CAAF decided the certified Marine Corps case of United States v. Perkins, 78 M.J. 381, No. 18-0365/MC (CAAFlog case page) (link to slip op.), on April 23, 2019. Selectively reading Mil. R. Evid. 311 (which codifies various rules for evidence obtained as the result of an unlawful search or seizure), a majority of the court holds that Mil. R. Evid. 311(c)(3)(B) does not mean what it says, repudiating the recent unanimous decision in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016) (CAAFlog case page), that applied the rule as written, and reinvigorating the not-quite-unanimous United States v. Carter, 54 M.J. 414, 421 (C.A.A.F. 2001), that held that “the phrase ‘substantial basis’ has different meanings, depending on the issue involved.” Accordingly, assuming that the search authorization in this case was issued without a substantial basis for finding probable cause, CAAF nevertheless applies the good faith exception even though Mil. R. Evid. 311(c)(3)(B) requires more, affirming the published decision of the Navy-Marine Corps CCA.

Judge Maggs writes for the court joined by all but Judge Ohlson, who dissents.

The Judge Advocate General of the Navy certified two issues, both 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 found in the garage of Perkins’ on-base home. CAAF’s review focuses on the search authorization that gave military investigators access to that garage.

Perkins was in a relationship with a woman who alleged to military law enforcement that Perkins extorted 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. Perkins’ commanding officer issued the authorization and agents searched Perkins’ home where they found no illicit pictures or videos, but instead found military property that eventually led to Perkins’ conviction of the conspiracy and orders violation.

At trial, Perkins moved to suppress the evidence seized from his home on the basis that the search authorization lacked probable cause, was unconstitutionally vague, and was insufficiently particular. 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. In particular, the CCA found that the woman’s allegation of extortion “did not provide probable cause to search [Perkins’] home.” 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 search warrant – or, in the military, a search authorization – prior to conducting a search, and the warrant must be based on probable cause. If that doesn’t happen, 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. Section III of the Military Rules of Evidence actually codifies a wide variety of judge-made law regarding search and seizure (unlike the Federal Rules of Evidence, which do not contain similar codification), and the military rules include many military-specific applications.

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, because the purpose of excluding unlawfully-obtained evidence is to incentivize law enforcement to follow the law, if law enforcement got a warrant and reasonably relied on the warrant, but the warrant was flawed, then law enforcement acted in good faith and there is no bad conduct to be deterred by excluding the evidence.

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, 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 if there was no substantial basis for probable cause to issue it in the first instance, then the good faith exception does not apply no matter what the executing officer thought. That’s different from the test established by the Supreme Court in Leon.

CAAF, however, abandoned a plain-language application of Mil. R. Evid. 311(c)(3) nearly 20 years ago, in United States v. Monroe, 52 M.J. 326, 332 (C.A.A.F. 2000). In that case, and with little discussion, CAAF applied the good faith exception as envisioned by the Supreme Court in Leon rather than as set forth in Mil. R. Evid. 311(c)(3). The following year, in Carter, CAAF explained why it did that:

[W]e conclude that Mil. R. Evid. 311(b)(3) [later moved to the current (c)(3)] does not establish a more stringent rule than Leon did for civilian courts. The first prong (a search warrant or search authorization issued by competent authority) is identical to the civilian rule. The second prong addresses the first and third exceptions noted in Leon, i.e., the affidavit must not be intentionally or recklessly false, and it must be more than a “bare bones” recital of conclusions. It must contain sufficient information to permit the individual executing the warrant or authorization to reasonably believe that there is probable cause. The third prong addresses the second and fourth exceptions in Leon, i.e., objective good faith cannot exist when the police know that the magistrate merely “rubber stamped” their request, or when the warrant is facially defective.

Carter, 54 M.J. at 421. Put differently, in Carter CAAF held that Mil. R. Evid. 311(c)(3) is merely redundant with Supreme Court precedent, even though it is worded differently. Only Judge Sullivan expressed concern with that approach, decrying “the majority’s tortured construction of Mil. R. Evid. 311(b)(3).” 54 M.J. at 423 (Sullivan, J. concurring). He did not suggest following the rule as written, however, but instead quoted the 1992 concurring opinion of Judge Cox that “it is time to de-Manualize these provisions because people keep trying to ‘apply’ them, thinking they are rules.” 54 M.J. at 424 (quoting United States v. Lopez, 35 M.J. 35, 45 n.3 (C.A.A.F. 1992) (Cox, J. concurring)).

Nevertheless, Mil. R. Evid. 311(c)(3) remained a rule – though not one CAAF was willing to actually follow – until Hoffmann, where then-Judge Stucky wrote for a unanimous CAAF (that included Senior Judge Lamberth of the United States District Court for the District of Columbia, who sat by designation), distinguished Mil. R. Evid. 311(b)(3) as the military good faith exception, and applied it as written to suppress child pornography due to the absence of a substantial basis for finding probable cause for the search. 75 M.J. at 128. By recognizing Mil. R. Rvid. 311(c)(3) as the military good faith exception, Hoffmann seemingly reversed the holding of Carter that only the judge-made rule from Leon applies.

Now, with its opinion in Perkins, CAAF reconciles Hoffmann and Carter, unequivocally disregards the rule as written, and concludes that “the NMCCA properly followed our decision in United States v. Carter, 54 M.J. 414 (C.A.A.F. 2001), when applying M.R.E. 311(c)(3).” Slip op. at 2.

Judge Maggs’ majority opinion addresses three issues: (1) The substantial basis requirement in Mil. R. Evid. 311(c)(3)(B); (2) the reasonable reliance requirement in Mil. R. Evid. 311(c)(3)(C); and (3) Perkins’ argument that the commander who authorized the search abandoned his role and merely rubber stamped the agent’s request for the authorization.

First, addressing the substantial basis requirement, Judge Maggs explains:

Under M.R.E. 311(c)(3)(B), as noted above, the second requirement for the good faith exception is that “the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause.” In Carter, we recognized a difficulty in construing the language of this provision. 54 M.J. at 421−22. The trouble is that under United States Supreme Court precedent, when a defendant seeks to exclude evidence on grounds that probable cause does not exist, “the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . [concluding]’ that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238 (1983) (alterations in original) (citation omitted). This test for reviewing whether there was probable cause is nearly identical in language to the test stated in M.R.E. 311(c)(3)(B) for the second requirement of the good faith exception. Accordingly, if M.R.E. 311(c)(3)(B) were read literally, in any situation in which a court concluded that probable cause did not exist, the court would also have to conclude that the requirement of M.R.E. 311(c)(3)(B) was not met. Under such an interpretation, as we explained in Carter, “the good-faith exception would not be an exception at all, and the language would serve no purpose.” 54 M.J. at 421.

Slip op. at 10. That analysis is pretty dense, but unpacking it reveals two significant departures from the text of the Military Rules of Evidence. Not only does CAAF not apply Mil. R. Evid. 311(c)(3)(B) as written (and instead applies the exception as invented by the Supreme Court in Leon), but CAAF also relieves the prosecution of its Mil. R. Evid. 311(d)(5)(A) burden to prove the lawfulness of any search or seizure (and instead applies the deference granted by the Supreme Court in Gates).

First, Judge Maggs writes that “under United States Supreme Court precedent, when a defendant seeks to exclude evidence on grounds that probable cause does not exist, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Slip op. at 10 (quoting Gates, 462 U.S. at 238) (marks omitted). Gates certainly held that when a court reviews a warrant it does not determine probable cause de novo but rather it gives substantial deference to the magistrate who issued the warrant, however that is because the basis for a warrantless search is reviewed de novo. A search warrant gets special deference in order to give law enforcement an incentive to get search warrants, because “were we to eliminate this distinction, we would eliminate the incentive.” Ornelas v. United States, 517 U.S. 690, 699 (1996). The Military Rules of Evidence, however, provide no such deference for a search authorization, nor do they limit a military judge’s duty to merely simply ensuring that the authorizing official had a substantial basis for concluding that probable cause existed. To the contrary, Mil. R. Evid. 315(f)(1) states that search authorizations “must be based upon probable cause,” Mil. R. Evid 311(b)(1) states that a search in violation of the military rules is “unlawful,” and Mil. R. Evid. 311(d)(5)(A) states that:

When the defense makes an appropriate motion or objection . . . the prosecution has the burden of proving by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure. . .

The rules contain not even a whiff of the deference afforded by civil courts (that apply Gates, not the military rules), nor is there room for such deference without shifting the burden that the rule unequivocally places on the prosecution. Judge Maggs’ analysis, however, proceeds as if those Presidentially-prescribed rules simply don’t exist.

Second, having cited Gates (and ignored the differing military rules), Judge Maggs writes that: “This [Gates] test for reviewing whether there was probable cause is nearly identical in language to the test stated in M.R.E. 311(c)(3)(B) for the second requirement of the good faith exception.” Slip op. at 10. That’s certainly true. But if the Gates test doesn’t apply to the question of whether there was probable cause to issue the search authorization (because the military rules prescribe a different standard), then there’s nothing wrong with Mil. R. Evid. 311(c)(3)(B) applying the Gates test somewhere else. Rather, it’s quite sensible for Gates deference to apply to the good faith exception where the prosecution has the burden to prove that the authorization was supported by actual probable cause. Judge Maggs’ analysis, however, continues application of Gates deference ab initio, requiring only a substantial basis for finding probable cause – and not actual probable cause – to validate the authorization. In so doing, CAAF denies the military rules the effect of their plain meaning.

It’s easy to imagine how the rules would work in harmony if CAAF affirmed what Judge Stucky wrote in Hoffmann; that “the President, exercising his authority under Article 36, UCMJ, 10 U.S.C. § 836 (2012), promulgated a military good-faith exception rule,” that is different from the similar exception identified by the Supreme Court in Leon. 75 M.J. at 127 (emphasis added). If the defense objected that a search authorization lacked actual probable cause (as occurred in this case), then the prosecution must prove that there was actual probable cause (under Mil. R. Evid. 315(f)(1) and Mil. R. Evid. 311(d)(5)(A)). If there wasn’t actual probable cause, then there must have been at least a substantial basis for the commander who issued the authorization to have found probable cause (Mil. R. Evid. 311(c)(3)(B)) in order to salvage the fruits of the search under the good faith exception. If there was neither actual probable cause not a substantial basis for finding probable cause, then the exclusionary rule applies.

CAAF, however, is unanimous in its rejection of the plain language reading of the military rule(s). Judge Maggs and the majority “disapprove the decision in Hoffmann to the extent that it differs from Carter.” Slip op. at 13. And Judge Ohlson’s dissenting opinion agrees that because of “the principal of stare decisis . . . we must act as if the plain language of Military Rule of Evidence (M.R.E.) 311(c)(3)(B) does not really say what it in fact clearly says.” Diss. op. at 1 (n.1). It’s a remarkable holding, particularly in an era when – as Justice Kagan recently observed – “we’re all textualists now.”

Having found consensus in rejection of the plain language of Mil. R. Evid. 311(c)(3)(B), Judge Maggs considers whether the military law enforcement agent had a substantial basis for determining the existence of probable cause (not whether the commander who issued the authorization had a substantial basis for determining the existence of probable cause). Of course, military law enforcement don’t make probable cause determinations, so it’s a strange analysis. Its resolution is even stranger:

The NMCCA properly identified factors indicating that Special Agent Jurj had an objectively reasonable belief that Colonel Martinez had a substantial basis for determining the existence of probable cause. Most significantly, Special Agent Jurj received and apparently relied on the advice of appropriate government lawyers: the local trial counsel, the regional trial counsel, and the staff judge advocate. When Colonel Martinez issued the authorization, Special Agent Jurj could reasonably have concluded that Colonel Martinez was confirming what these three lawyers had already told her.

Slip op. at11. In other words, the agent had a substantial basis for determining the existence of probable cause because she got advice from three military lawyers. Objectively bad advice, it turns out.

Judge Maggs then turns to the reasonable reliance requirement of the good faith exception in Mil. R. Evid. 311(c)(3)(C). In addition to the absence of probable cause, Perkins also challenged application of the good faith exception on the basis that the commander who authorized the search (Colonel Martinez) merely rubber stamped the request from the military law enforcement agent (Special Agent Jurj). Judge Maggs explains:

[W]e held in Carter [that] law enforcement agents do not act in good faith if they “know that the magistrate merely ‘rubber stamped’ their request, or when the warrant is facially defective.” 54 M.J. at 421. In this case, even if Colonel Martinez had “rubber-stamped” the application for the search authorization—a contention that we address below—there is no evidence to support a finding of fact that Special Agent Jurj “knew” this. On the contrary, her testimony shows the opposite. After Special Agent Jurj made her presentation to Colonel Martinez, he did not immediately authorize the search. Instead, Special Agent Jurj testified, “Colonel Martinez wanted additional information. He wanted us to explain all the facts in detail, which I went [over] in detail with him as well as Major Funk.” Colonel Martinez’s request for “all the facts in detail” before making a decision would have indicated to Special Agent Jurj that Colonel Martinez was not rubber-stamping the application.

Slip op. at 14. That’s a fact-specific determination. Judge Ohlson’s dissenting opinion, however, rejects it:

In the instant case, the facts presented in support of the search authorization were bare bones; those facts were predicated on uncorroborated assertions of a single individual of unknown credibility; the facts failed to articulate any particularized nexus linking the item to be seized with the place to be searched; the Government improperly invoked exigent circumstances as a basis for the search authorization; the commander abdicated his role as a neutral and detached official upon the Government’s appeal to his duties and responsibilities as a commanding officer; there is nothing in the record indicating the degree to which the commanding officer actually substantively analyzed the facially deficient information presented to him at the time of the search authorization request; and at a hearing on a suppression motion, the commanding officer was notably unable to articulate in an affidavit how the facts of the case caused him to conclude that probable cause existed at the time he granted the search authorization. Therefore, it was facially, clearly, and objectively unreasonable for the commander to authorize the search. Under these circumstances, no reasonable law enforcement officer would rely on the commander’s search authorization.

Diss. op. at 10-11 (citation omitted).

Remarkably, however, while Judge Maggs and the majority credit the advice of the three military lawyers as giving the agent a substantial basis for finding probable cause, the opinion doesn’t consider whether those military lawyers merely rubber stamped the agent’s request. Rather, the majority finds that the bad advice of those lawyers is a reason to apply the good faith exception:

Although Special Agent Jurj may have misunderstood the law regarding what constitutes probable cause, she made the mistake by relying on the opinion of multiple attorneys.

Slip op. at 14.

That’s enough to address the good faith exception, however Judge Maggs’ opinion addresses one last thing:

Citing Leon, rather than the specific language of M.R.E. 311, Appellant also argues that the evidence must be suppressed because Colonel Martinez “ ‘wholly abandoned his judicial role’ ” and “simply rubber-stamped Special Agent [Jurj’s] bald assertion that probable cause existed.” . . .

In this case, however, we decline to consider Appellant’s argument because Appellant has waived this argument. Under M.R.E. 311(d)(2)(A), arguments for suppression of evidence under M.R.E. 311 that are not made at trial are waived. . . . Here, Appellant did not raise his rubber-stamping argument at trial when he argued that there was no probable cause for the search authorization. . . . Like the NMCCA, we will not address this argument on the merits.

Slip op. at 15. It’s hard to see this as anything but a return of waiver mania, for a number of reasons. First, while Mil. R. Evid. 311(d)(2)(A) requires the defense to make suppression motions prior to entry of  pleas – and recent CAAF decisions demand that the objection be particularized – the requirement of specificity only arises when a military judge imposes it. Mil. R. Evid. 311(d)(3) explains that “the military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence . . .” (emphasis added). That didn’t happen in this case. Second, even though Judge Maggs writes that the majority “decline[s] to consider Appellant’s [rubber-stamping] argument,” the majority actually does consider the argument under Mil. R. Evid. 311(c)(3)(C). Finally, rubber stamping is not a basis to suppress an otherwise-valid authorization supported by probable cause; it’s merely a reason why the good faith exception shouldn’t apply (an exception to the exception). CAAF explained as much in Carter, where it identified rubber-stamping as one of “four circumstances where the ‘good faith’ exception would not apply” Carter, 54 M.J. at 419. Accordingly, since the prosecution did not raise the good faith exception until appeal, there was nothing for Perkins to waive at trial. Judge Ohlson highlights that reality in his dissenting opinion:

The majority now endorses and adopts this approach. Similarly, for the first time on appeal to the CCA, Appellant argued that the good faith exception does not apply to this case because the commanding officer rubberstamped the search authorization request. Not only does the majority reject this argument, however, it actually prevents Appellant from even making this argument, asserting that it was waived because Appellant did not raise it at trial. Thus, even though the Government can raise the good faith exception for the first time on appeal, under the majority’s approach Appellant is foreclosed from raising for the first time on appeal one of the four explicit limitations to the good faith exception that the Supreme Court specifically listed in Leon.

Diss op. at 2-3 n.2 (citation omitted). Intent on finding waiver, however, the majority redefines rubber-stamping as an independent basis for suppression:

The dissent asserts that Appellant did not waive the “rubber-stamping” argument in this case because he “was not required to invoke an ‘exception to this exception’ at trial” given that “the good faith exception was not raised by the Government or the military judge at the trial court level.” United States v. Perkins, __ M.J. __, __ (2) (Ohlson, J, dissenting). This assertion assumes that rubber-stamping is merely an exception to the good faith exception. This assumption is incorrect. A fundamental principle of the Fourth Amendment is that “[a] magistrate failing to ‘manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application’ and who acts instead as ‘an adjunct law enforcement officer’ cannot provide valid authorization for an otherwise unconstitutional search.” Leon, 468 U.S. at 914 (quoting Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–27 (1979)). Accordingly, the accused can argue in the first instance that a search authorization was invalid because the commander rubber-stamped the government’s application; the accused need not first show that the search authorization was invalid for some other reason and then wait for the government to argue that its agents acted in good faith before raising a rubber-stamping objection. See, e.g., United States v. Clayton, 68 M.J. 419, 425−26 (C.A.A.F. 2010) (upholding the military judge’s determination that a warrant was valid because, among other reasons, the magistrate did not abandon his judicial role and act as a rubber stamp for the government).

Slip op. at 15-16 n.13 (emphases added). Put differently, CAAF holds that a search authorization issued by a competent authority and supported by actual probable cause is nevertheless invalid if the commander rubber-stamped the law enforcement request for the authorization. That’s a new basis to suppress that applies to every authorization no matter how strong the probable cause basis for the request. Furthermore, it’s the prosecution’s burden to prove by a preponderance of the evidence that the commander did not rubber-stamp the application. See Mil. R. Evid. 311(d)(5)(A).

Accordingly, based on the rule now announced in Perkins, the failure of the prosecution to prove that the commander did not rubber-stamp a search authorization – perhaps because the commander did not thoroughly investigate the basis for the request, scrupulously document the process, and maybe even hold a hearing before authorizing the search – will not only undermine any good faith exception, it will invalidate the authorization outright and provide an independent basis for suppression. The defense need only “argue in the first instance that a search authorization was invalid because the commander rubber-stamped the government’s application.” Slip op. at 16 n.13.

Case Links:
NMCCA opinion (78 M.J. 550)
Blog post: JAG certifies
Appellant’s brief
Appelllee’s (N-M App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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