CAAF: GFE doesn’t apply to SW wholly without PC

The service member was charged with child pornography offenses. “Appellant moved for an order in limine suppressing all evidence that the Government had found in Appellant’s home pursuant to a command authorization for search and seizure (CASS). The military judge granted the motion, holding that the evidence in question was inadmissible under Military Rule of Evidence (M.R.E.) 311(a) because the commander who issued the CASS did so without probable cause to believe that contraband or evidence of a crime would be found in the places to be searched. The military judge further concluded that the good faith exception in M.R.E. 311(c)(3) did not apply.” The Navy-Marine Court of Criminal Appeals reversed. The Court of Appeals of the Armed Forces reversed. The CASS was wholly lacking in probable cause. Review by a JAG officer and others in NCIS was commendable and “conscientious” but didn’t save this search. United States v. White, 2020 CAAF LEXIS 618 (Nov. 9, 2020):

We disagree with the NMCCA’s analysis and conclusion. In our view, the military judge reasonably decided that the information that Special Agent Garhart provided to Captain Bushey was “so lacking in indicia of probable cause” that it was objectively unreasonable to believe—solely on the basis of this information—that probable cause existed. As the military judge explained, the affidavit left a number of items unclear, such as whether Appellant solicited or received child pornography, whether he possessed electronic devices on which he could store it, and whether those devices might be found in his home. Accordingly, the requirements of M.R.E. 311(c)(3)(B) were not met.

The NMCCA was correct in recognizing that we held in Perkins that reasonable reliance on the advice of counsel, depending on the circumstances, may make a belief in the existence of probable cause reasonable even if the advice of counsel ultimately turns out to be incorrect. Perkins, 78 M.J. at 388. But the NMCCA erred in relying on Perkins in this case because the facts are distinguishable. The record here establishes only that Special Agent Garhart delivered a copy of the proposed CASS and his affidavit to the staff judge advocate. Special Agent Garhart did not know what advice the staff judge advocate may have provided to Captain Bushey and could not recall whether the staff judge advocate participated in the briefing. Cf. Blackburn, 80 M.J. at 212 (weighing in favor of good faith that “legal counsel was on the call” when the agent briefed the magistrate). He therefore could not have reasonably relied on this advice.

We recognize that Special Agent Garhart attempted to comply with legal requirements. Most significantly, he showed the proposed CASS and affidavit to another agent and sent it to the staff judge advocate for review. He met with Captain Bushey to answer questions that Captain Bushey might have had. These efforts indicate honesty and conscientiousness. But the good faith exception requires more; as explained above, the exception requires an objectively reasonable belief that the commander had a substantial basis for determining the existence of probable cause. Without additional information about the advice that Special Agent Garhart received and the information that he conveyed to Captain Bushey, the military judge could reasonably conclude that the requirements of M.R.E. 311(c)(3)(B) were not met. For these reasons, we see no abuse of discretion by the military judge in suppressing the evidence from the search based on the facts and the applicable legal standards.