CAAF will hear oral argument in the Army case of United States v. Smith, No. 18-0211/AR (CAAFlog case page), on Tuesday, January 22, 2019, at 9:30 a.m. The first of two cases to be argued that day (both involving the good faith exception to the exclusionary rule), Smith involves an appellate-stage challenge to the admission of the fruits of a search of electronic devices.

CAAF granted review of two issues:

I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

Warrant Officer One (W01) Smith was convicted of two specifications of indecent recording in violation of Article 120c(a) (2012) and sentenced to confinement for two months and a dishonorable discharge. The allegations arose after a young woman saw Smith take a photograph under her dress using an iPhone. She sounded the alarm, Smith was quickly apprehended, and the iPhone was seized. Military investigators then sought authorization to search the iPhone and also to seize and search any other Apple product in Smith’s residence under the theory that the iPhone could synchronize with the other devices. The authorization was granted, several other devices were seized, and all of the devices were sent for examination.

The examination found no incriminating evidence on the devices seized from Smith’s home, and the examiners were initially unable to access the iPhone because it was locked. But because Smith previously synced his iPhone with one of his other devices, the investigators were able to use that prior connection to access the iPhone. After doing that, they discovered incriminating videos on the iPhone. Smith’s defense counsel moved to suppress the videos, arguing that the iPhone was unlawfully seized (at the time of the woman’s complaint) and that the search authorization of the iPhone was not supported by probable cause. The motion was overruled, the videos were admitted, and Smith was convicted.

On appeal, Smith renewed his objection to the admission of the videos, but with a new argument: that the search of the devices from his home – that made it possible to search the iPhone – lacked probable cause. The argument was based on CAAF’s opinion in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), part of the #7 Military Justice Story of 2017, and claimed an insufficient nexus between Smith’s phone and other devices. The Army CCA refused to consider Smith’s new argument and also concluded that the good faith exception applied (while noting that the military judge also determined that the inevitable discovery doctrine applied).

CAAF then granted review of two issues that embody a plethora of questions about the trial and appellate proceedings. The first issue presumes that the search of the devices seized from Smith’s home was unlawful (something no court has said), it presumes that the incriminating videos on Smith’s iPhone would never have been discovered but-for the search of the other devices (a question of technological capabilities), and it challenges the application of the good faith exception under the facts of this case. The second granted issue challenges the Army CCA’s refusal to consider Smith’s new suppression argument based on Nieto, and it suggests that the argument isn’t so much new as it is just a clarification of the trial stage objection that was not succinctly articulated.

It’s a complicated case that is made even more complicated by the briefs, because Smith offers a second new basis for suppression (that investigators exceeded the scope of the search authorization) and the Army Government Appellate Division makes numerous concessions.

The basic premise of Smith’s brief is that the investigators discovered the incriminating videos on his iPhone by “first search[ing his laptop] for a particular file necessary to unlock the password-protected iPhone,” then “isolat[ing] that file from other files on the seized laptop,” and then “manipulat[ing] the file in order to gain access to the iPhone.” App. Br. at 16. Highlighting the absence of a nexus between the iPhone and the laptop, Smith argues that the authorization to search the laptop lacked probable cause and so was unlawful. App. Br. at 13-14. Smith then asserts that the incriminating videos are derivative of that unlawful search and should have been suppressed. App. Br. at 17.

The Army Government Appellate Division’s brief concedes that the authorization to search Smith’s other devices was flawed, agreeing that “the magistrate did not develop a sufficient nexus to determine probable cause to search appellant’s laptop (and other devices recovered from his home).” Gov’t Div. Br. at 18. The Government Division also “concedes the CCA erred in its opinion by deeming appellant’s new ground for suppression was waived.” Gov’t Div. Br. at 32. Nevertheless, the Government Division asks CAAF to affirm by applying the good faith exception, because:

Even though appellant’s laptop was not seized pursuant to a proper determination of probable cause, it was seized by INV Kesler in good faith. Special Agent Pugliese believed he was using a technological key found on a lawfully seized device to unlock a lawfully seized iPhone. That does not rise to the level of police misconduct that the exclusionary rule was designed to deter. His actions do not negate proper application of the good faith doctrine.

Gov’t Div. Br. at 16.

As a general rule, law enforcement must obtain a warrant prior to seizing or searching property and the warrant must be based on probable cause. If those requirements are not met, the remedy is exclusion of any evidence discovered. Exclusion is a judicially-created rule in the civil courts but it is codified for courts-martial as Mil. R. Evid. 311. That rule, however, only applies when suppression “results in appreciable deterrence,” and when “the benefits of such deterrence outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3).

The civil courts also recognize – and the military rules codify – a good faith exception to the exclusionary rule, based on the conclusion that there is no justification for the practical cost of excluding evidence of guilt when a law enforcement officer “is acting as a reasonable officer would and should act in similar circumstances.” United States v. Leon, 468 U.S. 897, 920 (1984). See also Mil. R. Evid. 311(c)(3). In other words, if law enforcement got a warrant and reasonably relied on the warrant, but the warrant was flawed, then there is no bad conduct for exclusion to deter and the costs of exclusion will outweigh the benefits.

The precise requirements for application of the good faith exception codified by Mil. R. Evid. 311(c)(3) is an issue that CAAF will review more directly in a different case (Perkins; to be argued on the same day as Smith), but Smith involves the same question because military investigators received authorization to seize and search all of Smith’s devices and the Government Division concedes that the authorization was flawed. If the good faith exception applies to the search of Smith’s laptop for the file that granted access to Smith’s iPhone (where the incriminating videos were found), then the videos were properly admitted even though the authorization was flawed.

Yet Smith goes one step further and tries to avoid any potential application of the good faith exception with a new argument: that investigators exceeded the scope of the search authorization. Smith’s brief asserts:

According to his own testimony, SA Pugliese believed that he had authority to search for “pictures, video, emails, documents, and texts related to other sexual misconduct.” However, his search of the laptop for the file necessary to unlock the iPhone does not fall into any of these categories. Special Agent Pugliese’s search was for something entirely different. . . .

Assuming arguendo that the search authorization was valid, SA Pugliese’s actions still exceeded the scope of the authorized search. The good faith exception is inapplicable where SA Pugliese, by his own admission, exceeded the scope of what he believed he was able to search. The willful and purposeful actions of a government agent in exceeding the scope of a search authorization are not objectively reasonable.

App. Br. at 16-17 (citations to record omitted). In other words, even if the good faith exception applies to the investigators’ reliance on the search authorization, the investigators’ actual conduct exceeded the scope of the authorization (and so can’t be saved by good faith reliance on the authorization).

It’s a highly fact-specific claim, and the Army court’s refusal to consider arguments that Smith did not present at trial puts CAAF in the difficult position of having to address it in the first instance. Considering the Government Division’s concession that the Army court’s approach was wrong, unless CAAF interprets the good faith exception so broadly that it will apply in this case no matter what, then it seems likely that CAAF will remand this case for the Army court to actually consider Smith’s claims.

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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