N.-M. Ct.Crim.App.: Trial judge’s findings on deterrence for exclusion lacking, so remanded

Defendant was charged in Washington state court with child pornography after he was arrested in a prostitution sting and police obtained access to his cell phone by getting his password. The state court suppressed the search of the cell phone, and the state did not appeal, dropping the charge. Defendant was then charged under the UCMJ before a military court. He moved to suppress again, and the military judge also suppressed. The findings of deterrence for exclusion required in M.R.E. 311(a)(3) aren’t supported, so remanded for more findings. United States v. Mottino, 2017 CCA LEXIS 495 (N.-M. Ct. Crim. App. July 27, 2017) (unpublished):

The rule regarding evidence obtained from unlawful searches and seizures states:

(a) General rule. Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if:

(1) the accused makes a timely motion to suppress or an objection to the evidence under this rule;

(2) the accused had a reasonable expectation of privacy in the person, place, or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the Armed Forces; and

(3) exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

Mil. R. Evid. 311(a) (second emphasis added).

Although the military judge concluded that “[s]uppression will serve the exclusionary rule’s goal of deterrence,” her ruling is devoid of any analysis regarding prong three. She did not quantify how appreciable that deterrence is, nor did she balance the benefits of such deterrence against the costs to the justice system, as required by Mil. R. Evid. 311(a)(3). See United States v. Wicks, 73 M.J. 93, 104 (C.A.A.F. 2014) (military judge’s ruling clearly identified three factors favoring exclusion). The military judge abused her discretion by concluding that exclusion was appropriate without conducting the required balancing test, and we decline the parties’ invitation to conduct that analysis on the military judge’s behalf.