On May 20, 2016, the President signed Executive Order 13,730 (discussed here) that amended Mil. R. Evid. 311 to limit application of the exclusionary rule in the case of an unlawful search or seizure, requiring a balancing that weighs the deterrent effect of exclusion.

The prior (and longstanding) rule stated that “evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused” if the accused (1) makes a timely objection and (2) has an adequate privacy interest. Mil. R. Evid. 311(a) (2015). The new (current) rule adds a third requirement:

exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

Mil. R. Evid. 311(a)(3) (2016).

In United States v. Mottino, No. 201700153 (N-M. Ct. Crim. App. Jul. 27, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants a prosecution appeal and reverses a military judge’s ruling suppressing evidence because:

the military judge’s findings of fact are not clearly erroneous, but that her analysis and application of the law do not include the balancing test required under MIL. R. EVID. 311(a)(3).

Slip op. at 2.

The facts of the case involve a search of the accused’s cell phone. Local police had a warrant authorizing a search of certain contents of the phone, but they exceeded that scope. The accused was indicted in the civil courts, but the evidence was suppressed on the basis that the initial warrant lacked sufficient particularity and was issued without probable cause, and the civil charges were dropped.

The accused was also charged at a court-martial, where:

The defense promptly filed a suppression motion, which was granted by the military judge on 28 April 2017. The military judge’s written ruling echoed the rationale of the Kitsap County Superior Court and concluded that: (1) there was insufficient probable cause to search much of the phone; (2) the warrant lacked sufficient particularity; (3) the plain view, inevitable discovery, and good faith exceptions were inapplicable; and (4) “[s]uppression will serve the exclusionary rule’s goal of deterrence.”

Slip op. at 3.

The NMCCA finds the military judge’s mere reference to the exclusionary rule’s goal of deterrence to be inadequate:

Although the military judge concluded that “[s]uppression will serve the exclusionary rule’s goal of deterrence,” her ruling is devoid of any analysis regarding prong three. She did not quantify how appreciable that deterrence is, nor did she balance the benefits of such deterrence against the costs to the justice system, as required by MIL. R. EVID. 311(a)(3). See United States v. Wicks, 73 M.J. 93, 104 (C.A.A.F. 2014) (military judge’s ruling clearly identified three factors favoring exclusion). The military judge abused her discretion by concluding that exclusion was appropriate without conducting the required balancing test, and we decline the parties’ invitation to conduct that analysis on the military judge’s behalf.

Slip op. at 4.

The comments to my post discussing the Executive Order 13,730 included extensive discussion of this change and the reason for the exclusionary rule, including this comment in which I predicted that the rule requires a military judge to make findings of fact regarding things such as the existence of deterrence, whether it is appreciable, whether it will apply to future unlawful searches or seizures, the benefits of the deterrence, and the costs to the justice system. I also suggested that how the benefits and costs of any deterrence should be weighed is a question of law.

Since the Government seems hell-bent on prosecuting this accused, perhaps this case will lead to greater clarity for this Rule.

4 Responses to “The NMCCA reverses a suppression ruling because the military judge didn’t adequately balance the deterrent effect of exclusion against the cost to the justice system”

  1. Abe Froman says:

    Quantify how appreciable that deterrence is?  That seems to be a very squishy requirement that cannot really be addressed in a suppression motion…

  2. stewie says:

    Definitely going to lead to a lot of variability from case to case in what comes in and what stays out.

  3. Zachary D Spilman says:

    It’s worth recalling Brian Bouffard’s prediction:

    MJ:  Agent Jones, you appear to have violated the Accused’s rights, and I’m considering applying the exclusionary rule.  If I keep this evidence out because of your misconduct, will that deter you from similar misconduct in future investigations?

    WIT:  No.  I’m going to keep doing whatever the hell I want.

    MJ:  Understood.  Defense motion is denied.

  4. k fischer says:

    Quantify how appreciable that deterrence is?  That seems to be a very squishy requirement that cannot really be addressed in a suppression motion…
     

     
    I think that Justices and Brennan and Stevens did their best to attempt to quantify the deterrance in US v. James
     
     
    The cost to the truth-seeking process of evidentiary exclusion invariably is perceived more tangibly in discrete prosecutions than is the protection of privacy values through deterrence of future police misconduct. When defining the precise scope of the exclusionary rule, however, we must focus on systemic effects of proposed exceptions to ensure *320 that individual liberty from arbitrary or oppressive police conduct does not succumb to the inexorable pressure to introduce all incriminating evidence, no matter how obtained, in each and every criminal case. Our previous recognition of an impeachment exception limited to the testimony of defendants **656 reflects a careful weighing of the competing values. Because expanding the exception to encompass the testimony of all defense witnesses would not further the truth-seeking value with equal force but would appreciably undermine the deterrent effect of the exclusionary rule, we adhere to the line drawn in our previous cases.

    James v. Illinois, 493 U.S. 307, 319–20 (1990)
     
     

    Justice STEVENS, concurring.

    While I join the opinion of the Court, certain comments in the dissent prompt this postscript. The dissent answers the wrong question when it states that “[t]he interest in protecting the truth-seeking function of the criminal trial is every bit as strong in this case as in our earlier cases.” Post, at 658. This is self-evident. The State always has a strong interest in the truth-seeking function. The proper question, however, is whether the admission of the illegally obtained evidence in this case would sufficiently advance the truth-seeking function to overcome the loss to the deterrent value of the exclusionary rule. With respect to this issue, the dissent overestimates the benefit of the exclusionary rule even to the defendant bent on presenting perjured testimony and exaggerates the injury that exclusion of unlawfully obtained evidence causes to the truth-seeking function.

    James v. Illinois, 493 U.S. 307, 320 (1990)