AF: Despite search authorization not permitting this search and GFE not applying, exclusionary rule should not apply; no deterrence

The search authorization for this service member’s cell phone was overbroad and failed to include text messages which were at issue. This failed Leon’s good faith exception: “We disagree, and find the fourth Leon exception clearly applies in this case—that the search authorization was facially deficient in not limiting the scope of the search such that investigators cannot reasonably have presumed it to be valid. The scope of the search authorization on its face was ‘mobile device with biometric access,’ with no indication of what to look for inside the device.” United States v. Lattin, 2022 CCA LEXIS 226 (A.F.Ct.Crim.App. Apr. 20, 2022):

In this case, the military judge at length considered deterrence and the cost to the justice system of excluding the evidence. He stated “[e]xclusion of this evidence under these facts will not deter future actions by military law enforcement personnel.” He determined SA LB’s conduct was neither “deliberate enough to yield meaningful deterrence [or] culpable enough to be worth the price paid by the justice system.”

Similarly, we find SA LB’s conduct does not warrant exclusion of evidence in this case to deter future unlawful searches; that benefit does not outweigh the costs to the justice system. See Herring, 555 U.S. at 144 n.4 (“[W]e do not suggest that the exclusion of this evidence could have no deterrent effect … and here exclusion is not worth the cost.”). In this regard, the military judge made three important findings. First, he found that “SA [LB] acted reasonably – especially considering the nature of digital evidence and the realties [sic] faced when attempting to search and analyze the same without knowing potentially involved parties’ phone numbers.” Second, and related, the military judge found “it is clear from the evidence that SA [LB] did not” violate Appellant’s rights under the Fourth Amendment “deliberately, recklessly, or with gross negligence.” To the extent these conclusions are findings of fact in a mixed question of fact and law, we determine they are not clearly erroneous. Third, the military judge found that “any wrong done to the accused’s rights was by accident, [and] not design,” and that it had not been shown that this case “involve[d] any recurring or systemic negligence on the part of law enforcement.”

These findings are supported by the evidence and not clearly erroneous. We agree with the military judge that SA LB’s conduct was not deliberate, reckless, or grossly negligent, or even indifferent or wanton. She thought she was doing what the law allowed. She coordinated with the legal office before and while requesting search authorization. She limited her search to text messages. She focused her search on finding evidence related to AW’s claim of sexual assault, including what Appellant may have told others about it. She was careful to avoid reading what she believed were privileged communications.