E.D.Va.: While def’s Navy commander in CA couldn’t authorize military search on a base in VA, GFE applies

Defendant was in the Navy, and, due to a potential rape allegation against him, a pretext text message was sent to him by NCIS on behalf of the alleged victim. Defendant was stationed in San Diego, but he was in training on a base in the Eastern District of Virginia. A Command Authorization for Search and Seizure (CASS) of his cell phone was sought and obtained from his superiors in San Diego for the search in Virginia. Child porn was found on the phone. Court finds that under Mil. R. Evid. 315, that commander lacked authority to issue the CASS. Still, the searches were with probable cause and the good faith exception will apply. The court relies on the Playpen cases of the good faith exception still applying. United States v. Seerden, 2017 U.S. Dist. LEXIS 130046 (E.D. Va. Aug. 14, 2017):

Moreover, as a matter of public policy, the exclusionary rule was not created to deter the conduct that occurred in this case, where NCIS agents sought advice from a judge advocate, and subsequently relied upon that advice that was ultimately wrong. In the present case, NCIS agents attempted to follow the law, and received authorization from a commanding officer, where, in a general sense, it would not be unreasonable for a person in the military to believe that person had the authority to authorize the search.

As the Supreme Court held in Herring, “The exclusionary rule is not an individual right and applies only where it ‘results in appreciable deterrence.’” 555 U.S. at 141. There must be evidence that the unlawful conduct was “sufficiently deliberate” so that exclusion can meaningfully and objectively deter it. Id. at 144-47. Here, there is no evidence that the NCIS agents deliberately or recklessly conducted an unlawful search of Defendant’s cellular telephone, or were grossly negligent in their application of the military rules of evidence to obtain authorization for either search. Likewise, there is no evidence, or argument, that NCIS’s conduct was the result of some recurring or systematic negligence. For these reasons, the Court finds that the good faith exception applies, and that the motion to suppress is DENIED.

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