{"id":3404,"date":"2009-09-26T08:36:15","date_gmt":"2009-09-26T08:36:15","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-09-26T08:36:15","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3404","title":{"rendered":"AFCCA: Applying GFE, Mil. R. Evid. 311(b)(3)"},"content":{"rendered":"

In an IAC claim, defendant would lose on the merits of the search both because there was PC and because the GFE, Mil. R. Ev. 311(b)(3)<\/a>, applied. United States v. Orona, 2009 CCA LEXIS 345 (A.F. Ct. Crim. App. September 14, 2009):<\/p>\n

In the case sub judice, the military judge addressed the three prongs of Mil. R. Evid. 311(b)(3) and found that they were all met. We agree. Concerning the first prong, the military judge concluded that the warrant was issued by a competent authority. On this point, we note that the evidence highlights the magistrate was a competent authority to issue the search authorization. With regard to the second prong, the military judge concluded that there was no evidence that Special Agent MB provided false information to the magistrate or that Special Agent MB acted in bad faith by failing to advise the magistrate that the appellant’s background showed no pedophilia tendencies.<\/p>\n

We likewise note there is neither evidence that the information Special Agent MB provided in the affidavit was false much less deliberately false nor evidence that Special Agent MB exhibited a reckless disregard for the truth in providing information to the magistrate. Her failure to provide the information trial defense counsel highlighted in his motion simply does not evince a reckless disregard for the truth. Moreover, we have examined the affidavit and note that it is more than a “bare bones” recital of conclusions. The affidavit is replete with facts from which the magistrate could conclude, correctly or incorrectly, that the appellant had possessed and was still in possession of child pornography.<\/p>\n

Lastly, the military judge found, contrary to the appellant’s assertion, that there was no evidence the magistrate “rubber stamped” Special Agent MB’s request and, in so doing, abandoned his judicial role. Rather, the evidence shows the magistrate was neutral and detached and he conscientiously exercised his judicial role. In the final analysis, we agree with the military judge’s conclusion that the good faith exception is applicable. Accordingly, we find that the military judge did not err in admitting the evidence Special Agent MB seized from the appellant. The evidence was properly admissible because the magistrate had a substantial basis for determining that probable cause existed and, barring that, the evidence is properly admissible under the good faith exception.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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