CAAFlog » October 2018 Term » United States v. Perkins

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.

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Audio of today’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Smith, No. 18-0211/AR (CAAFlog case page): Oral argument audio.

United States v. Perkins, No. 18-0365/MC (CAAFlog case page): Oral argument audio.

The audio is also available here, on our oral argument audio podcast (announced here).

Note: For the podcast, I processed the audio of these arguments with a dynamic normalizer filter to boost the volume of the quiet segments of the argument. Put differently, I increased the volume to a consistently-loud level.

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.

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The Fourth Amendment generally requires law enforcement obtain a warrant prior to seizing or searching property, and the warrant must be based on probable cause. Any evidence discovered in violation of those requirements may be excluded from trial. Such exclusion is not required by the Fourth Amendment, but rather is a “a judicially created remedy designed to safeguard Fourth Amendment rights generally through [a] deterrent effect.” United States v. Calandra, 414 U.S. 338, 348 (1974). That exclusionary rule is codified in the Military Rules of Evidence with the caveats that such exclusion must “result[] in appreciable deterrence,” and “the benefits of such deterrence [must] outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3).

But there are exceptions. One exception – also codified in the Military Rules of Evidence – involves a warrant (or military search authorization) that is somehow flawed. If a warrant is issued by competent authority with a substantial basis for finding probable cause, but is later determined to be invalid, the exclusionary rule does not apply if law enforcement “reasonably and with good faith” relied on the warrant to conduct the search or seizure. Mil. R. Evid. 311(c)(3). This good faith exception to the exclusionary rule recognizes that there is no deterrent effect, and so no justification for the practical cost of excluding evidence of wrongdoing, 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). In other words:

If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.

United States v. Leon, 468 U.S. 897, 919 (1984) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)).

The good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when:

(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, doesn’t seem to involve the officer actually conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if a warrant 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.

It’s a rule that swallows the exception, because an officer might rely on a warrant to conduct a search, and that reliance might be objectively reasonable, but the exception won’t apply if later analysis reveals that there was no basis for finding probable cause to issue the warrant. CAAF addressed this issue in United States v. Carter, and observed that the substantial basis requirement in Mil. R. Evid. 311(c)(3)(B) would – if applied as written – “effectively abolish the good faith exception in military practice.” 54 M.J. 414, 421 (C.A.A.F. 2001). CAAF then decided to interpret the requirement narrowly:

“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.

Carter, 54 M.J. at 422. Put differently, if the officer exercising the warrant objectively believes that there was a substantial basis for finding probable cause to issue the warrant, then the officer acts in good faith and the exception may apply. If, however, the officer knows or should know that there wasn’t a substantial basis to find probable cause, but nevertheless exercises the warrant, then the officer is not acting in good faith and the exception won’t save the evidence from exclusion.

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). Hoffmann was accused of committing indecent liberties with children, and a military commander authorized a search of Hoffman’s electronic devices for child pornography based on “an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” 75 M.J. at 123. CAAF rejected that intuitive link as a basis for probable cause and invalidated the authorization (and reversed Hoffmann’s convictions). But CAAF also rejected application of the good faith exception, concluding that:

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.

75 M.J. at 128. That conclusion is contrary to the holding from Carter that focused the analysis on what the law enforcement officer knew or should have known about the basis for finding probable cause (and not on whether there actually was a substantial basis for finding probable cause).

CAAF acknowledged its inconsistency the following year, in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), where it summarily concluded that the Army Government Appellate Division failed to establish that the good faith exception applied while observing (in a footnote) that:

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 because we conclude that under either understanding of the good-faith doctrine the Government has not met its burden of establishing this exception to the exclusionary rule in Appellant’s case.

United States v. Nieto, 76 M.J. 101, 108 n.6 (C.A.A.F. 2017).

That day has come:

No. 18-0365/MC. U.S. v. Calvin E. Perkins, Jr. CCA 201700077. Notice is hereby 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 this date on the following issues:

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. HOFFMANN, 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.

The NMCCA issued a published decision in Perkins (available here) that concluded:

Carter’s approach to MIL. R. EVID. 311(c)(3) is inconsistent with the rule’s plain language, and Hoffmann’s plain-language approach is therefore inconsistent with Carter. . . .

We conclude that we are still bound by Carter. We are reluctant to assume that the CAAF has tacitly reversed its own precedent. Hoffmann made no mention of Carter and did not purport to change any precedents binding on this court. . . .

United States v. Perkins, 78 M.J. 550, 561, No. 201700077, slip op. at 13-14 (N.M. Ct. Crim. App. Jul. 12, 2018). The CCA then found that the good faith exception applies to the case and affirmed the findings and the sentence, but it observed that its “choice of authorities determines the outcome of this issue” and “under Hoffman, the evidence does not qualify for the exception.” Slip op. at 10-11. Furthermore, it “respectfully suggest[ed] that the CAAF resolve the tension between Carter and Hoffmann in favor of Hoffmann and the plain language of MIL. R. EVID. 311(c)(3).” Slip op. at 20 (emphasis added).

The JAG’s certification of this issue – that the Government Division won at the CCA – is unusual, but not unprecedented. The Navy JAG previously certified an issue at the request of the defense as recently as 2016. See Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page).