CAAF will hear oral argument in the certified Marine Corps case of United States v. Perkins, No. 18-0365/MC (CAAFlog case page), on Tuesday, January 22, 2019, after the argument in Smith. The Judge Advocate General of the Navy certified two issues to the court, on behalf of the defense:

I. Whether this Court’s holding in United States v. Carter as applied by the Navy-Marine Corps Court of Criminal Appeals in this case, instead of the plain reading of MRE 311(c) this Court applied in United States v. Hoffman, controls in analyzing the applicability of the good faith exception to the exclusionary rule.

II. Whether the military judge erred in denying a defense motion to suppress evidence obtained from a search of Appellant’s home.

Sergeant (E-5) Perkins was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to commit larceny and violation of a general order, and sentenced to reduction to E-1 and a bad-conduct discharge. The conspiracy conviction was supported by evidence of stolen military property that was found in the garage of Perkins’ on-base home. The search authorization that gave military investigators access to that garage is at the heart of the case.

Perkins was in a relationship with a woman who alleged to military law enforcement that he was extorting her with nude photos and videos taken without her consent. She told military investigators that she never actually saw Perkins take a picture or video of her, but she said she once saw him use his cell phone during sexual activity and she also claimed that he had other electronic devices in his home capable of storing pictures and videos. Based on that information, and knowing that Perkins was out of town and had his cell phone with him, military investigators sought and received a search authorization to search Perkins’ home for other devices. They found no illicit pictures or videos in the house, but they did find evidence of other misconduct.

Perkins moved to suppress that other evidence, arguing that the search of his home lacked probable cause. The military judge denied the motion. On appeal, however, the Navy-Marine Corps CCA agreed with Perkins that there was no probable cause to search his home, concluding (in a published opinion) that there was no substantial basis for the commander who authorized the search to conclude that there was a fair probability that investigators would find illicit images or videos in the house. United States v. Perkins, 78 M.J. 550, 557 (N-M Ct. Crim. App. 2018) (link to slip op.). Nevertheless, the CCA affirmed admission of the evidence by applying the good faith exception.

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 good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when three conditions are met:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civil authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

That second requirement, however, as written, doesn’t involve the officer conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if an authorization is invalid and there was no substantial basis to find probable cause to issue it, then the good faith exception does not apply no matter what the officer thought.

The NMCCA’s conclusion that the commander who authorized the search of Perkins’ home had no substantial basis to conclude that there was probable cause to believe that illicit pictures or videos would be found in the home should, therefore, prevent application of the good faith exception. But CAAF has interpreted the exception different from its plain language.

In United States v. Carter, 54 M.J. 414 (C.A.A.F. 2001), the court observed that, as written, the exception would never apply in a case with a finding of no probable cause (which is really a finding of no substantial basis for probable cause, because appellate courts give deference to a finding of probable cause if there was at least a substantial basis for making that finding). Applying the exception as written, CAAF noted, would “effectively abolish the good faith exception in military practice.” 54 M.J. at 421. So CAAF did some interpretation:

“Substantial basis” as an element of good faith examines the affidavit and search authorization through the eyes of a reasonable law enforcement official executing the search authorization. In this context, the second prong of Mil. R. Evid. 311(b)(3) is satisfied if the law enforcement official had an objectively reasonable belief that the magistrate had a “substantial basis” for determining the existence of probable cause.

54 M.J. at 422. Put differently, if the officer objectively believes that there was a substantial basis for finding probable cause to authorize the search, then the officer acts in good faith and the exception may apply even if there wasn’t a substantial basis for finding probable cause.

That interpretation was relatively settled until CAAF unsettled it in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page), another Marine Corps case with a published opinion from the NMCCA. Writing for a unanimous CAAF (that included Senior Judge Royce C. Lamberth of the United States District Court for the District of Columbia, who sat by designation), then-Judge Stucky rejected the Government Division’s arguments in favor of applying the exception and twice distinguished Mil. R. Evid. 311(b)(3) as the military good faith exception, concluding that:

The military good-faith exception need not long detain us in this case. As noted above in Part III.B., the individual issuing the authorization did not have a substantial basis for determining the existence of probable cause, a requirement for application of the good-faith exception. Thus, the military judge abused her discretion in admitting the fruits of the search of Appellant’s digital media.

75 M.J. at 128 (emphasis added). The Hoffmann court did not address the contrary interpretation from Carter, but the following year CAAF acknowledged the inconsistency between Carter and Hoffmann:

We recognize the tension between our discussion of the good-faith doctrine in Hoffmann, 75 M.J. at 127-28, and Carter, 54 M.J. at 419-22. We leave for another day resolution of this tension. . .

United States v. Nieto, 76 M.J. 101, 108 n.6 (C.A.A.F. 2017) (CAAFlog case page). The NMCCA, however, addressed that tension directly in its application of the exception in this case by applying Carter while urging CAAF to reconsider it:

The CAAF has recently reminded the service courts of criminal appeals that “it is simply not for the [service courts] to act on the assumption that an opinion of [the CAAF] has been implicitly overruled.” If we believe that a later decision has called a precedent into question, our role is “to express that viewpoint and to urge [the CAAF’s] reconsideration of [its] precedent[.]” The question of Carter‘s continued application after Hoffmann is a close one. We have concluded that we continue to be bound by Carter. Having heeded the CAAF’s admonition to adhere to its precedent until that court overrules it, we likewise accept the CAAF’s invitation to suggest that a questioned precedent be revisited. We respectfully suggest that Carter should be reconsidered.

Perkins, 78 M.J. at 562 (modifications in original).

The first specified issue asks CAAF to do exactly that, but the second specified issue challenges the CCA’s holding of no probable cause. The Navy-Marine Corps Appellate Government Division’s brief asserts that the CCA got that issue wrong:

Here, unlike Nieto, Special Agent J.J. provided the authorizing official with a substantial basis on which he could reasonably believe that evidence of criminality would be found in Appellant’s house. She relayed to the authorizing official that:

(1) M.I. and Appellant engaged in sexual activity, and Appellant used his cell phone during their sexual activity and “while in bed” with M.I., (J.A. 73, 103);

(2) Appellant may have used other electronic devices to record their sexual activity, (J.A. 73);

(3) M.I. had personal knowledge of the inside of Appellant’s house, including that Appellant had electronic devices in his home that could store the sought-after materials, (J.A. 73);

(4) M.I. was so concerned that Appellant actually had compromising images that she spent thousands of dollars to satisfy Appellant’s demands, (J.A. 99, 103); and

(5) Appellant was returning home, was aware that M.I. had reported him to law enforcement, and had previously threatened that M.I. would “face consequences” if she reported him to law enforcement. (J.A. 70, 103, 120.)

More so than in Clayton, where no evidence connected illicit material to the appellant’s quarters, the Commanding Officer here could make a “practical, commonsense decision” that a “fair probability” existed that evidence of extortion would be found in Appellant’s house. See Clayton, 68 M.J. at 424-25.

Gov’t Div. Br. at 28-29 (paragraphing added). Perkins’ reply brief addresses most of those assertions, though not in order. It explains Perkins using his phone while in bed is not a basis for probable cause to search Perkins home “because there was no basis to believe the phone was in Sergeant Perkins’ home.” Reply Br. at 7. Instead, the phone was with Perkins who was out of state, and the command knew that because “the command had just recently called Sergeant Perkins on his phone for the purpose of revoking his out-of-state leave.” Reply Br. at 7. Perkins’ reply brief also rejects the possibility that other devices might have been used to record the sexual activity, claiming that “the record does not support that assertion.” Reply Br. at 8. Finally, Perkins’ reply argues:

the urgency of the situation or the possibility that evidence could be destroyed does not make it any more or less likely that the evidence, if it existed, was located at Sergeant Perkins’ residence.

Reply Br. at 5. This argument is equally applicable to the fact that storage devices could be stored in the home and that the alleged victim was concerned that the images might exist. Neither the fact that electronic media could be stored in the home, nor the alleged victim’s fear of the contents of the media, nor the possibility that Perkins might destroy the media is a basis to conclude that Perkins actually had illicit images on media devices in his home.

Nevertheless, the Government Division argues that “considering Appellant’s impending return to his house and his continuous threats to M.I. to release illicit material, which M.I. reported could be stored at Appellant’s house, the Commanding Officer was entitled to infer that this evidence was located in Appellant’s home.” Gov’t Div. Br. at 30. Were CAAF to accept that argument, however, it seems like any allegation – standing alone – would support the most intrusive search of the most protected place. After all, electronic storage media is very small, and the home is “at the very core” of the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 511 (1961).

So, assuming that the search lacked probable cause, Perkins urges CAAF to “require the application the plain language of the [military good faith exception] rule in this case as it did in Hoffmann.” App. Br. at 10. The Government Division, however, argues for application of stare decisis. Applying each of the 4+1 factors for stare decisis recently outlined by CAAF in United States v. Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018) (CAAFlog case page), the Government Division argues that the Carter interpretation of Mil. R. Evid. 311(c)(3) is not unworkable or poorly reasoned, is supported by intervening events, is relied upon by participants in the military justice system, if overruled would undermine public confidence in the military justice system, and that no special justification exists to overturn it.

Perkins reply argues the opposite:

This case offers sufficient special justification to overturn a poorly-reasoned precedent in favor of a plain-language reading of MRE 311 to reduce future unlawful searches by requiring that probable cause determinations be made with a substantial basis and by encouraging those determinations be made by the most neutral and detached authorizing official practicable.

Reply Br. at 20.

Case Links:
NMCCA opinion (75 M.J. 120)
Blog post: JAG certifies
Appellant’s brief
Appelllee’s (N-M App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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