In a case certified by the Judge Advocate General of the Air Force, CAAF returned to the messy world of waiver and the good-faith exception to suppression under the Fourth Amendment and the Military Rules of Evidence. Reversing the Air Force court, CAAF considered but rejected the appellee’s claim that the search authorization in his case was founded on an agent’s reckless omissions and misstatements to the magistrate.
The facts of this case are, well, creepy. Blackburn made several surreptitious videos of his twelve-year-old stepdaughter in the bathroom and once aimed a camcorder at her over the shower curtain rod while she was showering. He also asked her for nude pictures.
AFOSI sought and obtained an authorization to search the home for a plethora of digital media: cameras, hard drives, SD cards, computers—the works. Although there was no evidence that Blackburn had induced his stepdaughter to perform any sexual act for the camera, AFOSI predicated the authorization request on suspicion that he was creating child pornography. At his trial for indecent recording, Blackburn moved to suppress videos of his stepdaughter in the bathroom that agents found on his computer.
Blackburn relies on Nieto
Blackburn’s approach relied on CAAF’s recent case of United States v. Nieto, 76 M.J. 101 (C.A.A.F. 2017). Nieto also involved an accused who surreptitiously recorded soldiers using the toilet, but with a cell phone instead of a camcorder. Investigators seized Nieto’s cell phone but also his laptop, which someone had seen on his bunk. CAAF found that the search of Nieto’s laptop was not supported by probable cause, because there was no reason to think that Nieto had downloaded any videos to it. Not only was the search unsupported by probable cause, the good-faith exception was unavailable to the government, for reasons the court did not make clear in that opinion.
At trial, Blackburn successfully argued that, as in Nieto, the lack of any nexus between the computer and the camera meant that the search of the computer was unsupported by probable cause. Blackburn further argued that the government did not meet the requirements of the good faith exception found in Mil. R. Evid. 311. In particular, he argued that the agent’s reference to child pornography—made without absent any evidence of a required sexual act—amounted to a reckless mischaracterization of the evidence. But the military judge found that the search was saved by the good faith exception.
At the Air Force Court
AFCCA agreed with the military judge that the search of Blackburn’s computer was not supported by probable cause. The Air Force court also found that the good faith exception did not apply because the agent’s characterization of this case as a child pornography case was so reckless as to foreclose the good faith exception.
The CAAF case
At CAAF, the government argued that Blackburn’s defense counsel had never argued that the agent had made any deliberately false or reckless statements in the affidavit supporting the authorization, and that AFCCA erred by even considering this argument on appeal. CAAF found, however, that the question of the agent’s recklessness had been sufficiently litigated at trial to allow the issue to be heard.
Having won on the waiver battle, the appellee lost the good faith exception war. Judge Ryan, writing for the court, found that the agent had been wrong, but not reckless, by characterizing the case as one of child pornography. As for the lack of any nexus between Blackburn’s computer and the camcorder used in the offense, CAAF distinguished—unconvincingly, to my mind—Blackburn’s computer from Nieto’s laptop. CAAF found that even if the search of the computer were not supported by probable cause, the agent’s belief that the magistrate had a substantial basis on which to find probable cause was reasonable.
Judge Maggs concurred but would have found that the appellee failed to preserve his complaint about the agent’s mischaracterization of his offense at trial.
A few thoughts
Relying on Nieto was the appellee’s best play here. I’ve never quite understood Nieto, though, and I can’t reconcile it with CAAF’s other recent good faith cases. The agent in Nieto obtained an authorization to search Nieto’s cell phone and his laptop on the theory that Nieto was likely to have downloaded pictures from his phone to the laptop. CAAF wasn’t having it. The absence of any nexus between the laptop and the cell phone meant that the agent lacked probable cause. But not only was there no probable cause, CAAF hand-waved the government’s good faith argument, apparently finding it not even close enough to rate analysis.
I think the good faith case in Nieto was stronger than the one here, and stronger than the one in United States v. Perkins, 78 M.J. 381 (C.A.A.F. 2019), in which CAAF also applied the good faith exception. Nieto seems like a bit of an outlier in this area.