IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Terrence A. BETHEA, Master Sergeant 

U.S. Air Force, Appellant 

No. 05-0041 

Crim. App. No. 35381 

United States Court of Appeals for the Armed Forces 

Argued April 11, 2005 

Decided June 23, 2005 

GIERKE, C.J., delivered the opinion of the Court, in which 

CRAWFORD, EFFRON, BAKER, and ERDMANN, JJ., joined. 

Counsel 

For Appellant: Captain Christopher S. Morgan (argued); Colonel

Carlos L. McDade, Major Terry L. McElyea, Major Sandra K. 

Whittington, and Major James M. Winner (on brief) 

For Appellee: Major Carrie E. Wolf (argued); Lieutenant Colonel

Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and Major

Kevin P. Steins (on brief) 

Military Judge: David F. Brash 

This opinion is subject to revision before final publication . 
United States v. Bethea, No. 05-0041/AF 

2

 Chief Judge GIERKE delivered the opinion of the Court. 

 Appellant’s urine sample tested positive for the metabolite 

of cocaine. A military magistrate then issued a search 

authorization to seize a hair sample from Appellant to test it 

for evidence of drug use. We conclude that the search 

authorization was supported by probable cause. 

BACKGROUND

 Appellant was tried by a general court-martial for a single 

specification alleging use of cocaine on divers occasions 

between January 17, 2001, and February 16, 2001. Following a 

contested trial, the members found Appellant guilty as charged 

of violating Article 112a, Uniform Code of Military Justice 

(UCMJ).1

 A key piece of evidence against Appellant was the 

result of a hair analysis that indicated multiple uses of 

cocaine. The admissibility of that evidence is the subject of 

this appeal. 

 On February 7, 2001, Appellant provided a urine sample as 

part of a random drug test. His urine sample contained 238 

nanograms per milliliter of the cocaine metabolite; the 

Department of Defense’s (DOD’s) cutoff for a “positive” test 

result is 100 nanograms per milliliter. 

 Following this positive urinalysis result, an Air Force 

Office of Special Investigations (OSI) agent interviewed 

 

1

 10 U.S.C. § 912a (2000). 
United States v. Bethea, No. 05-0041/AF 

3

Appellant, who denied that he had knowingly used cocaine. OSI 

Special Agent (SA) Michael Tanguay then sought authorization to 

seize a hair sample from Appellant for further testing. He 

presented an affidavit to Yokota Air Base’s primary magistrate, 

Colonel Dale A. Hess. The affidavit described the results of 

Appellant’s urinalysis. It stated next that, based on SA 

Tanguay’s training and information gathered from a forensic 

science consultant and the National Medical Services Laboratory, 

“affiant believes trace amounts of cocaine may be trapped in the 

cortex of BETHEA’s hair follicles.” The affidavit then went 

into greater detail to support that conclusion, explaining that: 

 a. As the blood circulates through the body, it 

nourishes the hair follicle. If there are drugs in 

the blood, trace amounts of the drug become trapped in 

the internal portion of the hair, known as the cortex. 

Those traces remain in the hair as it grows out from 

the body. These are not removed with routine hygienic 

washings nor are they flushed out. Thus, chronic drug 

use, as well as a binge use of a drug, can be detected 

for a period of up to several months, depending on the 

length of the hair sample. 

 The affidavit also described the scientific tests used to 

analyze hair for evidence of drug use. The affidavit then 

compared urine testing with hair testing: 

 c. While urine tests can determine whether a 

drug was used at least once within the recent past, 

hair analysis potentially provides information on a 

binge use or chronic drug use ranging from months, 

depending on the length of the hair and the type of 

hair. 

 d. Hair analysis is not subject to false 

negatives due to temporary abstention or excessive 
United States v. Bethea, No. 05-0041/AF 

4

fluid intake. It is currently accepted that hair 

records drug use in chronological manner and in 

relative proportion to the amount consumed. The 

National Medical Services Laboratory can distinguish 

between heavy, medium and light drug users. 

Consequently, such hair analysis may be used to prove 

binge use as well as multiple and/or chronic use of 

controlled substances. 

 After spending approximately fifteen minutes with SA 

Tanguay, the military magistrate issued an authorization to 

seize from Appellant “[b]odily hair for the purposes of drug 

testing.” The resulting analysis indicated that Appellant had 

used cocaine on multiple occasions. 

 At trial, the defense moved to suppress the results of the 

hair analysis. The defense argued that the authorization to 

seize Appellant’s hair was not supported by probable cause. 

 During the suppression hearing, the military magistrate who 

authorized the search took the stand. Colonel Hess testified 

that “in my mind there was no doubt” probable cause existed. He 

stated that he was not “concerned about binge use. I was 

concerned about the fact that [Appellant] came up positive on 

urinalysis and I wanted confirmation.” He testified that “I 

knew . . . that the hair test would confirm whether or not he 

had used cocaine.” He indicated that this conclusion was 

“[b]ased on previous knowledge and experience” that the 

affidavit “confirmed.” 

 During the suppression hearing, OSI Special Agent (SA) 

Shannon Nuckols also testified. SA Nuckols was one of six OSI 
United States v. Bethea, No. 05-0041/AF 

5

forensic science consultants. SA Nuckols testified that he did 

not know if hair analysis can detect “a specific single use.” 

But, SA Nuckols testified, a hair analysis will indicate 

“multiple uses over a period of time.” He later clarified that 

“binge or chronic use . . . would show up in hair.” He defined 

binge use as “numerous uses over a short period of time, 12, 24, 

36 hours.” SA Nuckols also testified that “a positive 

urinalysis doesn’t necessarily show a single use. You can get 

multiple uses that show up in a urinalysis.” While SA Nuckols 

was on the stand, the military judge said, “I want to move back 

from the science a little bit and just talk sort of logic or 

common sense. Somebody pops positive on a urinalysis 30 days 

ago, is there a fair shot hair is going to be able to detect 

some drug?” SA Nuckols answered, “Yes, Sir.” 

 On cross-examination, the defense established that SA 

Nuckols had previously testified at the Article 32 investigation2

that “a single small use” of cocaine would not be detected by 

hair analysis. SA Nuckols then expanded, “[M]y experience and 

training is if I had to choose between the two methods, 

urinalysis and hair, if you’re looking for a single use, 

urinalysis would be better. And that typically hair shows 

chronic uses -— multiple uses.” SA Nuckols also agreed with the 

military judge that based on the DOD cutoff levels, a positive 

 

2

 See Article 32, UCMJ, 10 U.S.C. § 832 (2000). 
United States v. Bethea, No. 05-0041/AF 

6

urinalysis is “equally consistent with the tail end of a binge 

use or . . . a very small use [a] short time prior to submission 

of the sample.” 

 The military judge denied the motion to suppress. He 

concluded that “the positive urinalysis alone, coupled with the 

information available to the magistrate, more than adequately 

demonstrates a reasonable likelihood that cocaine or a cocaine 

derivative will be found in the accused’s hair,” especially 

because the seizure would occur “within a month of the alleged 

use.” The military judge concluded that evidence derived from 

seizing the hair was admissible “even if the Magistrate operated 

under the assumption that the accused had only used cocaine on 

one occasion approximately two weeks before the requested 

search.” The military judge concluded that the “[m]agistrate 

relied upon information he had been provided which suggests that 

drug hair testing can detect a single drug use, albeit 

characterized as ‘binge.’” The military judge then observed 

that he was “convinced that it is more than reasonable to 

assume, based upon the contents of the affidavit, that hair drug 

testing can detect a . . . single drug use if the hair test is 

performed within two months of the alleged use, regardless of 

how that use may be characterized.”3

 

3

 We caution that we express no opinion as to the correctness of 

the military judge’s interpretation of “binge” or the accuracy 
United States v. Bethea, No. 05-0041/AF 

7

 The military judge also found that “there was no evidence 

whatsoever, either direct or circumstantial,” that the 

requesting agents had intentionally or recklessly withheld 

relevant information from the military magistrate. The 

military judge then repeated that a hair analysis can detect 

“binge use,” which “can reasonably mean one or a series of large 

doses.” He concluded that SA Nuckols’s testimony and the 

affidavit itself “clearly” indicate that “a single use of 

cocaine can be detected by hair testing, particularly when the 

hair is seized within several months of the alleged use.” 

 The military judge also concluded in the alternative that, 

even if the search authorization had not been supported by 

probable cause, the evidence would be admissible under the good 

faith exception to the exclusionary rule. 

 The Air Force Court of Criminal Appeals affirmed the 

military judge’s ruling in an unpublished opinion.4

 The Air 

Force Court ruled that Appellant’s urinalysis results were 

“sufficient to establish a ‘fair probability’ that the 

appellant’s hair would contain evidence of cocaine use.”5

 The 

Air Force Court also agreed with the military judge that 

regardless of whether the authorization was supported by 

 

of the military judge’s characterization of the ability of hair 

analysis to detect a single use of a controlled substance. 

4

 United States v. Bethea, No. ACM 35381, 2004 CCA LEXIS 175, 

2004 WL 1725024 (A.F. Ct. Crim. App. July 20, 2004).

5

 2004 CCA LEXIS 175, at *5, 2004 WL 1725024, at *2. 
United States v. Bethea, No. 05-0041/AF 

8

probable cause, the evidence would be admissible because the OSI 

agents who seized Appellant’s hair sample “acted in ‘objectively 

reasonable reliance’ upon the magistrate’s facially valid search 

authorization.”6

 

DISCUSSION 

 This case concerns whether Appellant’s urinalysis results 

provided probable cause to support the seizure of a sample of 

his hair. 

 The affidavit presented to the military magistrate 

established that Appellant’s urine contained the metabolite that 

the body produces following the use of cocaine. Neither 

Appellant’s results in particular, nor positive urinalysis 

results in general, suggest whether the individual used a 

controlled substance once or more than once. So Appellant’s 

urinalysis results were equally consistent with a single use of 

cocaine or with multiple uses. 

 The affidavit that was before the military magistrate 

indicated only that hair analysis would detect “binge” or 

“chronic” use of a drug. Yet the military magistrate suggested 

and the military judge expressly stated that they believed hair 

analysis could detect a single use of cocaine. To decide this 

case, we need not engage in a semantic analysis of the meaning 

 

6

 2004 CCA LEXIS 175, at *5-*6, 2004 WL 1725024, at *2 (citing 

United States v. Pond, 36 M.J. 1050, 1059 (A.F.C.M.R. 1993)). 
United States v. Bethea, No. 05-0041/AF 

9

of “binge.” Even if that term is properly understood to refer 

only to multiple uses, we conclude for the reasons set forth 

below that Appellant’s urinalysis results provided probable 

cause to seize a sample of his hair. 

 A military judge’s determination of whether probable cause 

existed to support a search authorization is reviewed for an 

abuse of discretion.7 “The duty of a reviewing court is simply 

to ensure that the magistrate had a substantial basis for . . . 

conclud[ing] that probable cause existed.”8 “In reviewing 

probable cause determinations, courts must look at the 

information made known to the authorizing official at the time 

of his decision. The evidence must be considered in the light 

most favorable to the prevailing party.”9

 “Probable cause to search exists when there is a reasonable 

belief that the person, property, or evidence sought is located 

in the place or on the person to be search[ed].”10 The test for 

probable cause is whether, under the “totality of the 

circumstances,” the magistrate had a “substantial basis” for 

determining that probable cause existed.11 A probable cause 

determination is a “practical, common-sense decision whether, 

 

7

 United States v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001). 

8

 Id. (alternations in original) (internal citations and internal 

quotation marks omitted). 

9

 Id. (internal citation omitted).

10 Military Rule of Evidence 315(f)(2).

11 Illinois v. Gates, 462 U.S. 213, 230, 239 (1983). 
United States v. Bethea, No. 05-0041/AF 

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given all the circumstances set forth in the affidavit before 

him, including the ‘veracity’ and ‘basis of knowledge’ of 

persons supplying hearsay information, there is a fair 

probability that contraband or evidence of a crime will be found 

in a particular place.”12

 The Supreme Court has emphasized that “probable cause is a 

flexible, common-sense standard.”13 A probable cause 

determination merely requires that a person “of reasonable 

caution” could believe that the search may reveal evidence of a 

crime; “it does not demand any showing that such a belief be 

correct or more likely true than false.”14 So even though 

“people often use ‘probable’ to mean ‘more likely than not,’ 

probable cause does not require a showing that an event is more 

than 50% likely.”15 

 

12 Id. at 238. 

13 Texas v. Brown, 460 U.S. 730, 742 (1983). 

14 Id. (emphasis added) (quoting Carroll v. United States, 267 

U.S. 132, 162 (1925)). 

15 United States v. Olson, No. 03-CR-51-S, 2003 U.S. Dist. LEXIS 

24607, at *16, 2003 WL 23120024, at *5 (W.D. Wis. July 11, 2003) 

(citing United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 

1999)). See also Ostrander v. Madsen, Nos. 00-35506, 00-35538, 

00-35541, 2003 U.S. App. LEXIS 1665, at *8, 2003 WL 193565, at 

*2 (9th Cir. Jan. 28, 2003) (“Probable cause is met by less than 

a fifty percent probability, so that even two contradictory 

statements can both be supported by probable cause.”); Samos 

Imex Corp. v. Nextel Communications, Inc., 194 F.3d 301, 303 

(1st Cir. 1999) (“The phrase ‘probable cause’ is used, in the 

narrow confines of Fourth Amendment precedent, to establish a 

standard less demanding than ‘more probable than not.’”); United 

States v. Burrell, 963 F.2d 976, 986 (7th Cir. 1992) (“‘Probable 

cause requires more than bare suspicion but need not be based on 

evidence sufficient to support a conviction, nor even a showing 
United States v. Bethea, No. 05-0041/AF 

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 When evaluated under this standard, the affidavit provided 

the military magistrate with a substantial basis for concluding 

that there was probable cause to authorize the seizure of 

Appellant’s hair. The urinalysis results were consistent with, 

though not necessarily indicative of, multiple uses of cocaine. 

The information presented to the military magistrate indicated 

that an analysis of Appellant’s hair would detect multiple uses 

of cocaine. So it was as likely as not that evidence of cocaine 

use would be found in Appellant’s hair. That degree of 

likelihood more than satisfies the probable cause standard. 

 In light of our holding that there was a substantial basis 

for finding probable cause, we need not consider whether the 

military judge and the Air Force Court were correct when they 

determined that even absent probable cause, the evidence would 

have nevertheless been admissible under the exclusionary rule’s 

good faith exception. 

 

that the officer’s belief is more likely true than false.’”) 

(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)); 

United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987) (“In order 

to establish probable cause, it is not necessary to make a prima 

facie showing of criminal activity or to demonstrate that it is 

more probable than not that a crime has been or is being 

committed.”) (internal quotation marks and citation omitted). 
United States v. Bethea, No. 05-0041/AF 

12

DECISION 

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.