On Nov 9, the CAAF reversed the NMCCA in United States v. White. Judge Maggs delivered the unanimous opinion of the Court.
White opinion here.
NCIS Special Agent Garhart prepared a CASS to search AE1 White’s electronic media. SA Garhart based the application on a DHS investigation that showed an attempted, but unsuccessful $10 payment from AE1 White to an unknown individual using the name “Jusan Noriega.” The payment was sent to Manila in The Philippines. A DHS undercover agent was conducting a sting with Christopher Villanueva and he asked the agent to send a payment to “Jusan Noriega” in exchange for a live sex show with a minor. None of these predicate facts were significantly disputed.
SA Garhart sent the application to two judge advocates. SA Garhart did not receive legal advice prior to signing and executing the authorization. SA Garhart believed the commander consulted with their SJA, but he couldn’t remember if he was present. Neither the commander, or the SJA were called to testify at the suppression hearing. The trial judge suppressed the evidence and, in his ruling, included a laundry list of questions the government had left unanswered including:
• At the time, was it technologically possible to record and preserve live-streamed presentations in a digital format?
• If someone watched a live-streamed presentation, was it possible to find forensic digital evidence of that conduct on a person’s computer afterwards, even years later?
• Was it a common practice for sex traffickers in the Philippines, or elsewhere, to create digital images or videos to share with others?
• Did Villanueva ever record his shows?
• Did he ever deliver, electronically or through the mail, those previously recorded shows to other clients in a manner that might be saved and electronically stored by those clients?
• Did Villanueva or Noriega create, or communicate with, online communities of persons who collected child pornography?
• Was any person who communicated with or wired money to Villanueva or Noriega ever sent digital images or videos of children?
• Were digital images or videos of Villanueva’s victims ever discovered as part of other cases or in the possession of other suspects? United States v. White, No. 20-0231/NA Opinion of the Court 6
• As to Taguig City’s reputation regarding sex trafficking, did this reputation extend to the production and distribution of child pornography?
• Was it usual for someone who sent money to persons in Taguig City to receive child pornography in return?
• If so, what was the nature of this exchange, in that, did it include the electronic exchange of digital images or videos or access to websites whether involving contraband or not?
The N-MCCA overturned the judge’s ruling relying on United States v. Carter. The lower court found SA Garhart had a good faith belief that the CO had a sufficient quantum evidence to authorize the search. The lower court also relied on the fact that SA Garhart provided the information to the SJA for review.
The CAAF found the military judge did not abuse his discretion. The Court quotes Ybarra v. Illinois: “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In short, it was not outside of the Military Judge’s discretion to find there was not probable cause based on the work done by SA Garhart.
The court then addressed the good faith exception under M.R.E. 311(c)(3), which has been the subject of a number of CAAF cases lately including Carter 76 M.J. 293, 296 (C.A.A.F. 2017), Hoffmann 78 M.J. 381 (C.A.A.F. 2019), Perkins, 78 M.J. 381(C.A.A.F. 2019), and Blackburn. 80 M.J. 205 (C.A.A.F. 2019). These cases established the rule that M.R.E. 311(c)(3)(B) only requires the investigator have a good faith belief that the CO had substantial information to form a good faith belief that there was probable cause to issue the search. This is despite the text of M.R.E. 311 stating that the good faith exception requires three prongs, one of which is “the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause.”
In my mind, this rule reads like the Christopher Nolan classic Inception, where instead of planting an idea inside a dream, the Court is planting probable cause into the commander’s mind. Unfortunately for the government in this case, SA Garhart is no Leo DiCaprio and the command no Ken Watanabe.
The Court found the information in this case was so lacking, it was unreasonable for SA Garhart to believe that the CO had sufficient information to find probable cause. The Court also addresses the notion that reasonable reliance on the advice of an SJA provided cover for an otherwise unreasonable finding of probable cause. This idea comes from Perkinswherein the NCIS agent consulted closely with multiple judge advocates before getting a CASS signed. However, now the CAAF reins this idea in slightly, requiring reasonable reliance include actual consultation, not merely forwarding the affidavit. Ultimately, Judge Maggs writes SA Garhart’s actions “indicate honesty and conscientiousness. But the good faith exception requires more;…the exception requires an objectively reasonable belief that the commander had a substantial basis for determining the existence of probable cause.”
First, it is nice to see some limitations to the good faith exception. Fourth Amendment jurisprudence and the exclusionary rule should be a stick that improves the quality of investigations. The current rule provides such a low bar that investigators have little incentive to do the hard work of building a case. The facts of Whiteare fruits of this policy. SA Garhart appears to have dialed in the investigation but left huge questions unanswered. This can lead to problems at trial, regardless of the privacy and civil liberties concerns it causes. This was compounded with the trial attorney failing to put very much evidence in the record at the motions hearing, such as having the SJA that was consulted testify or having the CO testify. Prosecutors are reluctant to put the commander on the stand, but this approach allows SJAs to get away with shoddy work and may infringe on service member’s privacy rights. Hopefully, this case will help us get our act together when it comes to investigating.
Second, the good faith exception continues to be a hot item at CAAF. It would likely behoove trial defense counsel to fight these cases and trial counsel to adequately develop the record when litigating these issues. No one, particularly NCIS special agents, wants to see their name in a CAAF opinion.
MAJ Thomas Fricton
Military Justice Editor