Under military rules, oral probable cause affidavit and oral authorization to search residence on Air Force base are constitutional

SEARCH & SEIZURE United States v. Banks, 05-8093, ___ F.3d ___ (10th Cir. Jun. 23, 2006)(Wyoming). Appeal of convictions for conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846; aiding and abetting distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; aiding and abetting possession of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1); and carrying firearm during and in relation to drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). HELD: District court did not err in denying defendant’s motion to suppress drug evidence gathered at his home on Air Force base where search was authorized under Military Rule of Evidence 315 upon oral presentation of probable cause via telephone by agent of Air Force Office of Special Investigations to Air Force officer with authority to grant authorization for search. a. Under military rules, oral affidavits and oral authorization of search warrants without contemporaneous writings are constitutional. b. To extent defendant argues on appeal that search authorization was unlawful because oral presentation of probable cause was made in an unsworn statement, even if it is assumed that Rule 315 requires that probable cause statements be made under oath, defendant fails to point to anything in record to supporting his contention that OSI agent was not under oath when he made his probable cause statement to authorizing officer. Accordingly, court of appeals will not consider argument. Read the opinion here.