Argument Preview: What degree of precision satisfies the Fourth Amendment, in United States v. Eppes, No. 17-0364/AF
CAAF will hear oral argument in the Air Force case of United States v. Eppes, No. 17-0364/AF (CAAFlog case page), on Wednesday, November 8, 2017, at 4 p.m. at Cornell Law School in Ithaca, New York. Two granted issues present Fourth Amendment challenges to two separate searches:
I. Whether the search of Appellant’s personal bags exceeded the scope of the search authorization where the agent requested authority to search Appellant’s person, personal bags, and automobile, but the military magistrate authorized only the search of Appellant’s person and automobile and did not authorize the search of Appellant’s personal bags,
II. Whether Appellant’s right to freedom from unreasonable search and seizure under the Fourth Amendment was violated when there was no probable cause for the 7 December 2012 warrant.
Captain (O-3) Eppes conditionally pleaded guilty to various offenses primarily involving travel claim fraud. The conditional pleas preserved his motion to suppress the evidence discovered in two searches: one on December 7, 2012 (of Eppes’ residence; Issue II), and the second on February 5, 2013 (of Eppes’ bag; Issue I). The December search was authorized by a warrant issued by the District of Columbia, while the February search was authorized by a military search authorization.
The Air Force CCA considered the granted issues and concluded that the good faith exception permitted the search of the bag (Issue I), and that the civilian judge’s probable cause determination was supported by evidence of appellant’s abuse of his official position (Issue II). CAAF then granted review.
For the first issue, Eppes’ brief argues that the search of his bag was specifically not allowed in the military search authorization:
Agents of AFOSI requested authority to search Appellant’s person, his personal bags, and his automobile. The military magistrate issued a search authorization authorizing search of Appellant’s person and automobile; the magistrate did not authorize the search of Appellant’s personal bags.
App. Br. at 4. This argument relies on the contention that:
It is clear that SA Cooper sought authority to search Appellant’s personal bags. It is equally clear that the military magistrate did not grant that authority.
App. Br. at 7. Eppes litigated this at trial and the military judge concluded that the agents “reasonably searched and seized items within the scope of the warrant.” App. Br. at 8 (quoting record). Eppes’ brief challenges this conclusion as “somewhat cagey insofar as the military judge does not come right out and say that there was an authorization to search the bags (because clearly there was not).” App. Br. at 9.
The Air Force Appellate Government Division’s brief does not concede that the authorization excluded the bag:
In this case a common sense reading of the authority to search a person for documents would include the authority to search for those documents in bags the person has in his possession. To interpret the authority to search Appellant as forbidding a search of a bag possessed by Appellant most likely to contain the object of the search appears counterintuitive.
Gov’t Div. Br. at 15. The brief cites to CAAF’s decision in United States v. Fogg, holding that “officers in executing a search warrant are often required to exercise judgment as to the items or things to be seized. In exercising this judgment, the police are not obliged to interpret the warrant narrowly.” 52 M.J. 144, 148 (C.A.A.F. 2010) (marks and citations omitted).
The Government Division also argues that the good faith exception to the exclusionary rule applies because “it was more reasonable for agents to interpret the authority to search Appellant as including the authority to search items of his personal property in his possession when he was searched.” Gov’t Div. Br. at 19. The good faith exception exists because the exclusionary rule is designed to deter police misconduct and searches conducted in good faith are not misconduct. To bolster its argument that the search of Eppes’ bag was in good faith, the Government Division highlights that “when agents discovered apparent evidence of a crime outside the scope of the warrant, they stopped and sought legal advice.” Gov’t Div. Br. at 19-20.
Eppes, however, argues that the good faith exception to the warrant requirement “does not apply to cases involving the improper execution of a constitutionally valid warrant.” App. Br. at 4. But his reply brief goes further:
It is difficult to understand how experienced AFOSI agents failed to notice the discrepancy between the authorization they sought and the authorization that was granted. They either didn’t read the search authorization, or read it and ignored its limitation. In either case, they acted with “‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for [Appellant’s] Fourth Amendment rights.” See Davis v. United States, 564 U.S. 229, 238 (2011).
Reply Br. at 7.
For the second issue, Eppes’ brief argues that:
In this case, the agent described the offenses that Appellant was believed to have committed, but does not explain at all why he believed any evidence of those crimes would be found in Appellant’s home or on Appellant’s computer. . . . The agent made no attempt whatsoever to link the misconduct described in the affidavit with any of the myriad devices falling within the affidavit’s exceptionally broad definition of “computer hardware.”
App. Br. at 19 (emphasis in original). In response, the Government Division points to the affidavit’s identification of “falsified documents and emails,” Gov’t Div. Br. at 36, that “establishes a reasonable probability that evidence of these frauds would be found on Appellant’s computers and digital devices,” Gov’t Div. Br. at 37. Eppes’ reply brief seems to (unintentionally) support this argument:
the e-mails could have been sent from any number of devices, including a smartphone or a tablet; they could also have been sent from any physical computer or device worldwide, including workplace computers, or publicly accessible computers found in libraries or internet cafés. . .
Reply Br. at 15.
The briefs also consider last term’s decision in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), in which a divided CAAF found a search authorization lacked probable cause because it was primarily based on military investigators’ experience-based assertions regarding how people use portable electronic devices. Nieto was something of an extension of United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page), where the court unanimously rejected an intuitive relationship between a child enticement offense and the possession of child pornography as a basis for probable cause. But the evidence discovered in Nieto was unrelated to the original allegations that prompted the search, while the evidence discovered in this case was exactly what the investigators were looking for. While this seems like a post hoc justification for a search, it’s a significant difference from the facts of Nieto that may well validate the warrant.
It’s hard to make a prediction about next week’s oral argument in this case, but technical precision and the need to craft a workable rule seem to be a common themes for the two issues. If the search authorization for Eppes’ person and vehicle did not reasonably include the bags he had with him, CAAF will have to say so in a way that is easily applied to a wide variety of searches. Similarly, if the agent’s request for a warrant to search electronic devices on the basis of suspected fraud did not support a finding of probable cause linking the devices to the fraud, CAAF will have to address how explicit such a link must be. Those are potentially difficult tasks and the court likely will resist any request that it impose rigid, technical requirements on the discretion of military officials and civilian judges to issue warrants and authorize searches.