On Tuesday, September 29th, the CAAF heard arguments in United States v. White. The case involved the sufficiency of a search authorization. During the court-martial, the military judge found that no reasonably well-trained officer would rely on the search authorization, and therefore it was insufficient. However, the NMCCA granted the Government’s appeal and vacated the military judge’s ruling.
CAAF reviews Whiteon the following issue: 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?
Capt. Mary Finnen, USMC, argued for Appellant and Lt. Joshua Fiveson, JAGC, USN argued for the Government.
White's oral arguments here.
First, Appellant argued that Garhart’s understanding of the “probable cause” standard was in fact “reasonable suspicion.” To support this position, Appellant mentioned that the Government’s only case in defense of Garhart’s actions discussed reasonable suspicion. Further, it was clear that Garhart failed to do a thorough investigation and, as a result, the affidavit did not contain enough information for probable cause.
Second, Appellant emphasized that Garhart did not find probable cause. Specifically, Appellant discussed the following facts. First, The difference between alleged child pornography distributors “Villanueva and Noreiga.” The Government claimed that these were two different people; one man collected the money and the other distributed the material. However, Appellant argued that these names could be aliases for the same person. Since Garhart failed to do a thorough investigation, he never found out for certain. Second, the only “nexus” between the Appellant and the child pornography is one ten-dollar transaction that was sent to the Philippines. However, it was not clear whether that money was collected; if materials were exchanged; or if that money went to a specific person. And even if the money was sent to Villanueva, the Government had not established that he only operates illegal businesses; the money could have been for something legal. Third, that the government’s claim that a Filipino city is generally associated with child pornography is not “probable cause” that the Appellant bought child pornography from there. In Appellant’s words, the Government relies on a “stereotype” that the transaction must have been for child pornography because this particular city is known for it. In sum, Garhart did not have enough personal knowledge for the affidavit.
Third, Appellant argued that no reasonably trained officer would have put this affidavit in front of a commanding officer for a search authorization. In support of this point, Appellant cited Garhart’s lack of knowledge and the Government not establishing that Garhart acted in good faith. Appellant also compared his case to Perkins, where a good faith exception was applied because that special agent took steps to try to establish probable cause. But here, Garhart did not. Therefore, the military judge did not abuse his discretion in finding that the search authorization was insufficient.
2. Government’s Argument
The Government argued that the military judge failed to analyze the good faith exception to the search authorization. (1) The military judge’s conclusion relied on a degree of scrutiny inconsistent with the fourth amendment; and (2) the military judge conflated the nexus required for the good faith exception with the one required for probable cause.
First, the Government claimed that the military judge applied a “hyper technical” scrutiny that was inappropriate for affidavits. For the following reasons, the authorization was supported by probable cause: (1) It does not matter if Villaneuva or Noriega were actually two different people because both were known in the community as child pornography distributors; (2) Appellant sent over 200 transactions to the Philippines and the ten-dollars was for Noriega; and (3) over half of the transactions were sent to a Filipino city known for child sex crimes. Throughout the argument, the Government emphasized that “probable cause does not require certainty” and that CAAF’s precedent supports the Government’s position. The Government cited CAAF’s decision in Clayton, where the authorization was valid because the Appellant sent money to a known child pornography distributor, and Blackburn where deficiencies in the special agent’s reasoning were not dispositive in concluding the authorization was insufficient.
Second, the Government emphasized the good faith exception. The Government argued that the Carter line of cases clearly provides that an agent can reasonably believe in a substantial basis to support the affidavit, even if there is in fact no substantial basis. As long as the agent had an objectively reasonable belief, then the authorization is valid. Here, there is clearly probable cause because Garhart, when considering the fact and circumstances, could reasonably believe there was a substantial basis. At the end of its argument, the Government also mentioned that Appellant’s trial counsel made certain concessions and waivers, specifically that the Villaneuva and Noreiga distinction was irrelevant.
On rebuttal, Appellant largely echoed the same arguments. She emphasized that (1) there clearly were not enough facts to support the affidavit and (2) that Garhart might have had reasonable suspicion, but not probable cause.