Court-Martial Trial Practice BlogYOUR MILITARY DEFENSE COUNSEL SHOULD CHALLENGE THE APPLICATION OF THE MILITARY RULE OF EVIDENCE 311.
THE RULE VIOLATES THE U.S. CONSTITUTION.
WE ARE CHALLENGING THAT AT THE U. S. SUPREME COURT NOW.
Articles Posted in Search and Seizure
Another bad day at CAAF for the Fourth Amendment.
Two recent decisions of CAAF condone unlawful or bad practices when OSI, CID, NCIS, and CGIS search cellphones; United States v. Shields and United States v. Lattin. As a result, the MCIOs are unlikely to change their unlawful or bad practices. More than sloppy police work gets two passes because the military appellate courts think suppression of evidence won’t change that behavior–and the accused is a bad person. Military defense lawyers need to be fully aware of the issues whenever evidence from an accused’s cellphone comes up in evidence.
The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.
In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.
Scope of the search
NMCCA has an interesting case on the scope of a consent search and subsequent actions when looking for evidence on a cellphone. I think many times we have seen this issue.
The MCIO gets a “limited” or narrow consent, but then just goes ahead and looks at everything claiming “plain view” and inevitablity.
United States v. Crocker is a government appeal worth the read–NMCCA affirms suppression of much of the search and also the resultant confession.
Suppressing that pesky search
There was a substantial basis for finding probable cause, and this didn’t even approach “bare bones.” “We must take care not to confuse a bare bones affidavit with one that merely lacks probable cause.” The motion to suppress was properly denied. United States v. Gilbert, 2020 U.S. App. LEXIS 7590 (6th Cir. Mar. 11, 2020):
We must take care not to confuse a bare bones affidavit with one that merely lacks probable cause. “Too often courts raise the Leon bar, making it practically indistinguishable from the probable cause standard itself.” Christian, 925 F.3d at 318 (Thapar, J., concurring). There must be daylight between the “bare bones” and “substantial basis” standards if Leon’s good-faith exception is to strike the desired balance between safeguarding Fourth Amendment rights and facilitating the criminal justice system’s truth-seeking function. See Leon, 468 U.S. at 906-07, 913-21; United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en banc). Thus, “[a]n affidavit cannot be labeled ‘bare bones’ simply because it lacks the requisite facts and inferences to sustain the magistrate’s probable-cause finding; rather, it must be so lacking in indicia of probable cause that, despite a judicial officer having issued a warrant, no reasonable officer would rely on it.” White, 874 F.3d at 497. Otherwise, “when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful,” excluding evidence recovered as a result of a technically deficient affidavit serves no useful purpose under the exclusionary rule. Davis v. United States, 564 U.S. 229, 238, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (quoting Leon, 468 U.S. at 909, 919). Before faulting an officer for executing a court-issued order, we must therefore find that the defects in the supporting affidavit were apparent in the eyes of a reasonable official. Leon, 468 U.S. at 921 (“[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.” (quoting Stone v. Powell, 428 U.S. 465, 498, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976) (Burger, C.J., concurring))).
Also,
Searching lawyers
We have had a number of military cases of the years involving searches of lawyer “files” or other materials.
Here is an interesting opinion from the Fourth Circuit about “taint teams.” The Fourth is not generally known as a defense friendly court.
4th Circuit Court of Appeals Opinion 31 October 2019
Searching car computers
I’ve had several cases of serious and fatal car wrecks. In the process the investigators have “searched” the car’s onboard computer. There’s is quite a bit of information than can be retrieved to evaluate such things as speed, acceleration, and braking, that can aid in a prosecution. So, here is a new decision in JDSupra, from the Georgia Supreme Court, of interest.
The Georgia Supreme Court ruled that the retrieval of electronic automobile data from an electronic data recording device (e.g., airbag control modules) without a warrant at the scene of a fatal collision was a search and seizure that implicates the Fourth Amendment, regardless of any reasonable expectations of privacy. (Mobley v. State, No. S18G1546 (Ga. Oct. 21, 2019)). The Court went on to hold that such retrieval of data was an unreasonable search and seizure forbidden by the Fourth Amendment, and that because the State failed to identify any recognized exception to the warrant requirement applicable to the facts, the trial court should have granted the motion to suppress. As such, the judgment of the Court of Appeals affirming the conviction of the defendant for vehicular homicide was reversed.
Fourth Amendment happenings
A couple of interesting items from John Wesley Hall’s excellent Fourth Amendment blog.
Without something to go on, the court declines to ascribe a supposed error in an address as a mere typo. Moreover, the affidavit fails to provide any nexus to defendant and the place to be searched, and the good faith exception is inapplicable. The court even finds the issuing judge failed to perform his or her judicial function in evaluating the affidavit. Andrews v. District of Columbia, 2019 D.C. App. LEXIS 336 (Aug. 15, 2019):
(1) The probable cause here was thin, and it was based on a CI’s credibility. The officer omitted important information to the CI’s credibility. This entitles him to at least a Franks hearing on remand. (2) A photograph of the motel room during the search shows the time as 25 minutes before the search warrant was issued. Whether the motel room clock was correct or not is a matter of speculation in light of the testimony, which the court credits instead. [What person has stayed in a hotel room where the clock was always correct? Nobody.] United States v. Clark, 2019 U.S. App. LEXIS 24332 (7th Cir. Aug. 15, 2019).
Voluntariness, consent, and all that
Sommers & Bohm, The Voluntariness of Voluntary Consent: Consent Searches and Psychology of Compliance. 128 YALE L. J. 1962 (2019).
Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of voluntariness are likely to be impaired by a systematic bias in social perception. Fact finders are likely to underappreciate the degree to which suspects feel pressure to comply with police officers’ requests to perform searches.
These findings suggest that decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indicates that a key justification for suspicionless consent searches—that they are voluntary—relies on an assessment that is subject to bias. The results thus provide support to critics who would like to see consent searches banned or curtailed, as they have been in several states.
MCIO fishing warrants
To get a search warrant for home surveillance equipment, the affidavit for the warrant has to show some inference or fact that there is, in fact, one to be found there. The mere fact they are a lot cheaper these days isn’t enough to get one. Foreman v. State, 2018 Tex. App. LEXIS 7264 (Tex. App. – Houston (14th Dist.) Aug. 31, 2018):
The parties have not cited, nor have we found, a case in which the Court of Criminal Appeals has determined under what circumstances a magistrate could reasonably infer that an electronic device exists in a particular location. This court has required specific facts to support an inference that those devices exist before we have allowed seizure or search of electronic devices pursuant to a warrant. This is demonstrated by our jurisprudence surrounding the searches of computers/cameras and cellphones.
Can there be a foul but no harm
In British football, a player can commit a foul which is technical and the other team gets a free kick, and everyone keeps playing. More serious fouls can result in a yellow card (two in a game and you are off the field) or a red card which means immediate removal from the field. Well, that’s now the rule for suppression motions in the military.
Why? On May 20, 2016, there was a change to Mil. R. Evid. 311. Now the military judge has to decide if the application of the exclusionary rule in the case of an unlawful search or seizure unless the military judge finds no deterrent effect of exclusion against the interests to be protected.
In a new appellate case from the Navy-Marine Corps Court of Criminal Appeals, United States v. Mottino, No. 201700153, 2017 CCA LEXIS 495 (N-M. Ct. Crim. App. Jul. 27, 2017) (unpub.), a three-judge panel of the Navy-Marine Corps CCA granted a prosecution appeal and reversed the military judge’s ruling suppressing evidence. They ruled that way because the military judge failed in her analysis and application of the law by not conducting the balancing test under Mil. R. Evid. 311(a)(3). This was a government appeal of the military judge’s ruling to exclude evidence. So the court remanded the case back to the trial judge so the parties and judge do get a do-over.