CAAF Opinion Review: United States v. White

CAAF released their opinion in United States v. White, siding with the Appellant and reversing the NMCCA's application of the good faith exception in M.R.E 311(c)(3).

White opinion here.

            Appellant was charged with three specifications of possessing child pornography. Prior to trial, Appellant moved for an order in limine suppressing all evidence that was found in his home pursuant to a command authorization for search and seizure (CASS). The military judge granted the motion, holding that the evidence in question was inadmissible under Military Rule of Evidence (M.R.E.) 311(a) because the commander who issued the CASS did so without probable cause to believe that contraband or evidence of a crime would be found in the places to be searched. The military judge further concluded that the good faith exception in M.R.E. 311(c)(3) did not apply. On Appeal, the NMCCA agreed with the military judge that the CASS was issued without probable cause but concluded that the good faith exception in M.R.E. 311(c)(3) applied and that this exception prevented exclusion of the evidence. However, CAAF reversed the intermediate court and affirmed the military judge’s decision.
 
I.         Relevant Facts
            Appellant was the subject of an NCIS investigation relating to charges of child pornography. He was identified as a person of interest after he was linked to a suspected producer of child pornography named Christopher Villanueva. As such, his home and personal devices were searched. To justify the proposed CASS, Special Agent Garhart prepared a thirteen-page affidavit in which he identified Appellant with connections to Villanueva and thus a person of interest. Finding a lack of probable cause and sufficient facts to support the assertion of the “good faith” exception, the military judge suppressed the evidence. At issue here is whether the lower court erred in determining the good faith exception applied when the military judge found so little indicia of probable cause existed that no reasonably well-trained officer would rely on the search authorization?
 
II.        The Law
A. Probable Cause
 
            CAAF reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion. Therefore, a military judge abuses his discretion “when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.” Upon application of the relevant standards, the Court found that the military judge did not abuse his discretion in addressing the issue of probable cause: (1) the findings were not clearly erroneous; (2) the findings were not influenced by an erroneous view of the legal standard for determining whether probable cause exists; and (3) the decision that probable cause did not exist was not outside the range of choices reasonably arising from the facts found by the military judge and this legal standard.
 
B.        Good Faith Exception
 
            The Court concluded that the military judge also did not abuse his discretion in addressing the good faith exception in M.R.E. 311(c)(3). The Court explained that “[t]he Government provided no evidence, and the military judge made no finding about any advice that Lieutenant Commander Giddens may have provided to Captain Bushey.” 
            Disagreeing with the NMCCA decision, the Court found that “the military judge reasonably decided that the information that Special Agent Garhart provided to Captain Bushey was “so lacking in indicia of probable cause” that it was objectively unreasonable to believe—solely on the basis of this information—that probable cause existed.” Furthermore, while the reliance interests of United States v. Perkins is relevant, such is not implicated as “[t]he record here establishes only that Special Agent Garhart delivered a copy of the proposed CASS and his affidavit to the staff judge advocate.” Since he was unaware of the information that may have been provided to the staff judge advocate, it would be unreasonable to concluded one relied upon information.
 

Farris Francis

Research Fellow