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.
One of those military-specific applications was at issue in United States v. Perkins, 78 M.J. 381 (C.A.A.F. Apr. 23, 2019) (CAAFlog case page), where law enforcement conducted a search of an on-base residence based on an authorization that lacked probable cause. Specifically, after Sergeant Perkins’ girlfriend claimed that Perkins was extorting her with nude photos and videos taken without her consent (though she never saw any such photos or videos, nor did she ever see him record her in such a way), Naval Criminal Investigative Service agents obtained an authorization to search Perkins’ home for electronic devices capable of storing digital videos and photographs. Such a broad authorization was a license for the agents to disassemble the structure (since a memory card is the size of a fingernail and could be hidden anywhere, including in the walls), but they didn’t bother. Rather, when they first entered the home they noticed military property in the garage, and so they obtained an expanded authorization for that property. Perkins was ultimately convicted of only conspiracy to commit larceny and an orders violation.
Perkins had, however, sought exclusion of the military property discovered in his home on the basis that the search authorization lacked probable cause. After all, it’s hard to see a reasonable belief that images or videos (that nobody claimed to have seen or even to have seen produced) would be found somewhere in a private home when the only device implicated in the allegation is a cell phone that was in the possession of the alleged wrongdoer (himself a non-commissioned officer in the Marine Corps), who was not in the home. And yet, somehow the military judge agreed that there was probable cause for the search. But the Navy-Marine Corps Court of Criminal Appeals reached the opposite conclusion.
Observing that nobody claimed to have seen either Perkins actually record his girlfriend or any resulting images (rather, the girlfriend merely claimed that Perkins had used his cell phone during sexual activity), and that there was no reason to believe that Perkins’ cell phone was anywhere other than in his possession (not only outside the home at that point, but also in a different state where Perkins was on leave), nor was there any reason to believe that the phone’s memory card was anywhere other than in the phone, the CCA concluded that “there was no substantial basis for the [commanding officer who issued the authorization] to conclude there was a fair probability that NCIS would find illicit images or videos of [the girlfriend] in [Perkins’] house.” United States v. Perkins, 78 M.J. 550, 557 (N-M. Ct. Crim. App. 2018).
Nevertheless, the NMCCA affirmed admission of the evidence and Perkins’ convictions by applying the good faith exception. In so doing, the CCA chose to apply CAAF’s decision in United States v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001), rather than its more recent decision in United States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016) (CAAFlog case page). But it did so while recommending that CAAF revisit the reasoning of Carter and reject it in favor of Hoffman (that, if applied to Perkins’ case, would lead to a different result).
Soon afterward, the Judge Advocate General of the Navy certified Perkins to CAAF for just that reason, and with a bluntly-worded issue:
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.
CAAF decided to affirm its older precedent (Carter) and reject a plain reading of the rule (Hoffman), with Judge Maggs writing for a four-judge majority that “Carter contains a thorough consideration of a complicated issue . . . Hoffmann does not. In addition, Carter is a longstanding precedent, while Hoffmann is not.” 78 M.J. at 389.
Even Judge Ohlson – who dissented from the result because he concluded that it was so unreasonable for the commander to authorize the search that the good faith exception could not apply – agreed that “the principal of stare decisis . . . prevails in this matter, and consistent with our holding in United States v. Carter, 54 M.J. 414 (C.A.A.F. 2001), 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.” 78 M.J. at 390 n.1.
That decision is the #8 Military Justice Story of 2019.