N.-M.: In applying cost-benefits analysis of exclusionary rule, this was more than mere negligence and exclusion was necessary

In a military prosecution for adultery, the military judge found the search of defendant’s cell phone unreasonable and a violation of the Fourth Amendment but refused to suppress in its cost-benefits analysis. The court of appeals disagreed and found the searcher’s actions more than mere negligence, and suppression was justified. United States v. Lee, 2022 CCA LEXIS 211 (N.-M. Ct. Crim. App. Apr. 5, 2022):

While we agree with the military judge’s conclusion that SA Golf’s actions constituted an unreasonable search, which the Government does not dispute, we find that in balancing the benefits of deterring future unreasonable searches against the costs to the justice system, the military judge applied “the legal principles to the facts in a way that is clearly unreasonable.” The Government argues the military judge correctly admitted the evidence because SA Golf’s actions amounted to “simple negligence,” making “the deterrent effect of the exclusion minimal while the cost was high.” Although we recognize that SA Golf’s conduct may not have been as flagrant a violation of the Fourth Amendment as those found in the cases cited by the Government, the question is not whether the search could have been more unreasonable, but whether (1) exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and (2) the benefits of such deterrence outweigh the costs to the justice system.

In this case, contrary to the Government’s claims, SA Golf’s actions went beyond mere negligence. As the military judge himself found, “SA [Golf] … acknowledged that although he suspected that the accused had committed fraternization before clicking on and enlarging the thumbnail image of Capt Roberts in uniform, he admitted it was a separate (and ‘superfluous’) offense other than those which he was investigating or which was contemplated by the search authorization.” While the test for “deterrence and culpability is objective, not an inquiry into the subjective awareness” of law enforcement, we find that “a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” Here, SA Golf’s decision to investigate Appellant for an unrelated offense was an intentional violation of the limits that he knew were contained in the CASS. This is exactly the sort of law enforcement conduct that is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

Allowing Appellant to avoid an adultery conviction is clearly not too high a price to deter law enforcement agents from pursuing a particular line of investigation where, as here, they fully realize that if they continue they will go beyond the scope of their search authorization. Indeed, such deterrence in this case means simply requiring law enforcement agents to do what they already know they are supposed to be doing: obtain additional authorization to continue the search before proceeding past the limits of a CASS. If we were to allow the use of evidence seized in such knowing violation of the Fourth Amendment’s particularity requirement, not only would we be fostering the sort of “wide-ranging exploratory searches the Framers intended to prohibit,” but “the protection of the Fourth Amendment declaring [a person’s] right to be secure against such searches and seizures [would be] of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.” And it would essentially allow the balancing test to become an end-run around the limits of the plain view doctrine, which already, as our superior court has noted, “in a digital context poses a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.” Hence, while we find his thorough, written ruling to be cogent in every other respect, based on the facts of this particular case, we find the military judge clearly erred in finding that the cost of exclusion to the justice system outweighs the benefits of deterring future unlawful searches or seizures.