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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)