On Friday CAAF docketed this case certified by the Judge Advocate General of the Navy:
No. 19-0437/MC. U.S. v. Roberto Armendariz. CCA 201700338. Notice is given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on the following issues:
I. WHETHER THE LOWER COURT ERRED IN OVERTURNING THE MILITARY JUDGE’S ADMISSION OF EVIDENCE WHERE THE MILITARY JUDGE FOUND THAT THE OFFICIAL WHO AUTHORIZED THE SEARCH WAS THE ACTING COMMANDER WITH FULL AUTHORITY AND CONTROL OVER THE REMAIN BEHIND ELEMENT, EXCEPT FOR AUTHORITY TO IMPOSE NONJUDICIAL PUNISHMENT AND CONVENE COURTS-MARTIAL?
II. WHETHER THE LOWER COURT ERRONEOUSLY APPLIED THE EXCLUSIONARY RULE UNDER MIL. R. EVID. 311(a)(3) BY FAILING TO APPROPRIATELY BALANCE THE BENEFITS OF DETERRENCE AGAINST THE COSTS TO THE JUSTICE SYSTEM, AND THEREBY ERRED IN OVERTURNING THE MILITARY JUDGE’S DECISION NOT TO APPLY THE EXCLUSIONARY RULE?
III. WHETHER THE LOWER COURT ERRED IN FINDING THE GOOD-FAITH EXCEPTION DID NOT APPLY WHERE THIS COURT HAS, IN UNITED STATES V. CHAPPLE, 36 M.J. 410 (C.M.A. 1993), HELD THE EXCEPTION APPLIES EVEN WHEN THE INDIVIDUAL ISSUING THAT SEARCH AUTHORIZATION LACKED AUTHORITY UNDER MIL. R. EVID. 315(d)(1), AND HERE LAW ENFORCEMENT REASONABLY BELIEVED THE ACTING COMMANDER WAS AUTHORIZED TO ISSUE SEARCH AUTHORIZATIONS?
Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 23rd day of September, 2019.
The NMCCA’s opinion is available here. Reviewing a search authorization issued by the officer in charge of a remain-behind element (the portion of a unit remaining in garrison while the bulk of the unit deploys), the CCA held that the authorization was invalid because the officer in change was not a commander within the meaning of Mil. R. Evid. 315. It further held that “exclusion will deter future commanders from impermissibly delegating their inherent command authorities,” and that “exclusion will deter those who are not commanders, and therefore lack command authority,from attempting to exercise authorities they do not possess.” Slip op. at 24.