U.S. v. Eppes, 77 M.J. 339

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation; a search conducted pursuant to a warrant or search authorization is presumptively reasonable; when evidence is unlawfully obtained, however, an accused may timely move to suppress it and, pursuant to the exclusionary rule, a military judge may exclude it
2. the Fourth Amendment requires all warrants particularly describe the place to be searched, and the person or things to be seized; this requirement is conventionally explained as being intended to protect against general, exploratory rummaging in a person’s belongings; but it also serves to prevent circumvention of the requirement of probable cause by limiting the discretion of officers executing a warrant to determine the permissible scope of their search

Military Justice Personnel: Military Judge: Discretion

1. where the search authority has a substantial basis to find probable cause, a military judge does not abuse his discretion in denying a motion to suppress
2. in this case, where due to an apparent scrivener’s error, a search authorization for appellant’s person and personal vehicle omitted appellant’s personal bags, even though the affidavit in support of the authorization included the bags, the military judge did not abuse his discretion in admitting the contents of appellant’s personal bags where the law enforcement agents inevitably would have searched the bags and discovered their contents; first, the agents would have applied for and received authorization to search had they recognized the discrepancy omitting the bags; the agents conducted a search beyond the scope of the authorization, but within the confines of the affidavit; also, because the military judge made no finding of bad faith, it may be assumed that the agents were unaware of the discrepancy between the warrant and the affidavit; had the agents arrived at appellant’s office and noticed the personal bags, read the authorization, noticed the discrepancy, and decided not to search the bags, they could have, and likely would have lawfully seized the bags, with probable cause to do so, and either called a military magistrate and asked for an oral search authorization or left and obtained a written authorization to search the bags; furthermore, it is reasonable to conclude the agents would have applied for authorization to search the bags where they had earlier requested in the affidavit to search any bags found; the probable cause that existed to search appellant and his vehicle would still have supported any later request to search the bags had the illegality not occurred; second, the agents were actively pursuing leads that would have led them to the same evidence; third, there is no valid policy reason for applying the exclusionary rule in this case; and fourth, where the Fourth Amendment violation was likely not the result of deliberate misconduct in need of deterrence, any marginal deterrent benefit to be gained is far outweighed by the heavy costs exclusion would have — namely placing the government in a worse position than it would have been had the illegality not occurred

Core Criminal Law Subjects: Evidence: Generally

1. the Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation; a search conducted pursuant to a warrant or search authorization is presumptively reasonable; when evidence is unlawfully obtained, however, an accused may timely move to suppress it and, pursuant to the exclusionary rule, a military judge may exclude it

Core Criminal Law Subjects: Evidence: Search and Seizure › Exclusionary rule

1. when evidence is unlawfully obtained, an accused may timely move to suppress it and, pursuant to the exclusionary rule, a military judge may exclude it
2. admittedly drastic and socially costly, the exclusionary rule should only be applied where needed to deter police from violations of constitutional and statutory protections; the exclusionary rule’s sole purpose is to deter future Fourth Amendment violations; as such, its use is limited to situations in which this purpose is thought most efficaciously served; for exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs

Core Criminal Law Subjects: Evidence: Search and Seizure › Inevitable discovery

1. the independent source doctrine and the inevitable discovery doctrine, while similar, are separate exceptions to the exclusionary rule; the inevitable discovery rule is said to be a variation on the independent source rule; thus, under the inevitable discovery rule, the question is not whether the police did in fact acquire certain evidence by reliance upon an untainted (or independent) source, but rather whether evidence found because of a Fourth Amendment violation would inevitably have been discovered lawfully
2. the doctrine of inevitable discovery allows for the admission of illegally obtained evidence when the government demonstrates by a preponderance of the evidence that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence in a lawful manner; the inevitable discovery of the evidence must occur through routine procedures of a law enforcement agency and mere speculation and conjecture as to inevitable discovery is not sufficient
3. MRE 311(c)(2) codifies the inevitable discovery doctrine into military law: evidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made
4. while the inevitable discovery exception does not apply in situations where the government’s only argument is that it had probable cause for the search, the doctrine may apply where, in addition to the existence of probable cause, the police had taken steps in an attempt to obtain a search warrant
5. the inevitable discovery doctrine may apply where it is reasonable to conclude officers would have obtained a valid authorization had they known their actions were unlawful
6. the aim of the inevitable discovery exception to the exclusionary rule is to apply the doctrine in such a way as to not subvert the deterrence objective of the exclusionary rule
7. in this case, where due to an apparent scrivener’s error, a search authorization for appellant’s person and personal vehicle omitted appellant’s personal bags, even though the affidavit in support of the authorization included the bags, the military judge did not abuse his discretion in admitting the contents of appellant’s personal bags where the law enforcement agents inevitably would have searched the bags and discovered their contents; first, the agents would have applied for and received authorization to search had they recognized the discrepancy omitting the bags; the agents conducted a search beyond the scope of the authorization, but within the confines of the affidavit; also, because the military judge made no finding of bad faith, it may be assumed that the agents were unaware of the discrepancy between the warrant and the affidavit; had the agents arrived at appellant’s office and noticed the personal bags, read the authorization, noticed the discrepancy, and decided not to search the bags, they could have, and likely would have lawfully seized the bags, with probable cause to do so, and either called a military magistrate and asked for an oral search authorization or left and obtained a written authorization to search the bags; furthermore, it is reasonable to conclude the agents would have applied for authorization to search the bags where they had earlier requested in the affidavit to search any bags found; the probable cause that existed to search appellant and his vehicle would still have supported any later request to search the bags had the illegality not occurred; second, the agents were actively pursuing leads that would have led them to the same evidence; third, there is no valid policy reason for applying the exclusionary rule in this case; and fourth, where the Fourth Amendment violation was likely not the result of deliberate misconduct in need of deterrence, any marginal deterrent benefit to be gained is far outweighed by the heavy costs exclusion would have — namely placing the government in a worse position than it would have been had the illegality not occurred

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched; probable cause deals with probabilities; there is no specific probability required, nor must the evidence lead one to believe that it is more probable than not that contraband will be present; probable cause is a flexible, commonsense standard; it is not a technical standard, but rather is based on the factual and practical considerations of everyday life on which reasonable persons, not legal technicians, act
2. probable cause determinations made by a neutral and detached search authority are entitled to substantial deference; resolution of doubtful or marginal cases should be largely determined by the preference for warrants, and close calls will be resolved in favor of sustaining the search authority’s decision; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense manner; a grudging or negative attitude by reviewing courts towards warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant
3. a search authority must have a substantial basis for concluding probable cause exists; a substantial basis exists when, based on the totality of the circumstances, a common-sense judgment would lead to the conclusion that there is a fair probability that evidence of a crime will be found at the identified location; to establish probable cause, a sufficient nexus must be shown to exist between the alleged criminal activity, the things to be seized, and the place to be searched; such a nexus may be inferred from the facts and circumstances of a particular case, including the type of crime, the nature of the items sought, and reasonable inferences about where evidence is likely to be kept; in establishing probable cause, a magistrate may rely, in part, on the affiant law enforcement agent’s professional experience, knowledge, and expertise
4. in this case, the search of appellant’s residence was supported by probable cause and was therefore valid where the search authority had a substantial basis for concluding probable cause existed to reasonably infer evidence of appellant’s crimes, namely fraud against the government and other offenses, would probably be recovered on a computer in appellant’s home when the affidavit in support of the search authorization stated that (1) appellant had submitted false documents to the hotel personnel representing his wedding was an official event, (2) appellant had provided signed state tax exemption forms falsely certifying that several of the wedding attendees were on official business, (3) appellant made false claims about his tax status to hotel staff via email, (4) it had been discovered that appellant had produced fraudulent invitational travel orders for members of his and his fiancée’s family to travel purportedly to attend an earlier official Air Force event that never occurred, and (5) there was an indication appellant had previously engaged in similar misconduct involving fraud; in addition, the affidavit informed the issuing judge that appellant was a law enforcement official; the fact that the affidavit stated that appellant had used email to communicate with the hotel personnel raised a reasonable inference that appellant probably used a computer or other digital device or media as an instrumentality to pursue the suspected fraudulent scheme; the affidavit also supported the further reasonable inference that evidence of this type of criminal conduct, namely travel orders, letters, notes, financial records, and receipts, probably resided on such devices; finally, unlike the average servicemember or government employee, appellant, as a law enforcement official, had specialized knowledge and training about criminal investigative techniques and where individuals engaged in criminal conduct might secret the fruits and instrumentalities of their crimes; together, these facts established that the search authority could reasonably have inferred that given the nature of the criminal activity under investigation, appellant probably had evidence of this criminal activity and the instrumentalities used to carry it out at his residence; this inference is all the more reasonable given that there was no indication appellant lived elsewhere, and appellant shared both his workspace and his work computer with his coworkers
5. without some other incriminating facts, a search authority cannot reasonably infer that the average servicemember is more likely to store evidence of criminality on his home computer than on his work computer

Core Criminal Law Subjects: Evidence: Search and Seizure › Warrants

1. no search warrants shall issue, but upon probable cause, supported by oath or affirmation; a search conducted pursuant to a warrant or search authorization is presumptively reasonable
2. the Fourth Amendment requires all warrants particularly describe the place to be searched, and the person or things to be seized; this requirement is conventionally explained as being intended to protect against general, exploratory rummaging in a person’s belongings; but it also serves to prevent circumvention of the requirement of probable cause by limiting the discretion of officers executing a warrant to determine the permissible scope of their search
3. where a search warrant failed to expressly authorize a search of appellant’s personal bags, the search of his bags was beyond the scope of the search authorization

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; in reviewing such a ruling, it considers the evidence in the light most favorable to the prevailing party; it reverses for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law
2. probable cause determinations made by a neutral and detached search authority are entitled to substantial deference; resolution of doubtful or marginal cases should be largely determined by the preference for warrants, and close calls will be resolved in favor of sustaining the search authority’s decision; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense manner; a grudging or negative attitude by reviewing courts towards warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant
3. appellate courts may read an affidavit and warrant to include inferences the issuing magistrate reasonably could have made in authorizing a probable cause search
4. (in evaluating the issuing search authority’s probable cause finding, an appellate court examines: 1) the facts known to the authority when he issued the warrant, and 2) the manner in which he came to know these facts)