AFCCA: “The constable blundered” so the court bails him out; 200,000 CP images come into evidence despite lack of search authorization

The Air Force Court of Criminal Appeals finds inevitable discovery by essentially doing the investigator’s work for him by saying, essentially, “if he asked for a proper search authorization, he would have got it.” Nothing, mind you, supports that it would have been made–it’s enough that it could have been made. [After all, we can’t have 200,000 child porn photos be thrown out because the government didn’t search right. This is likely unpublished because it’s not worthy.] United States v. Carpenter, 2016 CCA LEXIS 15 (A.F.C.C.A. Jan. 14, 2016):

Having found the military judge’s ruling that the search authorization included the authority to search the electronics seized from Appellant’s room, we do not agree with the military judge’s conclusion that the search did not exceed the scope of the warrant. SA H sought search authorization for evidence of solicitation of a minor, specifically addressing the use of Craigslist.com and the exchange of text and email messages. SA H testified that he believed he could search the computer for any evidence of texts and emails between Appellant and the undercover officer. SA H had no knowledge of the exchange of photos, and therefore did not discuss that aspect of the communications between Appellant and the undercover officer with the magistrate. Detective M briefly looked, but did not find, any evidence of emails or texts or the Craigslist.com advertisement. He almost immediately shifted his attention to looking for photos. The magistrate was aware of the electronic communications between Appellant and the undercover officer stemming from an electronic solicitation by Appellant for sex. While it is reasonable to infer the search authorization allowed for efforts to seek evidence of those communications, it is not reasonable to infer that the magistrate authorized the search for evidence that he knew nothing about. Having found the military judge’s ruling that the search did not exceed the scope of the authorization to be an abuse of discretion, we consider whether the evidence found on the laptop would have been inevitably discovered.

. . .

Here, a search request for electronic photos, emails, texts, and evidence of accessing the Craigslist.com website from on or about 8 April until on or about 13 April would have met the Osorio requirement. A review of the downloads folder on Appellant’s computer would have fallen within the scope of the authorized search. Such a search would have discovered the anime images, as well as some of the other images of suspected child pornography. The discovery of those images, combined with a law enforcement official’s knowledge and experience in child pornography cases, would have provided probable cause to seek additional search authorization for child pornography. See United States v. Hoffmann, 74 M.J. 542, 547 (N.M.C.C.A. 2014) (finding proper application of the inevitable discovery doctrine, allowing the search of Appellant’s laptop, where the investigating agent knew Appellant had sexually propositioned young boys and possessed computers in his barracks room, as it was reasonable to conclude that “those who attempt to locate and then engage in sexual activity with children frequently first conduct some type of computer-based research”). As such, the evidence from Appellant’s laptop would have been admissible.

While we are troubled by the careless actions of law enforcement in this case, we recognize that reliance on the notion that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule. As the Supreme Court has stated, “[t]he deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” Herring v. United States, 555 U.S. 135, 147, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (citing United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). Thus, “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.'” Id. at 147-148 (quoting Leon, 468 U.S. at 907 n. 6). In such cases, criminals should not “go free because the constable has blundered.” Id. at 148 (quoting People v. Defore, 242 N.Y. 13, 150 N. E. 585, 587 (1926) (opinion of the Court by Cardozo, J.)).