In applying the military good faith exception under M.R.E. 311(c)(3), the court finds the NMCCA properly applied the exception which, under rule, blends into probable cause. There clearly was a substantial basis for finding probable cause, and good faith was evident, particularly because the investigator asked three military lawyers about whether there was probable cause, and they all concurred. Defendant’s “rubberstamp” argument wasn’t raised below, and it’s waived. United States v. Perkins, 2019 CAAF LEXIS 290 (C.A.A.F. Apr. 26, 2019):
A. M.R.E. 311(c)(3)(B)
Under M.R.E. 311(c)(3)(B), as noted above, the second requirement for the good faith exception is that “the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause.” In Carter, we recognized a difficulty in construing the language of this provision. 10 54 M.J. at 421-22. The trouble is that under United States Supreme Court precedent, when a defendant seeks to exclude evidence on grounds that probable cause does not exist, “the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for … [concluding]’ that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (alterations in original) (citation omitted). This test for reviewing whether there was probable cause is nearly identical in language to the test stated in M.R.E. 311(c)(3)(B) for the second requirement of the good faith exception. Accordingly, if M.R.E. 311(c)(3)(B) were read literally, in any situation in which a court concluded that probable cause did not exist, the court would also have to conclude that the requirement of M.R.E. 311(c)(3)(B) was not met. Under such an interpretation, as we explained in Carter, “the good-faith exception would not be an exception at all, and the language would serve no purpose.” 54 M.J. at 421.
In Carter, to prevent M.R.E. 311(c)(3)(B) from becoming a nullity, we looked to the purpose of the provision. Id. at 421-22. We decided that the President in promulgating the provision was seeking to codify the good faith exception as stated in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), and Massachusetts v. Sheppard 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). 54 M.J. at 420. Those cases indicated that the evidence could be admitted if the magistrate authorizing the search had a substantial basis, in “the eyes of a reasonable law enforcement official executing the search authorization,” for concluding that probable cause existed. Id. at 422. Accordingly, we held that M.R.E. 311(c)(3)(B) 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.” Id.
In this case, we agree with the NMCCA that M.R.E. 311(c)(3)(B) is satisfied under the test in Carter. The NMCCA properly identified factors indicating that Special Agent Jurj had an objectively reasonable belief that Colonel Martinez had a substantial basis for determining the existence of probable cause. Most significantly, Special Agent Jurj received and apparently relied on the advice of appropriate government lawyers: the local trial counsel, the regional trial counsel, and the staff judge advocate. When Colonel Martinez issued the authorization, Special Agent Jurj could reasonably have concluded that Colonel Martinez was confirming what these three lawyers had already told her.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)