U.S. v. Hernandez, 81 M.J. 432

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment guarantees servicemembers’ right to be secure in their persons, houses, papers, and effects; it protects against unreasonable searches and seizures and requires warrants to be issued only if based upon probable cause; the Fourth Amendment’s protections apply when a person has a reasonable expectation of privacy, and servicemembers have such an expectation in the contents of their urine -- both as to the initial seizure of the urine and the results of a urinalysis test.; the President has incorporated the protections of the Fourth Amendment directly into the Military Rules of Evidence in MRE 311 through MRE 317

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not abuse his discretion when he determined that the information in the search authorization application was not false or reckless and concluded that the good faith exception to the exclusionary rule applied; although there were significant deficiencies in the law enforcement affidavit presented to the military magistrate, those deficiencies, standing alone without any other evidence of bad faith, did not establish a substantial preliminary showing that a government agent included a false statement knowingly and intentionally or with reckless disregard for the truth where (1) other than the errors and omissions in the affidavit itself, the record did not include any evidence of recklessness by the government agents, (2) the military judge found credible the testimony of the government agent who signed the affidavit despite the military judge’s recognition that the agent made misstatements in his affidavit, and (3) at the suppression motion, defense counsel expressly stated that she was not alleging improper conduct by the government agent who signed the affidavit

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

1. the Fourth Amendment guarantees servicemembers’ right to be secure in their persons, houses, papers, and effects; it protects against unreasonable searches and seizures and requires warrants to be issued only if based upon probable cause; the Fourth Amendment’s protections apply when a person has a reasonable expectation of privacy, and servicemembers have such an expectation in the contents of their urine -- both as to the initial seizure of the urine and the results of a urinalysis test.; the President has incorporated the protections of the Fourth Amendment directly into the Military Rules of Evidence in MRE 311 through MRE 317

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

1. under MRE 311(a), evidence seized pursuant to a search warrant issued without probable cause must be excluded unless an exception applies

Core Criminal Law Subjects: Evidence: Search and Seizure › Expectations of privacy

1. the Fourth Amendment guarantees servicemembers’ right to be secure in their persons, houses, papers, and effects; it protects against unreasonable searches and seizures and requires warrants to be issued only if based upon probable cause; the Fourth Amendment’s protections apply when a person has a reasonable expectation of privacy, and servicemembers have such an expectation in the contents of their urine -- both as to the initial seizure of the urine and the results of a urinalysis test.; the President has incorporated the protections of the Fourth Amendment directly into the Military Rules of Evidence in MRE 311 through MRE 317

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

1. under the good faith exception to the exclusionary rule, evidence obtained pursuant to a search warrant that was ultimately found to be invalid should not be suppressed if it was gathered by law enforcement officials acting in reasonable reliance on a warrant issued by a neutral and detached magistrate
2. under Supreme Court precedent, the good faith exception is unavailable when any of the following four circumstances are present: (1) the authorizing official was given incorrect information that was either known to be false or would have been known to be false except for reckless disregard of the truth; (2) the magistrate acted as a rubber stamp and thus, abandoned his judicial role; (3) the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the warrant was facially deficient
3. the good faith exception is incorporated in the Military Rules of Evidence in MRE 311(c)(3)
4. in order for the good faith exception to the exclusionary rule to apply in this case under MRE 311(c)(3), three requirements must be satisfied: (1) that the magistrate who issued the search authorization was competent to do so; (2) that the magistrate who issued the search authorization had a substantial basis for determining the existence of probable cause; and (3) that the investigators seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant; the second requirement is met when the individual executing the search had an objectively reasonable belief that the magistrate had a substantial basis for determining the existence of probable cause; although this is not the most obvious interpretation of the text of MRE 311(c)(3)(B), this interpretation is necessary to distinguish this prong of the good faith exception provision from the test for probable cause; if MRE 311(c)(3)(B) was given its literal meaning, the good-faith exception would not be an exception at all, and the language would serve no purpose
5. although the text of the four Supreme Court exceptions and the three MRE 311(c)(3) requirements do not align perfectly, MRE 311(c)(3) is construed in a manner consistent with the Supreme Court exceptions; MRE 311(c)(3)(B) addresses the first and third Supreme Court exceptions, i.e., the affidavit must not be intentionally or recklessly false, and it must be more than a bare bones recital of conclusions; MRE 311(c)(3)(C) addresses the second and fourth Supreme Court exceptions, i.e., objective good faith cannot exist when the police know that the magistrate merely rubber stamped their request, or when the warrant is facially defective
6. allegations of negligence or innocent mistake are insufficient to hold that a search warrant affidavit was drafted with a reckless disregard for the truth
7. in this case, the military judge did not abuse his discretion when he determined that the information in the search authorization application was not false or reckless and concluded that the good faith exception to the exclusionary rule applied; although there were significant deficiencies in the law enforcement affidavit presented to the military magistrate, those deficiencies, standing alone without any other evidence of bad faith, did not establish a substantial preliminary showing that a government agent included a false statement knowingly and intentionally or with reckless disregard for the truth where (1) other than the errors and omissions in the affidavit itself, the record did not include any evidence of recklessness by the government agents, (2) the military judge found credible the testimony of the government agent who signed the affidavit despite the military judge’s recognition that the agent made misstatements in his affidavit, and (3) at the suppression motion, defense counsel expressly stated that she was not alleging improper conduct by the government agent who signed the affidavit

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

1. the Fourth Amendment guarantees servicemembers’ right to be secure in their persons, houses, papers, and effects; it protects against unreasonable searches and seizures and requires warrants to be issued only if based upon probable cause; the Fourth Amendment’s protections apply when a person has a reasonable expectation of privacy, and servicemembers have such an expectation in the contents of their urine -- both as to the initial seizure of the urine and the results of a urinalysis test.; the President has incorporated the protections of the Fourth Amendment directly into the Military Rules of Evidence in MRE 311 through MRE 317
2. consistent with the Fourth Amendment, MRE 315(f)(1) mandates that all search authorizations must be based on probable cause; probable cause exists if there is a reasonable belief that the property or evidence to be searched is evidence of a crime; probable cause for issuing a search authorization exists when there is enough information for the authorizing official to have a reasonable belief that the person or evidence sought is located in the place or on the person to be searched
3. in deciding whether there was a substantial basis for probable cause, the magistrate looks to the totality of the circumstances; the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that evidence of a crime will be found in a particular place; a finding of probable cause does not require officers to rule out a suspect’s innocent explanations for suspicious facts; instead, it merely requires that a person of reasonable caution could believe that the search may reveal some evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false; when deciding whether probable cause exists the authorizing official is free to draw reasonable inferences from the material supplied by those applying for the authority to search; but, as a threshold matter, for there to be probable cause, a sufficient nexus must be shown to exist between the alleged crime and the specific item to be seized

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

1. the Fourth Amendment guarantees servicemembers’ right to be secure in their persons, houses, papers, and effects; it protects against unreasonable searches and seizures and requires warrants to be issued only if based upon probable cause; the Fourth Amendment’s protections apply when a person has a reasonable expectation of privacy, and servicemembers have such an expectation in the contents of their urine -- both as to the initial seizure of the urine and the results of a urinalysis test.; the President has incorporated the protections of the Fourth Amendment directly into the Military Rules of Evidence in MRE 311 through MRE 317
2. consistent with the Fourth Amendment, MRE 315(f)(1) mandates that all search authorizations must be based on probable cause; probable cause exists if there is a reasonable belief that the property or evidence to be searched is evidence of a crime; probable cause for issuing a search authorization exists when there is enough information for the authorizing official to have a reasonable belief that the person or evidence sought is located in the place or on the person to be searched
3. in deciding whether there was a substantial basis for probable cause, the magistrate looks to the totality of the circumstances; the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that evidence of a crime will be found in a particular place; a finding of probable cause does not require officers to rule out a suspect’s innocent explanations for suspicious facts; instead, it merely requires that a person of reasonable caution could believe that the search may reveal some evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false; when deciding whether probable cause exists the authorizing official is free to draw reasonable inferences from the material supplied by those applying for the authority to search; but, as a threshold matter, for there to be probable cause, a sufficient nexus must be shown to exist between the alleged crime and the specific item to be seized
4. under MRE 311(a), evidence seized pursuant to a search warrant issued without probable cause must be excluded unless an exception applies
5. allegations of negligence or innocent mistake are insufficient to hold that a search warrant affidavit was drafted with a reckless disregard for the truth
6. suppression of evidence gathered pursuant to a warrant is a last resort, not a court’s first impulse
7. the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or in objective good faith

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. when CAAF reviews a lower court’s holding on the ruling of a trial court, it typically pierces through the intermediate level and examines the military judge’s ruling, and then it decide whether the CCA was right or wrong

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

1. (an appellate court reviews a military judge’s denial of a motion to suppress evidence for an abuse of discretion; an abuse of discretion occurs when a military judge’s decision is based on clearly erroneous findings of fact or incorrect conclusions of law}
2. in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the party that prevailed on the motion at trial
3. an appellate court reviews a military magistrate’s finding of probable cause for the issuance of a warrant based on whether the magistrate had a substantial basis for concluding that probable cause existed; this review is conducted with great deference to the magistrate’s finding of probable cause because of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant
4. if a law enforcement affidavit on which a magistrate relied included incorrect information, an appellate court should sever that information from the affidavit and examine the remainder to determine if probable cause still exists; if an important fact is omitted from the affidavit, for an appellate court to find that probable cause did not exist, that fact must do more than potentially affect the probable cause determination; it must be necessary to the finding of probable cause
5. a military judge’s determination that the information in a search authorization application was not false or reckless is a finding of fact that an appellate court may review only for clear error; a finding of fact is clearly erroneous when there is no evidence to support the finding or when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed
6. credibility determinations are entitled to great deference on appeal and will not be reversed absent a clear abuse of discretion