Defendant was subjected to a command authorized search under Mil.R.Evid. 315(d). He argues that the definition of who is in control to authorize the search isn’t clear. Well, it isn’t, but that doesn’t mean that multiple people might not fit the definition. In any event, the good faith exception applies. United States v. Seerden, 2019 U.S. App. LEXIS 4891 (4th Cir. Feb. 20, 2019):
Appellant argues that, because the CASS was not authorized by the commanding officer with “control over the place where the property or person to be searched [was] situated,” it was facially deficient to the point where “no reasonable person could have concluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18. That argument lacks both legal and logical support.
First, we have applied the good faith exception to warrants authorized by magistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685, 691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Id. (quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a warrant issued by the wrong magistrate judge would not appreciably deter police misconduct. Id. There is no reason to conclude that a case of the wrong commanding officer should be treated any differently.
Second, we cannot say that no reasonable officer could review a CASS authorized by the subject of the search’s commanding officer — as opposed to the commanding officer of the subject’s current location — and believe it to be valid. Military Rule of Evidence 315(d) is no bastion of clarity: it places the power to authorize searches on the officer “who has control over the place where the property or person to be searched is situated.” One could reasonably conclude that a military service member’s commanding officer is the officer who has control over the place where he or she “is situated.” Indeed, in this case, several officers reached that conclusion. NCIS consulted Appellant’s commanding officer in San Diego and the commanding officer of the Little Creek base. NCIS also consulted JAG attorneys at both bases. Only after taking these measures did NCIS reach the technically incorrect conclusion that Appellant’s commander in San Diego should authorize the search of Appellant’s phone, while the Little Creek commanding officer should authorize the search of his hotel room. This court is not prepared to call that conclusion, and each of those officers, unreasonable.