U.S. v. Perkins, 78 M.J. 381

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

1. MRE 311(a) generally makes evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity inadmissible against the accused
2. under MRE 311(a), seized evidence should be excluded if there was no probable cause for the search authorization unless an exception applies
3. under MRE 311(c)(3)(B), the second requirement for the good faith exception is that the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; this requirement is satisfied if the law enforcement official had an objectively reasonable belief that the magistrate had a substantial basis for determining the existence of probable cause
4. in this case, the law enforcement official had an objectively reasonable belief that the magistrate had a substantial basis for determining the existence of probable cause where the official received and apparently relied on the advice of the local trial counsel, the regional trial counsel, and the staff judge advocate, and when the magistrate issued the search authorization, the official could reasonably have concluded that the magistrate was confirming what these three lawyers had already told the official
5. to the extent that the decision in US v. Hoffmann, 75 MJ 120 (CAAF 2016) differs from US v. Carter, 54 MJ 414 (CAAF 2001) in interpreting the second requirement for the good faith exception under MRE 311(c)(3), it is disapproved

Core Criminal Law Subjects: Evidence: Search and Seizure › Good faith exception

1. there are three elements of the good faith exception in MRE 311(c)(3): (1) the search or seizure resulted from an authorization issued by an individual competent to issue the authorization; (2) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and (3) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant; good faith is determined using an objective standard
2. a flaw in legal reasoning is not a determinative factor in deciding whether a law enforcement agent acted in good faith
3. law enforcement agents do not act in good faith if they know that the magistrate merely rubber stamped their request, or when the warrant is facially defective
4. in this case, to the extent, if any, that the law enforcement official erroneously relied on the urgent need to conduct the search to establish probable cause, nonetheless, the official reasonably and with good faith relied on the base commander’s authorization for a search of the accused’s residence, where (1) the commander’s request for all the facts in detail before making a decision would have indicated to the official that the commander was not rubber-stamping the application, (2) the search authorization was not facially defective but identified the place to search and described in detail what to look for, (3) any misunderstanding by the official of the law regarding probable cause resulted from the official’s reliance on the opinion of multiple attorneys, and (4) the official halted the search and requested an expanded search authorization immediately upon discovering military gear in the accused’s garage; as such, all the requirements of the good faith exception in MRE 311(c)(3) were satisfied

Core Criminal Law Subjects: Evidence: Search and Seizure › Neutral and detached

1. a fundamental principle of the Fourth Amendment is that a magistrate failing to manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application and who acts instead as an adjunct law enforcement officer cannot provide a valid authorization for an otherwise unconstitutional search

Core Criminal Law Subjects: Evidence: Waiver

1. under MRE 311(d)(2)(A), arguments for suppression of evidence under MRE 311 that are not made at trial are waived
2. the accused must make a particularized objection to the admission of evidence, otherwise the issue is waived and may not be raised on appeal; a particularized objection is necessary so that the government has the opportunity to present relevant evidence that might be reviewed on appeal
3. in this case, at trial, appellant argued only that the search authorization was unconstitutionally vague, was lacking in probable cause, and failed to meet the particularity requirement of the Fourth Amendment; because Appellant did not raise the argument that the magistrate had failed to act in a neutral and detached manner at trial, he cannot raise it for the first time on appeal and the argument is waived

Trial Stages: Appeals: Scope of Review

1. a familiar principle of appellate practice is that an appellee or respondent may defend the judgment below on a ground not earlier aired
2. in this case, although the government did not address the good faith exception in responding to the accused’s motion to suppress before the military judge, the government was permitted to raise the good faith exception at the CAAF in responding to appellant’s appeal because the military judge did not rule on whether the government agents acted in good faith; as such, the law of the case doctrine did not preclude appellate consideration of the government’s argument

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

1. overruling precedent by implication is disfavored
2. when precedents conflict, an appellate court typically follows the more recent decision
3. an appellate court will not overturn precedent that has been treated as authoritative for a long time unless the most cogent reasons and inescapable logic require it