N.-M.: Forum shopping rejected because USMJ also had jurisdiction over search warrant

NCIS presented a search authorization that a military judge later determined was likely lacking in the showing of probable cause. To remedy that, NCIS did a new affidavit for warrant and presented it to a USMJ also with potential jurisdiction over the offense. This suggested forum shopping, but the USMJ did have jurisdiction, so the exclusionary rule would not be applied. United States v. Kunishige, 2022 CCA LEXIS 494 (N.-M. Ct. Crim. App. Aug. 23, 2022) (unpublished):

While the chain of events may initially give one pause over concerns of forum shopping, we are confident this was not the case here. First, the record establishes that the District Court had jurisdiction over both the offense and the place where the object of the search warrant was located. Second, the supporting affidavit clearly explained why NCIS was seeking authority from the District Court and not a military magistrate. As found by the military judge, NCIS went to great lengths to ensure nothing related to the earlier searches or any evidence collected after 19 January 2017 tainted the new warrant. The decision to seek a warrant from the District Court reflected the agents’ belief in the fact it was unlikely that any military judge at Camp Pendleton would be free of knowledge of the case—particularly regarding the results of the February 2020 search.

Rather than view this as an attempted evasion of the exclusionary rule’s effects, we see this as validation of the rule. The NCIS agents learned and applied the “harsh lesson” the military judge intended to deliver by excluding the evidence derived from the February 2020 search. Being told their previous probable cause affidavit was “insufficient to establish PC,” the agents set about correcting their failure. In doing so, they provided a much more robust, 17-page affidavit including all relevant evidence known as of the date of the original application for authorization to search Appellant’s MacBook laptop. The military judge concluded that the last affidavit was both sufficient to establish probable cause and untainted by any activity after 19 January 2017. We agree.

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