NMCCA: Despite lack of PC for search authorization, GFE applies because everybody thought there was PC

Defendant service member had sex with another service member, allegedly taking pictures and videos of her. Then he allegedly tried to extort her over the pictures, which she reported. A search authorization was issued for defendant’s on base housing to look for the pictures as a part of the extortion scheme. The court concludes first that there was no probable cause for the search authorization [something many would disagree with], but then finds that the good faith exception makes it admissible. Everybody involved thought there was probable cause [except the appeals court], so the searching officer was acting with good faith. The rest of the Leon factors in M.R.E. 311(c)(3) favor no exclusion. United States v. Perkins, 2018 CCA LEXIS 336 (N.-M. Ct. Crim. App. July 12, 2018):

Special Agent JJ’s communication with and apparent reliance on the advice of the appropriate attorneys is an important factor in our resolution of this prong. The CO’s probable cause determination would have seemed to be a ratification of what trial counsel and the staff judge advocate had already told Special Agent JJ: probable cause existed to search the appellant’s home.

The fact that Special Agent JJ knew that the CO, trial counsel, and the staff judge advocate all came to the same conclusion is a compelling reason to find that she reasonably believed that the CO had a substantial basis for that conclusion.

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