S.D.Ga.: Oral military search authorizations do not violate 4A or Rule 41

Oral search warrant requests and authorizations under M.R.E. 315 do not violate the Fourth Amendment or Rule 41. Many cases so hold. The violation of the SOP manual for military magistrates wasn’t serious enough to justify suppression nor prevent the good faith exception from applying. United States v. Caudle, 2019 U.S. Dist. LEXIS 119139 (S.D. Ga. June 28, 2019), adopted, 2019 U.S. Dist. LEXIS 119106 (S.D. Ga. July 17, 2019):

2. The Military Magistrate Complied with Best Practices in a Handbook, and Any Deviation Would Not Warrant Suppression

Defendant argues Cpt. Burford deviated from best practices memorialized in a Standing Operating Procedures handbook instructing military magistrates to (1) issue a written search authorization prior to a search absent extraordinary circumstances; (2) inquire about the veracity of an informant and age of the information; (3) take notes of conversations concerning the request and authorization; (4) explicitly authorize nighttime searches; (5) limit the time period of the search; and (6) inquire about the investigating agent’s experience. (Doc. no. 58, pp. 1-4.) Suppression would be unnecessary even if Cpt. Burford deviated in all six ways alleged by Defendant. The handbook recognizes as much, explaining “[f]ailure to comply with any of the above administrative guidelines will not render a search or seizure unlawful ….” (Doc. no. 57-2, p. 10.) A handbook violation might warrant suppression if it rose to the level of violating the Fourth Amendment, but none of the violations alleged by Defendant rise to such a level. Nor is there support for a finding any handbook violation occurred.

First, the oral nature of the search authorization does not necessitate suppression because the agents complied with Rule 315, which, as explained in § II.G.1, supra, properly allows oral search authorizations in the military context. Nor does there appear to be a violation of the handbook. The handbook states, “[A]bsent extraordinary circumstances, a military magistrate should issue only written search authorizations based on written, sworn statements.” (Id. at 8.) The handbook does not define “extraordinary circumstances,” and one could reasonably determine the circumstances here were extraordinary. As SA McGee testified, both searches were efforts to obtain electronic evidence from a soldier with specialized training in cyber warfare, and SA McGee reasonably concluded this constituted an extraordinary circumstance requiring immediate action to reduce the risk of spoliation. That the informant was Defendant’s wife increased the risk Defendant would learn of the investigation before the searches could occur. Furthermore, the second search originated with Mrs. Caudle accusing Defendant of hacking into her personal online accounts, which one could also reasonably conclude is an extraordinary circumstance requiring immediate action.

Second, there is no evidence to suggest Cpt. Burford did not consider Mrs. Caudle’s veracity or the age of her information. The handbook instructs military magistrates to “[a]sk specific questions about the source of any information described by the person appearing before you to determine who told the person the information, how current the information is, how the person knows that information, whether the information was provided under oath, and how the person is related to the matter under investigation or persons being investigated ….” (Id. at 9.) SAs McGee and Erwin provided a wealth of information to Cpt. Burford concerning Mrs. Caudle’s allegations, and this information was sufficient to discern the strength, veracity, and age of her allegations. Furthermore, the handbook contains an entire paragraph of factors a military judge should consider when determining the strength of an informant’s allegations. When one compares the analysis recommended by the handbook with the information and materials provided to Cpt. Burford, it is clear he complied with both the spirit and substance of the handbook recommendations.

Third, concerning the criticism Cpt. Burford did not inquire about the experience of SAs McGee and Erwin, there is no evidence to suggest Cpt. Burford failed to make such an inquiry, and it is abundantly clear from the testimony of SAs McGee and Erwin they work frequently with Cpt. Burford such that there would be no need for this inquiry in the first instance. Fourth, the handbook states the military magistrate should “[t]ake notes during the entire process of receiving information.” (Id.) However, there is no evidence suggesting Cpt. Burford failed to take notes. Even if he failed to do so, the agents provided him with written documentation of their investigation.

Fifth, there is no violation of the requirement for express authorization of a nighttime search. (Id. at 10.) “The Fourth Amendment does not contain any time limitations on reasonable searches and seizures.” United States v. Williams, 871 F.3d 1197, 1202 (11th Cir. 2017) (citing U.S. Const. amend. IV; United States v. Gerber, 994 F.2d 1556, 1559 (11th Cir. 1993)). Although Rule 41 does not apply in this military context, as described in § II.G.1, supra, its restriction on nighttime searches provides context for determining the reasonableness of the execution of the March 13th search authorization.

Rule 41 requires warrants to be executed during the daytime hours of 6:00 a.m. to 10:00 p.m. unless expressly authorized by a judge for good cause. SA McGee’s search from 8:30 p.m. until 10:30 p.m. can hardly be considered a purely nighttime search for which explicit authorization is required, and suppression would be unwarranted even if it were. A Rule 41 violation requires suppression only where there is (1) prejudice because the search might not have occurred or been so abrasive if the rule had been followed, or (2) intentional and deliberate disregard of the rule. Williams, 871 F.3d at 1203 (citing Gerber, 994 F.2d at 1560). Defendant has not established prejudice from the timing of the search or intentional and deliberate disregard of the daytime requirement.

Sixth, concerning the criticism the search authorization contained no time limit, the handbook states a military magistrate “normally should not put any time limits on the search.” (Doc. no. 57-2, p. 12.) Here, the agents executed both initial searches on the same day of authorization. (Doc. nos. 41-4, 41-6.) While the handbook suggests initial seizure of electronic evidence should take place within ten days of issuance, “a more expansive time frame for off-site copying/review/electronic search would be consistent with federal practice ….” (Id.) A more expansive time frame is certainly justified for the complex task of searching digital media. Furthermore, Defendant cannot claim an adverse effect on his possessory interests in the seized devices, because he has not moved the Court for their return. Federal Rule of Criminal Procedure 41(g) states “[a] person aggrieved . . . by the deprivation of property may move for the property’s return.” See also United States v. Ilonzo, No. 1:12-CR-276-SCJ-GGB, 2015 U.S. Dist. LEXIS 136783, 2015 WL 5827598, at *20-21 (N.D. Ga. Oct. 6, 2015) (finding no adverse effect on legitimate interests in seized computers where defendant failed to seek return of evidence).

Finally, to the extent Defendant criticizes execution of the search authorizations as unreasonable, blanket suppression is not appropriate unless the agents’ conduct “exceeded any reasonable interpretation of the warrant’s provisions.” United States v. Khanani, 502 F.3d 1281, 1289 (11th Cir. 2007) (citation omitted). “Absent a flagrant disregard of the terms of the warrant, the seizure of items outside the scope of a warrant will not affect admissibility of items properly seized, or constitute reversible error on a direct appeal from conviction.” Id. (citations omitted).

There is no evidence of flagrant disregard of the terms of the search authorization or that agents seized items unrelated to the crimes at issue. Thus, even if Defendant were able to show execution of the search authorizations was unreasonable, it would not affect the admissibility of the relevant digital media the officers seized.

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