Disclaimer: The author of this post helped in the preparation to the Appellant's filings at CAAF.
In United States v. White, the government appealed a military judge’s decision to suppress evidence seized pursuant to a command authorized search and seizure. The military judge found there was insufficient nexus between the crimes alleged and the place to be searched. The military judge refused to apply the good-faith exception because the affidavit was so lacking in evidence there could not have been a reasonable belief that there was probable cause.
The N-MCCA reversed, finding no probable cause, but applying the good-faith exception under Perkins. Specifically, the Court relied on the fact that the NCIS agents emailed the SJA the affidavit before applying for the CASS.
CAAF now grants review on the following question: did the lower court err 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?
The supplement and argument information is available here.
Inexplicably, the government did not file a brief in support of their position to the CAAF. Seemingly, the sole filing under consideration is the supplement to the grant of review filed by the defense and the government's brief to the N-MCCA.
The search in this case arises out of financial transactions AE1 White engaged in Manila, Philippines. One such transaction was an unsuccessful attempt to send money to a person who was an associate of a known child-pornographer in the same geographic area. This was the closest the government came to linking AE1 White to criminal activity.
The N-MCCA explained in more detail the information known to investigators at the time of seeking the warrant (Slip op. at 10-12):
After AE1 White was charged with possession of child pornography in violation of Article 134, he challenged the admission of the evidence seized pursuant to the CASS. The military judge agreed and suppressed the evidence. The judge found there was no probable cause and declined to apply the good faith exception because the CASS application was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." (Slip Op. at 6). The government appealed the decision pursuant to Article 62.
The N-MCCA found the military judge abused his discretion by failing to apply the good faith exception. The lower court agreed “that despite [the NCIS agent’s] efforts, the information he provided to the CO and his legal advisor falls short of establishing probable cause for issuance of the search authorization.” (Slip Op. at 12).
The N-MCCA then went on to consider the good-faith exception. The analysis focused on the second prong, whether the agent reasonably believed the CO had a substantial basis to believe there was probable cause. The Court did not analyze the third prong: whether the agent acted in good faith and not whether the CO acted as a rubber stamp.
The N-MCCA considered the left and right limits of the good-faith exception jurisprudence that has been set by CAAF in recent years. On the side of refusing to apply the good faith exception the court considers United States v. Perkins, 78 M.J. 381 (C.A.A.F. 2019). On the side of refusing to apply the good-faith exception, the Court considered United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016), United States v. Darnall 76 M.J. 326 (C.A.A.F. 2017), and United States v. Nieto, 76 M.J. 101 (C.A.A.F. 2017). The court favorably compared this case to Perkins, mainly because the NCIS agent sent the application to the SJA.
AE1 White disputes the court’s application of the good faith exception and whether the court properly analyzed the third prong of the exception since it did not address whether the CO was acting as a rubber stamp.
Factually, this case differs from Perkins in the involvement of the SJA. It appears the NCIS agent merely CC’ed the SJA on an e-mail. In Perkins, three lawyers were involved in the drafting and granting of the application. In this case, the agent “checked a procedural box” by CC’ing the SJA, but did not obtain any substantive advice. (Appellant’s Supp. at 21).
AE1 White also takes umbrage with the standard used in the lower court’s consideration of the NCIS Agents good faith. He cites Malley v. Briggs, 475 U.S. 335 (1986), that the proper standard is “whether a reasonably well-trained officer . . . [in the same position] would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” (Appellant Supp. at 22). Applying this standard, AE1 White argues a “mere propinquity” to criminal conduct is insufficient to satisfy the standard. He argues this case is more similar to Nieto rather than Perkins because in Nieto, the government knew Nieto had a laptop and people tend to move illicit photos from their phone to their computer.
Finally, AE1 White argues the N-MCCA erred by considering facts that were known to the agent, rather than the facts that were presented to the CO. Specifically, the affidavit did not include that “mostly under fifty dollars and that there were at least ten different recipients for the 2015-2016 transfers.” (Appellant’s Supp. At 33).
Oral Argument is scheduled for September 29th at 0930. As Judge Ryan has retired, the Court welcomes back Retired Judge Effron to hear this case with the rest of the Court.
Maj. Thomas Fricton
Military Justice Editor
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law