results of the testing of his hair for traces of drugs:

1. In the early morning hours of
Tuesday, 1 April 1998, Deputy Ernesto
Ramirez and Deputy Brian Bishop were on
routine patrol in a high crime area of
Whittier, CA. They were in uniform,
driving a standard black and white
police car. Deputy Ramirez was a
training officer and Deputy Bishop was
in a training status on that date.

2. At approximately 0002 hours on 1
April 1998, the Deputies saw a vehicle
traveling in front of them with its
license plate obstructed by a trailer
hitch. This is a violation of
California Vehicle Code Section 5201.
Deputy Ramirez turned on his overhead
lights in order to warn or cite the
driver for the violation. The driver,
later identified as the accused, SSGt
James R. Cravens, pulled over.

3. Deputy Ramirez approached the
driver’s side of the vehicle and Deputy
Bishop approached the passenger side.
Immediately, Deputy Ramirez noticed a
black colored fabric object bulging from
beneath the accused’s open and
unbuttoned shirt. He detained the
accused to investigate his suspicion
that the object was a firearm shoulder
holster.

4. During the investigation concerning
the possession of the firearm, Deputy
Ramirez noticed the accused was
extremely nervous, that he constantly
shifted his weight from side to side,

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and that his speech was very rapid. The
accused would continue to answer
questions even after giving complete
answers and he would voluntarily talk
about subjects without being asked.
Deputy Ramirez also noticed his
attention seemed to be divided. Based
on Deputy Ramirez’s training, knowledge,
and experience in detecting symptoms of
drug use, these objective observations
gave him a reasonable suspicion that the
accused was under the influence of a
stimulant.

5. Based on his objective reasonable
suspicion that the accused was under the
influence of a stimulant, Deputy Ramirez
lawfully detained the accused for
further investigation. He asked the
accused if he was using any prescription
medication. The accused stated he was
not.

6. Deputy Ramirez then began to conduct
the field tests to determine if the
accused was under the influence of a
stimulant. These tests were conducted
on the side of a public road while the
accused was standing outside of his
vehicle. While doing the light
accommodation test, the accused
volunteered, “If you want to know if I
did some dope, I did a line earlier,” or
words to that effect. Deputy Ramirez
noticed the accused had little or no
reaction to light and his pupils were
dilated to approximately 7.5mm using a
pupilometer.

7. The accused was then seated in the
back of the patrol car while Deputy
Ramirez checked his pulse. His pulse
was measured at 129 beats per minute.
The accused was not in custody, nor had
he been placed under arrest. The
accused was not in handcuffs during
these tests.

8. After this investigation, Deputy
Ramirez believed he had probable cause
to arrest the accused for violations of
the California Health and Safety Code.
The accused was arrested for a violation
of section 11550(A), use of a controlled

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substance, a misdemeanor offense, and a
violation of section 11550(E), being
under the influence of a controlled
substance while in the possession of a
firearm, a felony offense.

9. The accused was booked into the Pico
Rivera Sheriff’s Station. During the
booking process, the accused was given
the opportunity to provide a urine
specimen to prove or disprove the
presence of a stimulant or illegal
narcotic in his body. The accused was
informed that if he refused to submit to
a urine test, his refusal would be used
against him in a court of law showing
consciousness of guilt. In response to
the request, the accused stated, “I’m
fucked if I do and I’m fucked if I
don’t.” He then decided to refuse to
submit a urine specimen.

10. Within the drug culture, “doing a
line” means segregating a small pile of
powdered drugs, typically cocaine or
methamphetamine into lines approximately
one to two inches long. Typically a
razor blade, credit card, or other like
object is used to form the “line” and
the user will snort the substance
through the nostrils with a straw or
other cylindrical object.

11. There are many different means of
using methamphetamine. A user can heat
the substance and smoke the fumes,
usually through a glass pipe of some
sort; a user can heat the substance to a
liquid form, then inject it; a user can
snort the powdered form of the substance
as described above, or in some cases a
user can ingest the substance in a pill
form. The most common means of using
methamphetamine in southern California
is to snort the substance.

12. Methamphetamine and most stimulants
are generally detectable in urine up to
72 hours after ingestion. However, hair
serves as a repository for drugs,
metabolites, vitamins, and other
substances delivered by the blood to the
hair. These substances are principally
deposited in the internal portion of the

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hair, known as the cortex. The forensic
acceptability of hair testing relies on
the same science, an immunoassay and gas
chromotography/mass spectrometry (GC/MS)
analysis, as tests for drugs in other
body fluids and tissues. The substances
and their metabolites can be detected in
hair samples approximately seven days
after ingestion and will remain present
as long as the hair remains.

13. Generally, a GC/MS analysis will
detect chronic or repetitive use of a
substance. However, depending on
several factors including dose, it is
scientifically possible to test for a
single use, but a positive result is not
guaranteed. A positive hair drug test
indicates that the person used the
substance on at least one occasion, but
does not discriminate between the number
of uses. A negative hair drug test may
indicate that the person did not use the
substance (within a time frame
consistent with the length of hair) or
it may indicate that the accused used a
small enough dose of the substance that
it would not be detected.

14. On 4 April 1997, SA Ernest
Slatinsky and SA Scott Burris, AFOSI Det
110, Los Angeles AFB CA, were first
notified of the accused’s arrest. SA
Slatinsky was informed that no urine
sample had been taken from the accused.
Based on his experience and the passage
of time, he felt probable cause for a
urinalysis was lacking. Using AFOSI
training materials (Atch 2), SA
Slatinsky knew that hair samples
retained evidence of drug use longer
than urine. SA Slatinsky knew that a
positive result was not guaranteed, but
knew the science could, depending on the
circumstances, detect a single use. SA
Burris was under the impression that a
hair test would test positive for a
single use.

15. On 28 April 1997, SA Ernest
Slatinsky, AFOSI Det 110, Los Angles AFB
CA, prepared an affidavit outlining the
facts and circumstances surrounding the

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traffic stop of the accused on 1 April
1997. (Atch 1, Defense Motion)

16. SA Slatinsky, SA Burris and Captain
O’Conner, an attorney with the Los
Angeles AFB legal office, personally
presented this affidavit to Colonel John
P. Caldwell, the Military Magistrate.
Colonel Caldwell used a checklist
created by the Staff Judge Advocate’s
office to assist him in determining if
probable cause existed (Atch 4). During
this meeting, Colonel Caldwell asked
questions of the special agents directly
from the checklist. He then asked
questions related to the affidavit.
Colonel Caldwell may have taken notes of
this discussion, but destroyed the
notes.

(Emphasis added.) (R. 278) (A.E. XIV)

The military judge made additional findings of fact and

conclusions of law on this motion. (R. 279) He found:

1. Neither Special Agent Slatinsky nor
Special Agent Burris intentionally or
with reckless disregard made the
affidavit misleading. Nor do I find
that the statements in Special Agent
Slatinsky’s affidavit that “drug
metabolites can be detected in hair
samples after approximately seven days
of ingestion and will remain present as
long as the hair remains” is misleading.

While I was concerned by the level of
professional competence displayed by
Special Agents Slatinsky and Burris and
was disturbed by the lack of
thoroughness or attention to detail that
they exhibited, I judged that their
errors and mistakes, which interfered
with their preparedness to testify at
this trial and accurately report what
occurred, was due to inexperience and
insufficient training and insufficient
supervision rather than any intentional
misconduct on their part. Special Agent

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Slatinsky’s testimony that his failure
to discuss his view of the likelihood of
detecting a single use of
methamphetamine by hair testing was an
oversight is unfortunately very credible
and consistent with his failure to take
notes at the search authorization
meeting, forgetting that he could ask
National Medical Services to segment the
hair and not recalling the questions
that he was asked or to discuss the
issues with his forensic consultant.

2. The fact that Special Agent
Slatinsky did not tell the search
authority that he personally believed
that there was a “slim chance” that the
hair sample would test positive did not
taint the validity of the affidavit nor
did it take away from the validity of
Colonel Caldwell’s search authorization.

3. Colonel Caldwell presented very
forceful and clear testimony reflecting
that he fulfilled his role as a neutral
and detached magistrate and that his
decision was clearly his own after
asking responsible questions,
considering the OSI and JA advisor’s
views and then making a personal
decision. Also he had a very good sense
of what probable cause was and his role
in the process. He is clearly an
independent thinker who rendered his
personal judgment as he was required to
do so. He was convinced that the
evidence of the accused’s use of an
illegal substance could be found in the
accused's hair.

4. Doctor Robertson’s testimony clearly
reflected that the defense’s position
that the search authority was misadvised
as to the capability of the science of
hair testing to detect a single use of
methamphetamine and that Special Agent’s
[sic] Slatinsky’s failure to segment the
hair samples or to request segmentation
was a fatal flaw in the search
authorization are not correct.

5. The government’s use of hair sample
drug testing to corroborate the
accused’s admissions to the police

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officers and to determine what, if any,
contraband substances he may have
ingested or consumed was reasonable
under the totality of the circumstances
and did not represent an arbitrary or
unreasonable violation of the accused’s
privacy rights.

As conclusions of law, I specifically
adopt the prosecution’s statements of
law numbered 18 through 32 in Appellate
Exhibit XIV and I conclude that the
government has met its burden on this
motion by more than a preponderance of
the evidence.

(Emphasis added.)

_ _ _ _

Appellant’s basic contention on this appeal is that

scientific evidence showing a sample of his hair tested positive

for methamphetamine should not have been admitted at his court-

martial. He makes two distinct arguments supporting his

position. First, he argues that the sample of hair, which was

tested by the Government, was unlawfully seized from him without

probable cause to believe it contained evidence of drug use. See

Mil.R.Evid. 311(g)(2), Manual for Courts-Martial, United States

(1995 ed.).1 Second, he asserts that the Government failed to

show the positive test results were relevant and reliable

evidence showing drug use during the time period charged and,

therefore, this evidence was inadmissible under Mil.R.Evid. 401

and 403. We conclude that the military judge did not err by

1 All Manual provisions are cited to the version in effect at the time of
appellant’s court-martial. The current version is identical, unless otherwise
indicated.

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admitting this hair analysis evidence in this case. See

generally United States v. Bush, 47 MJ at 305.

I

Appellant initially contends that the military judge erred

when he denied the defense’s motion to suppress evidence that a

sample of appellant’s hair, seized by the Government, tested

positive for methamphetamine. He argues that he showed by a

preponderance of the evidence that information provided as the

basis for authorizing this seizure and search was at least

recklessly false and misleading. He also contends that “[t]he

prosecution failed to rebut the defense evidence or to show the

validity and sufficiency of the rest of the information in the

affidavit.” Final Brief at 6. For both these reasons, he

asserts the scientific evidence pertaining to the seized hair

should have been excluded. See Mil.R.Evid. 311(g)(2); Franks v.

Delaware, 438 U.S. 154 (1978). Finally, appellant argues that,

even assuming the evidence presented to the magistrate in this

case was true, it did not provide a substantial basis for the

magistrate’s conclusion that probable cause existed to seize and

test his hair. See Mil.R.Evid. 311(g)(1) and 315(f).

Appellant particularly asserts in his brief that SA Slatinsky

misled the magistrate, Colonel Caldwell, in three different

matters:

First, the OSI agent specifically did
not tell the military magistrate that

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the hair testing would not detect a one-
time use of methamphetamine, which was
the crime OSI was investigating.

* * *

Second, the OSI agents affirmatively
misled the military magistrate with
their list of cases where “hair testing
has been upheld in State, Federal and
Military Courts.”

* * *

Third, the affidavit claims that hair
testing has been “accepted by the
scientific and legal communities” as
cited in several articles.

Final Brief at 7,9, and 10. Appellant implies that the obviously

critical nature of both the purported omission and false

information indicates that SA Slatinsky “provided false

statements to the military magistrate with at least reckless

disregard for the truth.” Id. at 13; see United States v. Jones,

208 F.3d 603, 607 (7th Cir. 2000) (to show reckless disregard for

truth, the defense must offer evidence that affiant in fact

entertained serious doubts about the truth of his allegations or

had obvious reasons to doubt the veracity of the allegations).

Mil.R.Evid. 311(g)(2) essentially codifies the Supreme Court

decision in Franks v. Delaware, supra. It states:

(2) False statements. If the defense
makes a substantial preliminary showing
that a government agent included a false
statement knowingly and intentionally or
with reckless disregard for the truth in
the information presented to the
authorizing officer, and if the
allegedly false statement is necessary
to the finding of probable cause, the
defense, upon request, shall be entitled

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to a hearing. At the hearing, 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. If the defense meets it burden,
the prosecution has the burden of
proving by a preponderance of the
evidence, with the false information set
aside, that the remaining information
presented to the authorizing officer is
sufficient to establish probable cause.
If the prosecution does not meet its
burden, the objection or motion shall be
granted unless the search is otherwise
lawful under these rules.

(Emphasis added.)

Appellant has asked this Court to relitigate the question of

SA Slatinsky’s state of mind, i.e., did he knowingly and

intentionally, or with reckless disregard for the truth, mislead

the military magistrate that a single use of drugs could be

detected by hair analysis and that scientific and legal

authorities supported the admission of such evidence? See

generally United states v. Colkley, 899 F.2d 297, 300-03 (4th

Cir. 1990). This was a question of fact for the trial judge.

See United States v. Allen, 53 MJ at 408; United States v. Mick,

263 F.3d 553, 564 (6th Cir. 2001). The military judge resolved

this question adversely to the defense (R. 278), and his ruling

is supported by evidence in the record. See United States v.

Colkley, supra at 301.

In this regard, we note that the Government introduced

evidence that one-time drug use could actually be detected by

hair analysis, albeit under certain limited circumstances. (R.

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227-28) It also introduced evidence that SA Slatinsky was

generally aware of this possibility but he did not think it was

necessary to inform the magistrate of it. It further introduced

evidence that this agent mistakenly failed to request

segmentation, which was the scientific prerequisite for detection

of one-time use. (R. 181, 187-88, 196, 198) Finally, the

Government introduced evidence that he relied on materials he

received in training as the basis for the scientific and legal

representations he made in his affidavit. (R. 179-80) In these

circumstances, we conclude that appellant has failed to show the

military judge’s factfinding as to SA Slatinsky’s state of mind

was clearly erroneous. See United States v. Mick, supra; cf.

United States v. Whitely, 249 F.3d 614, 621-24 (7th Cir. 2001);

see generally United States v. Photogrammetric Data Services,

Inc., 259 F.3d 229, 238 (4th Cir. 2001) (mere negligence in

recording facts in supporting affidavit is not sufficient to

establish Franks violation).2

Turning to appellant’s second argument, he contends that,

accepting as true the information provided to the military

magistrate, there was no substantial basis for his conclusion

that probable cause existed to seize his hair on April 29, 1997.

We note, however, that there was evidence appellant admitted

2 This case illustrates well why federal military and civilian systems of
justice grant deference to search authority provided by detached magistrates,
such as Colonel Caldwell, who are prepared to put law enforcement affiants to
the test.

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using drugs to a police officer on April 1, 1997. There was also

evidence that appellant exhibited a demeanor consistent with drug

use at that time. Finally, there was evidence presented to the

military magistrate that “drug metabolites can be detected in

hair samples after approximately seven (7) days of ingestion and

will remain present as long as the hair remains.” (Statement of

Probable Cause April 28, 1997) (A.E. XIII Attachment 1) This

information constituted a legally sufficient basis for finding

probable cause, as defined in Mil.R.Evid. 315(f)(2) and our case

law. See United States v. Prouse, 945 F.2d 1017, 1024 (8th Cir.

1991); see generally United States v. Hall, 50 MJ 247, 249 (1999)

(“Probable cause to search exists when there is a reasonable

belief that the . . . evidence sought is located in the place or

on the person to be search[ed].”).

II

Appellant also asserts that the results of hair analysis

tests for drugs in his case were inadmissible under Mil.R.Evid.

401 and 403. He notes that he was charged with using

methamphetamine on or about April 1, 1997, but his 3-centimeter

hair sample was not taken until April 29, 1997, and it was not

segmented. He asserts therefore that a positive test result for

his hair sample indicated only drug use at some unspecified point

within four to five months preceding April 29, 1997. Final Brief

at 16. Accordingly, he argues that such hair analysis evidence

was not relevant to show his charged use of methamphetamine on or

about April 1, 1997. See Mil.R.Evid. 401.

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Appellant was charged with using methamphetamine between “on

or about 28 February 1997 and on or about 1 April 1997.”

Evidence of his admission on April 1, 1997, to “doing a line” was

admitted in this case, as well as evidence of a police officer’s

observations of his demeanor at that time also suggesting recent

drug use. Scientific evidence further indicating drug use which

was proximate in time to the charged use is, at the very least,

relevant to corroborate his confession. See United States v.

Hall, supra at 251-52 (evidence of positive urinalysis three

months after confessed use is sufficient corroboration of

confession).

An additional argument appellant made at trial was that due

to the above time-of-use problem, the challenged hair analysis

evidence was too confusing for admission at this court-martial.

See Mil.R.Evid. 403. (R. 262, 266) On appeal, however, he

asserts that “the nebulous nature of the tests conducted in

Appellant’s case and the variation in test ‘results’ that can be

reported by a laboratory calls into question the validity of the

‘science’ implemented in Appellant’s case.” Final Brief at 16-

17. He contends the tests were nebulous because “there is no

cutoff process to determine whether a result is positive.

Instead, that is left of the discretion (guesswork) of the

forensic toxicologist looking into the case.” Id. at 16. He now

argues that such dubious scientific evidence should also have

been excluded under Mil.R.Evid. 403.

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Appellant cites no legal authority for his attack on the

scientific validity of hair analysis for determining the presence

of contraband drugs. See Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993). Moreover, in United States v. Bush,

this Court held that an appellate court is not an appropriate

place to relitigate a motion to admit such expert testimony, and

we refused to determine de novo the reliability of hair analysis

evidence admitted by the judge in that case. 47 MJ at 305.

Appellant essentially makes the same request on this appeal under

the guise of Mil.R.Evid. 403. Moreover, evidence was admitted in

this case of a reporting limit set by the National Medical

Services which undermines the key factual component of his

scientific validity argument. (R. 383-86) Appellant has not

demonstrated that the reporting limit established by NMS was too

low or otherwise unreliable. Finally, we note that the military

judge specifically considered and admitted this hair analysis

evidence under Mil.R.Evid. 401 and 403, and we are not convinced

that he abused his discretion in this regard. (R. 279) See id.

at 312.

The decision of the United States Air Force Court of Criminal

Appeals is affirmed.

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