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.