U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700077
_________________________
UNITED STATES OF AMERICA
Appellee
v.
CALVIN E. PERKINS, JR.
Sergeant (E-5), U.S. Marine Corps
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges: Col J.K. Carberry, USMC; Major M.D. Zimmerman,
USMC.
Convening Authority: Commanding Officer, Marine Corps Air
Station Yuma, Yuma, AZ.
Staff Judge Advocate’s Recommendat ion: Lieutenant Colonel
Jennifer S. Parker, USMC.
For Appellant: Lieutenant Commander William L. Geraty, JAGC,
USN.
For Appellee: Lieutenant Kurt W. Siegal, JAGC, USN; Captain Sean
M. Monks, USMC.
_________________________
Decided 12 July 2018
_________________________
Before HUTCHISON, FULTON, AND SAYEGH, Appellate Military Judges
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
FULTON, Senior Judge:
A panel of officer and enlisted members, sitting as a general court-
martial, convicted the appellant, contrary to his pleas, of one specification of
conspiracy to commit larceny and one specification of violating a lawful
general order in violation of Articles 81 and 92, Uniform Code of Military
Rereleased on 13 July 2018 as a Published Opinion
United States v. Perkins, No. 201700077
Justice (UCMJ).1 The convening authority approved the adjudged sentence of
reduction to paygrade E-1 and a bad-conduct discharge. The appellant
assigns three errors:
(1) the military judge should have suppressed evidence discovered during
a search of the appellant’s house because the search authorization was not
supported by probable cause;
(2) the military judge erred by taking judicial notice that an order
requiring the appellant to register his personal firearms was a lawful general
order; and
(3) the appellant’s conviction for violating a lawful general order is legally
and factually insufficient because the government failed to prove that the
relevant order was a lawful general order.
We conclude that the findings and sentence are correct in law and fact
and that no error materially prejudiced the substantial rights of the
appellant.2
I. BACKGROUND
The appellant was an active duty Marine stationed on board Marine
Corps Air Station Yuma, Arizona. MI, a woman with whom the appellant had
been romantically involved, complained to Naval Criminal Investigative
Service (NCIS) Special Agent JJ that the appellant had committed extortion
by threatening to make public nude pictures and videos that the appellant
had taken of her without her consent. During the investigation that followed,
NCIS agents searched the appellant’s on-base residence for digital media and
found what they believed to be stolen military property. Before trial, the
appellant moved to suppress military property NCIS discovered while
searching the appellant’s home. The appellant contended that the search
authorization was not supported by probable cause. The military judge
denied the motion, and the appellant argues that the military judge erred.
During a brief hearing on the motion to suppress, the government
presented the telephonic testimony of Special Agent JJ and an affidavit from
the base commanding officer (CO) who had verbally issued the search
authorization. Special Agent JJ testified to the information she received from
MI, whom Special Agent JJ had interviewed at a victim advocate center.
Questioning by the military judge revealed that the interview had been
recorded, but the record does not indicate that the CO heard the recording
before authorizing the search. MI’s account was not under oath.
1 10 U.S.C. §§ 881 and 892.
2 Arts. 59(a) and 66(c), UCMJ.
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United States v. Perkins, No. 201700077
MI told Special Agent JJ that the appellant had threatened to release
nude pictures and videos of her unless she agreed to purchase items for him.
MI denied ever seeing any such pictures or video and did not specifically
claim to have seen the appellant take any. But she did recall the appellant
“using his cell phone while they [were] having sexual relations.”3 MI did not
say where she thought the recordings might have happened, nor did she
suggest that the appellant kept any cameras in his home that could have
been used to make these recordings.
According to Special Agent JJ, MI said that the appellant “possibly was
storing electronic media containing all these videos and footage of them
having sex,”4 and she “did [al]lude to the potential of him using other devices
. . . in his house, electronic devices capable of storing such media.”5 MI also
said that the appellant “may have extorted other individuals, that he might
possess unregistered firearms, and was possibly storing illegally obtained
items in his storage unit that he had off base.”6
Besides speaking to NCIS, MI told the sergeant major of the appellant’s
squadron that the appellant had been stalking her, and that she was in fear
for her life for having made the report to NCIS. At MI’s request, the
appellant’s squadron drafted a military protective order and contacted the
appellant, who was out of state on leave, and directed that he return to base
that night to acknowledge receipt of the order. MI did not speak to the base
CO.
Since the appellant’s squadron had directed the appellant to come back to
Yuma that night, Special Agent JJ decided to ask the base CO for “a
command authorized search and seizure under exigent circum[stances]
because of the possibility of him destroying evidence.”7 Before approaching
the base CO, Special Agent JJ consulted with trial counsel and the base staff
judge advocate, who agreed that a command authorized search of the
appellant’s home “under exigent circumstances” was appropriate.8 Then she
called the base CO. She told him “all [the] known facts at the time[.]”9 When
the CO responded by asking Special Agent JJ to “explain all the facts in
3 Record at 14.
4 Id. at 11.
5 Id. at 14.
6 Id. at 11.
7 Id. at 12.
8 Appellate Exhibit (AE) III at 5; see also Record at 14.
9 Record at 14.
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United States v. Perkins, No. 201700077
detail,” she told him that she had consulted the staff judge advocate and the
trial counsel, and “explained the residence, where it was located, the impact
it could have on the community on Marine Corps Air Station Yuma.”10
Special Agent JJ testified that, based on this information, the CO “agreed
to issue a verbal command authorized search and seizure under exigent
circumstances . . . .”11 The authorization covered the entire residence.
Because Special Agent JJ thought that the evidence she sought could have
been stored on a cell phone’s memory, or “SD” card, and that the SD card
might have been removed from the cell phone, she understood the
authorization to extend to “anything that was small enough to contain . . . a
very, very small media storage device . . . it can be something as small as a
nail.”12
At the hearing on the motion, the government also provided an affidavit
signed by the base CO explaining his probable cause determination. The
relevant portion of the affidavit is short:
[JJ] informed me that a female civilian, [MI], reported earlier
that day that Sgt Perkins was extorting her by threatening to
reveal personal nude videos and photographs if she did not
purchase him goods. Agent [JJ] informed me that the videos
and pictures were likely contained inside of Sgt Perkins’ home,
and due to an earlier conversation with [the appellant’s
sergeant major], she believed Sgt Perkins was returning to the
home that very evening. I determined that there was probable
cause for a search . . . .13
The government presented no other evidence supporting the CO’s
probable cause determination.
The search of the appellant’s home did not reveal any nude photos or
videos of MI. It did, however, result in NCIS’s discovery of government
property in the appellant’s garage. NCIS obtained a second search
authorization allowing agents to seize this property as evidence. This
evidence led to the appellant’s conviction for conspiracy.
Ruling from the bench, the military judge denied the motion to suppress.
The military judge found that the CO’s probable cause determination was
based on the information he received from Special Agent JJ. The military
10 Id.
11 Id.
12 Id. at 16.
13 AE IV at 7.
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United States v. Perkins, No. 201700077
judge found that this information constituted probable cause to believe that
agents would find digital media in the appellant’s home containing evidence
of the extortion.
We address the facts relevant to the other two assignments of error in the
discussion section.
II. DISCUSSION
The appellant contends that the military judge abused his discretion by
finding that the CO had probable cause to authorize the search of his home.
Although we agree that the CO lacked probable cause, we find that the
resulting evidence was admissible under the good faith exception to the
exclusionary rule.
A. Probable cause to authorize search
1. Applicable law
We review a military judge’s denial of a motion to suppress for an abuse of
discretion.14 We reverse for an abuse of discretion if the military judge’s
findings of fact are clearly erroneous or if his or her decision is influenced by
an erroneous view of the law.15 We consider the evidence in the light most
favorable to the prevailing party, in this case the government.16
Courts are not to conduct a de novo review of a commander’s probable
cause determination. Rather, we give great deference to that determination
and examine whether a commander had a substantial basis for concluding
that probable cause existed.17 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.”18 Although we consider the evidence in the
light most favorable to the prevailing party,19 deference to the commander’s
determination is not boundless, and we may conclude that the commander’s
probable cause determination “reflected an improper analysis of the totality
of the circumstances[.]”20 Although a person authorizing a search may rely in
14 United States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016).
15 United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999).
16 United States v. Macomber, 67 M.J. 214, 219 (C.A.A.F. 2009).
17 United States v. Rogers, 67 M.J. 162, 164-65 (C.A.A.F. 2009).
18 Id. at 165 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).
19 United States v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001) (citing United States
v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996)).
20 United States v. Leon, 468 U.S. 897, 915 (1984) (citation omitted).
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United States v. Perkins, No. 201700077
part on the expertise and experience of a law enforcement officer, “[s]ufficient
information must be presented to the magistrate to allow that official to
determine probable cause; his action cannot be a mere ratification of the bare
conclusions of others.”21
The Military Rules of Evidence provide that when a seizure is made
pursuant to a search authorization, the search authorization must be based
upon probable cause.22 Probable cause “is a fluid concept—turning on the
assessment of probabilities in particular factual contexts[.]”23 A commander
considering a request for a search authorization must “make a practical,
common-sense decision whether, given all the circumstances set forth in the
affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.”24
Probable cause requires not just that the sources of information be
sufficiently reliable, but also a sufficient nexus between the alleged crime and
the specific place to be searched or item to be seized.25
Reviewing courts may read the matters supporting the probable cause
determination to include inferences the issuing officer reasonably could have
made and consider whether that officer might have made these inferences in
reaching a probable cause determination.26
2. Analysis of probable cause determination
We are working with a limited factual record. As this was a telephonic
request for a search authorization, Special Agent JJ did not create an
affidavit in support of her request to the CO. Special Agent JJ’s testimony in
support of the government’s opposition to the motion is vague. And the CO’s
affidavit, prepared for the purpose of supporting his probable cause
determination at the motion hearing, contains little more than a recital of the
allegation against the appellant and the fact that Special Agent JJ told him
that she thought it likely that NCIS would find the nude pictures and videos
21 Id. (citations and internal quotation marks omitted).
See MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 315(f)(1); SUPPLEMENT TO
22
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (MCM).
23 Gates, 462 U.S. at 232.
24 Id. at 238; see also Ornelas v. United States, 517 U.S. 690, 696 (1996) (probable
cause to search “exist[s] where the known facts and circumstances are sufficient to
warrant a man of reasonable prudence in the belief that contraband or evidence of a
crime will be found” in a particular place (citation omitted)).
25 See United States v. Nieto, 76 M.J. 101, 106 (C.A.A.F. 2017).
26 See United States v. Eppes, 77 M.J. 339, 345 (C.A.A.F. 2018).
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of MI in the appellant’s home. After considering the evidence of record and
granting the CO’s determination the deference it is due, we find that the
government did not carry its burden on the motion of demonstrating that the
base CO had a substantial basis for issuing the search authorization.
First, the record does not include any evidence addressing MI’s veracity or
provide any reason for the CO to have found MI’s account credible. MI’s
account to Special Agent JJ was, so far as we can tell, unsupported by any
corroborating evidence.
Even if we were to take MI’s account at face value and allow for every
reasonable inference the CO could have drawn, MI’s account did not provide
probable cause to search the appellant’s home. No one explicitly claimed to
have seen the appellant create any illicit media of MI—she merely said he
had used his cell phone while they were engaged in sexual activity and that
later he threatened to reveal pictures and videos. There was no reason to
believe the appellant’s cell phone was anywhere except with the appellant,
who was out of the state. There is no evidence that MI claimed that these
alleged images were created in the appellant’s home or with a device likely to
be found in the appellant’s home. No one identified any particular device in
the appellant’s home that would have been a likely place for the appellant to
have stored any such videos or images. In short, there was no substantial
basis for the CO to conclude there was a fair probability that NCIS would
find illicit images or videos of MI in the appellant’s house.
During the hearing on the motion, trial counsel attempted to justify the
search of the appellant’s home at a time when there was no reason to believe
that the appellant’s cell phone was in the home:
TC: Special Agent [JJ], you asked for—even though it was—the
information you had was that these photos were taken with a
cell phone. Why did you ask for the search to [sic] broader than
just cell phones?
Wit: Because cell phones are known to contain media cards
capable of storing information and data on them. These media
cards can be removed from the cell phone at any time, and they
can be stored in a residence anywhere virtually.27
Taking this testimony to be true, we find that it does not constitute a
substantial basis to find probable cause. It is possible that the appellant
could have made illicit pictures and videos on a cell phone in such a way that
they were stored on the phone’s SD card. It is also possible that the appellant
took the SD card out of his phone for some reason. It is possible that the
27 Record at 16.
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appellant then stored this SD card somewhere in his home. But probable
cause requires more than an assessment that something is possible. It
requires a fair probability that evidence will be found in a particular place.
Nothing in Special Agent JJ’s speculation about what the appellant might
have done with his phone’s SD card supported a probable cause
determination.
The recent Court of Appeals for the Armed Forces (CAAF) case United
States v. Nieto provides a useful comparison to our case.28 Specialist Nieto
was suspected of using his cell phone to photograph other soldiers while they
were using the latrine.29 Acting on a tip that someone had seen a cell phone
and a laptop on Nieto’s bunk, a Criminal Investigative Division special agent
sought authorization to seize and search the two items.30 The agent did not
have any direct evidence that any files had been transferred to the laptop or
even evidence that they could be.31 The agent supported his request by
informing the magistrate that he knew that soldiers used their cell phones to
take pictures, and that they normally downloaded those photos to their
laptops.32 The magistrate authorized the agent’s search of the laptop on this
information, and the military judge denied a motion to suppress.33
The CAAF held that the magistrate did not have a substantial basis for
his probable cause determination because “there was an insufficient
particularized nexus linking Appellant’s misconduct to his laptop.”34 The
CAAF found that “[Nieto’s] cell phone, by itself, had the ability to serve both
as the instrumentality of the crime and as a storage device for the fruit of
that crime.”35 Therefore, the agent’s rationale for searching the laptop was
“technologically outdated and was of little value in making a probable cause
determination.”36 There was no direct evidence that Nieto had transferred
any images to the laptop, and nothing supported a reasonable inference on
the magistrate’s part that he had.37 The agent’s generalizations about what
28 See generally Nieto, 76 M.J. 101.
29 Id. at 103.
30 Id.
31 Id. at 103-04.
32 Id. at 104.
33 Id. at 105.
34 Id. at 103.
35 Id. at 107.
36 Id.
37 Id.
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people did with the pictures on their cell phones did not provide a substantial
basis for concluding that probable cause existed to seize Nieto’s laptop.38
The authorization in the appellant’s case is not as well supported as the
one in Nieto. Unlike the agent in Nieto, Special Agent JJ could not even
identify a particular device that was the proper subject of the search or a
reason why such a device would be in the appellant’s house. MI had made a
generalized contention that the appellant had “other devices in his house,
electronic devices capable of storing such media,” but this tells us almost
nothing about what they might be or why incriminating images might be on
them.39 The most concrete nexus between the requested authorization and
potential evidence is the possibility that the appellant removed the SD card
from his phone and stored it in his house while he (and his cell phone) were
out of state. Special Agent JJ, however, did not provide the CO with any
reason to think that was at all probable. The case for probable cause in this
case is weaker than the one in Nieto.
We have made allowances for the proposition, reinforced recently by the
CAAF in United States v. Eppes, that a nexus between the alleged criminal
activity and a proposed search “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.”40 We acknowledge that the record may not reflect everything that
the CO might have been told. But it is the paucity of the record and the
absence of evidence supporting the CO’s determination and the military
judge’s ruling that drive our analysis. Completion of the probable cause
picture would require speculation, not reasonable inferences. Even if we
credit the CO with every reasonable inference he might have drawn from the
information the record shows he had, we still find that there was no
substantial basis for his probable cause determination. We find that the
military judge abused his discretion by finding otherwise.
B. Good faith exception
Even though the government failed to show that the CO had probable
cause to issue the search authorization, the resulting evidence is still
admissible if the government can establish by a preponderance of the
evidence that the evidence was subject to the good faith exception to the
exclusionary rule.
38 Id. at 108.
39 Record at 14.
40 Eppes, 77 M.J. at 345 (quoting Nieto, 76 M.J. at 106).
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The good faith exception is governed by MIL. R. EVID. 311(c)(3), which
provides as follows:
(3) Good Faith Execution of a Warrant or Search Authorization.
Evidence that was obtained as a result of an unlawful search or
seizure may be used if:
(A) the search or seizure resulted from an authorization
to search, seize or apprehend issued by an individual
competent to issue the authorization under MIL. R. EVID.
315(d) or from a search warrant or arrest warrant issued by
competent civilian authority;
(B) the individual issuing the authorization or warrant
had a substantial basis for determining the existence of
probable cause; and
(C) 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 to be
determined using an objective standard.41
The CAAF recently acknowledged “tension between [its] discussion of the
good-faith doctrine” in its case law interpreting this rule.42 We discern two
apparently distinct lines of precedent in the CAAF’s case law relevant to
determining whether the good faith exception applies. Both lines of precedent
have a claim on our statement of the applicable law. The difference between
precedents concerns how we interpret MIL. R. EVID. 311(c)(3)(B), which
requires the individual issuing the authorization or warrant to have had a
substantial basis for determining the existence of probable cause. One
precedent, United States v. Hoffmann, applies the plain language of the
rule.43 The other, the CAAF’s earlier decision in United States v. Carter,
recasts this prong to ask whether the law enforcement official executing the
search believed the person issuing the authorization had a substantial basis
to find probable cause.44 We find that our choice of authorities determines the
outcome of this issue. We will address both precedents in our analysis.
41 MIL. R. EVID. 311(b)(2)(A)-(C), SUPPLEMENT TO MCM (2012 ed.).
42 Nieto, 76 M.J. at 108 n.6 (citing Hoffmann, 75 M.J. at 127-28, and Carter, 54
M.J. at 419-22).
43 Hoffmann, 75 M.J. at 128.
44 Carter, 54 M.J. at 422.
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1. United States v. Hoffmann
In Hoffmann, the CAAF applied the plain language of MIL. R. EVID.
311(c)(3) to determine if otherwise excludable evidence qualified for the good
faith exception.45 The CAAF concluded that since “the individual issuing the
authorization did not have a substantial basis for determining the existence
of probable cause, a requirement for application of the good-faith exception
[and thus] the military judge abused her discretion in admitting the fruits of
the search of Appellant’s digital media.”46 Applying the plain language of the
rule to this case as the CAAF did in Hoffman is straightforward. Subsection
(B) of the rule requires the person who authorized the search to have had a
substantial basis for finding probable cause. We have found that the CO did
not have a substantial basis for finding probable cause to authorize the initial
search of the appellant’s home. Therefore, under Hoffman, the evidence does
not qualify for the exception.
2. United States v. Carter
Carter purports to apply the Supreme Court’s seminal good faith case,
United States v. Leon, to courts-martial.47 In the civilian context, both the
exclusionary rule and the good faith exception to the rule are creations of
Supreme Court case law. In Leon, the Supreme Court considered the
suppression of evidence police gathered while executing a search warrant.48
Although the warrant was facially valid, the trial court found that its
issuance was not supported by probable cause and suppressed the affected
evidence.49 The issue in Leon was whether evidence obtained in good faith
reliance on a facially valid warrant should be suppressed.
The Court began its analysis expressing a strong preference for—and a
resulting deference to—search warrants.50 A warrant ‘“provides the detached
scrutiny of a neutral magistrate, which is a more reliable safeguard against
improper searches than the hurried judgment of a law enforcement officer
engaged in the often competitive enterprise of ferreting out crime.”’51 The
45 Hoffmann, 75 M.J. at 128.
46 Id.
47 Carter, 54 M.J. at 421.
48 Leon, 468 U.S. at 900-05.
49 Id. at 902-04.
50 Id. at 913-14.
51 Id. (quoting United States v. Chadwick, 433 U.S. 1, 9 (1977)).
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Court’s preference for the protections warrants provide “is most appropriately
effectuated by according ‘great deference’ to a magistrate’s determination.”52
Having expressed its preference for search warrants, Leon held that, in
general, evidence obtained in good faith reliance on a search warrant would
not be suppressed. But, as explained by the CAAF in Carter, Leon listed four
circumstances in which the good faith exception was not available to the
government:
(1) False or reckless affidavit—Where the magistrate “was
misled by information in an affidavit that the affiant knew was
false or would have known was false except for his reckless
disregard of the truth”;
(2) Lack of judicial review—Where the magistrate “wholly
abandoned his judicial role” or was a mere rubber stamp for the
police;
(3) Facially deficient affidavit—Where the warrant was based
on an affidavit “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable”;
and
(4) Facially deficient warrant—Where the warrant is “so
facially deficient—i.e., in failing to particularize the place to be
searched or the things to be seized—that the executing officers
cannot reasonably presume it to be valid.53
Leon’s good faith exception to the exclusionary rule (and the four
exceptions to the exception) reflect the Court’s determination that police—not
magistrates—are the proper objects of suppression’s deterrence.54 The Court
reasoned that magistrates, as neutral and detached judicial officers, “have no
stake in the outcome of particular criminal prosecutions.”55 Suppression,
then, would not deter a magistrate from making future errors or motivate
compliance with the Fourth Amendment.56 Because the focus is on the police,
“evidence obtained from a search should be suppressed only if it can be said
that the law enforcement officer had knowledge, or may properly be charged
52 Id. at 914 (citing Spinelli v. United States, 393 U.S. 410 (1969)) (additional
citations omitted).
53 Carter, 54 M.J. at 419-20 (citation omitted).
54 Leon, 468 U.S. at 916.
55 Id. at 917.
56 Id.
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with knowledge, that the search was unconstitutional under the Fourth
Amendment.”57
In Carter, the CAAF attempted to reconcile MIL. R. EVID. 311(c)(3)’s
three-pronged good faith test with Leon. But this is not easily done. In order
for a search to qualify for the good faith exception under the plain language of
the rule’s second prong, the person issuing the authorization must have had a
substantial basis for finding probable cause. This is inconsistent with Leon,
which held that a search might qualify for the good faith exception even if the
magistrate did not have a substantial basis for his determination, so long as
the police executing the warrant themselves acted in good faith.58
The difference could not be elegantly harmonized. To make it work, the
Carter court recast the rule’s second prong. Where the rule asks whether the
person issuing the authorization had a substantial basis for finding probable
cause, Carter changes the question to ask whether the police executing the
search reasonably believed that the magistrate had a substantial basis for
finding probable cause.59
In considering MIL. R. EVID. 311(c)(3), Hoffmann, and Carter, we
recognize that we should “exhaust all possibilities of reconciling the two
decisions” before committing to one and disregarding the other.60 But as we
have seen, Carter’s approach to MIL. R. EVID. 311(c)(3) is inconsistent with
the rule’s plain language, and Hoffmann’s plain-language approach is
therefore inconsistent with Carter. We have considered whether Carter or the
CAAF’s later decision in Hoffmann represents the precedent binding upon
this court.61 Although Hoffman is the more recent of the two decisions, the
CAAF has cited Carter favorably as recently as last year in United States v.
57 Id. at 919.
58 Id.
59 Compare MIL. R. EVID. 311(c)(3)(B) (“[T]he individual issuing the authorization
or warrant had a substantial basis for determining probable cause . . .”) with Carter,
54 M.J. at 422 (“‘Substantial basis’ as an element of good faith examines the affidavit
and search authorization through the eyes of a reasonable law enforcement official
executing the search authorization. In this context, the second prong of MIL. R. EVID.
311(c)(3) 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.”).
60 BRYAN A. GARNER, ET AL., THE LAW OF JUDICIAL PRECEDENT 301-02 (2016).
61 Id. at 302.
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Darnall, though it did not perform any analysis of the issue and did not
address Hoffmann.62
We conclude that we are still bound by Carter. We are reluctant to
assume that the CAAF has tacitly reversed its own precedent. Hoffmann
made no mention of Carter and did not purport to change any precedents
binding on this court. The absence of language explicitly overruling Carter
and the CAAF’s recent re-articulation of Carter’s good faith test in Darnall
convince us that we may not disregard this precedent.
Applying Carter’s harmonization of Leon and MIL. R. EVID. 311(c)(3) to
our admittedly limited factual record, we conclude that the initial search of
the appellant’s residence was done in good faith. There is no question that
the rule’s first prong is met. The CO had the authority to authorize Special
Agent JJ’s search of the appellant’s on-base residence. The second prong, as
modified by Carter, asks whether Special Agent JJ reasonably believed that
the magistrate had a substantial basis for finding probable cause. We find
that she did. Special Agent JJ provided enough specific information to the CO
to meet this low standard. She was investigating a specific allegation and
was able to articulate reasons why evidence might be found in the appellant’s
house. We found that this information did not constitute probable cause or
even a substantial basis on which to find probable cause. But the case for
probable cause is not “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable[.]”63
Special Agent JJ’s communication with and apparent reliance on the
advice of the appropriate attorneys is an important factor in our resolution of
this prong. The CO’s probable cause determination would have seemed to be
a ratification of what trial counsel and the staff judge advocate had already
told Special Agent JJ: probable cause existed to search the appellant’s home.
The fact that Special Agent JJ knew that the CO, trial counsel, and the staff
judge advocate all came to the same conclusion is a compelling reason to find
that she reasonably believed that the CO had a substantial basis for that
conclusion.
Turning to the third prong, we find that Special Agent JJ reasonably and
with good faith relied on the issuance of the authorization. Special Agent JJ
did not procure the authorization through the use of any intentionally or
62 See United States v. Darnall, 76 M.J. 326, 332 (C.A.A.F. 2017) (“The ‘good faith’
exception to the exclusionary rule [applies] in cases where the official executing the
warrant relied on the magistrate’s probable cause determination and the technical
sufficiency of the warrant, and that reliance was ‘objectively reasonable.’”) (quoting
Carter, 54 M.J. at 419 (citing Leon, 468 U.S. at 922)).
63 Carter, 54 M.J. at 419.
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recklessly false information. The authorization was sufficiently particular,
and Special Agent JJ had articulated a basis for the scope of the search.
Again, her request had been vetted by the very lawyers who were responsible
for providing her and the CO with legal advice concerning her request. The
record contains no evidence of bad faith on the part of Special Agent JJ. We
also find no evidence that Special Agent JJ acted with “deliberate, reckless,
or grossly negligent disregard” for the appellant’s Fourth Amendment
rights.64 We find her reliance on the erroneously granted authorization to be
objectively reasonable. All three prongs of MIL. R. EVID. 311(c)(3) having been
met, we find that the evidence derived from the initial search of the
appellant’s home to be admissible under the good faith exception to the
suppression rule.
We pause here to discuss the admittedly inconvenient fact that the CAAF
found that the search in Nieto—a search with a more robust factual predicate
than ours—failed the good faith test under both Hoffmann and Carter. In
Nieto the CAAF went to some lengths to discuss the deficiencies in the
probable cause determination. The court did not, however, explain why it did
not find that the agent in that case was acting in good faith reliance on the
magistrate’s authorization. Was the factual basis for the authorization so
poor that the agent could not have relied in good faith on the issuance of the
authorization? Should we conclude that the CAAF found that the factual
basis for probable cause was so weak that the agent could not have
reasonably believed that the magistrate had a substantial basis for finding
probable cause? The CAAF does not tell us, and we decline to rely on
speculation. Instead, we have applied the rule as interpreted by Carter,
mindful that the agent—not lawyers or commanders—is the proper subject of
our inquiry. In this case the agent took the information she had to the very
attorneys she should consult, then to the CO. Her actions in this regard were
reasonable, and she reasonably relied on the attorney’s legal advice and the
CO’s authorization.
As the CAAF recently recognized in Eppes, the exclusionary rule is
“drastic and socially costly” and “should only be applied where needed to
deter police from violations of constitutional and statutory protections.”65
Courts, therefore, limit its application “to situations in which this purpose is
thought most efficaciously served.”66 Here, excluding the evidence obtained
from the search of the appellant’s home would provide no deterrent effect on
64 Davis v. United States, 564 U.S. 229, 238 (2011) (citing Herring v. United
States, 555 U.S. 135, 144 (2009)).
65 Eppes, 77 M.J. at 349 (citations and internal quotation marks).
66 Davis, 564 U.S. at 237 (citations and internal quotation marks).
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police. The record does not demonstrate falsity or recklessness on the part of
Special Agent JJ leading up to the issuance of the authorization. And, “[o]nce
the warrant issues, there is literally nothing more the policeman can do in
seeking to comply with the law . . . [.]”67 We find that although the military
judge erred by finding that the CO had a substantial basis for his probable
cause determination, the evidence in question was nevertheless admissible
under the good faith exception.
3. Should the CAAF reconsider Carter?
The CAAF has recently reminded the service courts of criminal appeals
that “it is simply not for the [service courts] to act on the assumption that an
opinion of [the CAAF] has been implicitly overruled.”68 If we believe that a
later decision has called a precedent into question, our role is “to express that
viewpoint and to urge [the CAAF’s] reconsideration of [its] precedent[.]69 The
question of Carter’s continued application after Hoffmann is a close one. We
have concluded that we continue to be bound by Carter. Having heeded the
CAAF’s admonition to adhere to its precedent until that court overrules it, we
likewise accept the CAAF’s invitation to suggest that a questioned precedent
be revisited. We respectfully suggest that Carter should be reconsidered.
We make this suggestion for several reasons. In our view, Carter
represents an unwarranted departure from the rule’s plain language. We also
believe Carter misapprehends the Drafters’ Analysis and ignores the case law
the drafters relied on when they adapted the good faith exception to military
practice.
Our understanding of MIL. R. EVID. 311(c)(3) starts with the rule’s text.
Military courts “use well-established principles of statutory construction to
construe provisions in the Manual for Courts-Martial.”70 Statutory
construction begins—and often ends—with the plain language of a rule.71 The
plain language controls unless its use would lead to an absurd result.72
The relevant language of the rule is clear: the good faith exception applies
if “the individual issuing the authorization or warrant had a substantial
basis for determining the existence of probable cause[.]”73 The language does
67 Stone v. Powell, 428 U.S. 465, 498 (1976) (Burger, C.J., concurring).
68 United States v. Davis, 76 M.J. 224, 228 n.2 (C.A.A.F. 2017).
69 Id.
70 United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007).
71 See Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992).
72 Id.
73 MIL. R. EVID. 311(c)(3)(B).
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not provide for the exception’s application in cases where the issuing person
did not have a substantial basis as long as the police were unaware of the
deficiency. Nor is this an absurd result that requires judicial correction. As
the rule’s meaning is plain and the result is not absurd, this would normally
be the end of the analysis. But it is worth addressing the reasons Carter gives
for its re-write of the rule.
First, the Carter court suggested that its alteration of Rule 311(c)(3)(B)
was necessary because “[t]o do otherwise would effectively abolish the good
faith exception in military practice.”74 The Carter court reasoned that since
Gates required judges to review magistrates’ probable cause determinations
using the substantial basis test in the first place, the rule’s second
application of that standard was redundant, and served only to eviscerate the
good faith exception. The trial judge considering the good faith exception
would necessarily have already found that the probable cause determination
lacked a substantial basis, or else the court would not be considering the good
faith exception in the first place. If both the probable cause determination
and the good faith exception used the same substantial basis test, then no
search would ever qualify for the exception.75 One of the reasons the Carter
court recast MIL. R. EVID. 311(c)(3)(B), then, was to avoid this superfluous
reading of the rule.
Although the CAAF approach is consistent with “the canon against
interpreting any statutory provision in a manner that would render another
provision superfluous[,]”76 we do not believe that this canon of construction
represents a helpful approach to the rule’s text. First, the rule itself is
internally consistent. Nothing in any Military Rule of Evidence requires
military judges to use the substantial basis test as a standard of review for
assessing probable cause determinations. The CAAF’s case law,
implementing Gates, requires military judges to use this standard when
reviewing a probable cause determination.77 But the plain language of Rule
74 Carter, 54 M.J. at 421.
75 Id. (“Any search that failed the Gates test for reviewing probable cause
determinations (‘a ‘substantial basis for . . . concluding’ that probable cause existed’)
would also fail the test for good faith in Mil. R. Evid. 311(b)(3), because the second
prong (‘a substantial basis for determining the existence of probable cause’) would
not be satisfied. If we were to interpret the ‘substantial basis’ language in Mil. R.
Evid. 311(b)(3)(B) as an additional requirement beyond the requirements of Leon, the
good-faith exception would not be an exception at all, and the language would serve
no purpose.”).
76 See Bilski v. Kappos, 561 U.S. 593, 607-08 (2010).
77 See Rogers, 67 M.J. at 164-65.
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311(c)(3)(B) does not obviate—and is not obviated by—any other rule or part
of a rule.
Not only was the rule’s language not superfluous with any other rule of
evidence, it was not superfluous with the Court of Military Appeals’ case law
when it went into effect in 1986. The substantial basis test made only
sporadic appearances both in the service courts of appeals and the Court of
Military Appeals in pre-good faith rule cases.78 Even after 1983, when the
Supreme Court “reaffirm[ed]” the substantial basis test in the context of
civilian magistrates in Gates,79 the Court of Military Appeals did not
consistently use the substantial basis test to review probable cause
determinations until 1992.80 We conclude from this that the drafters would
not have understood their rule to operate in an environment where the
military judge had already asked the substantial basis question. The drafters
were familiar with Gates, but intended for the Gates substantial basis
question to be part of the new good faith test.
Carter’s second objection to a plain-language understanding of the rule is
that the Drafters’ Analysis of the rule indicates that the rule’s purpose is to
incorporate Leon’s good faith exception into court-martial practice.81 Since
Leon makes the good faith exception available in cases where the magistrate
78 See e.g. United States v. Walters, 48 C.M.R. 1, 3 (C.M.A. 1973) (“If there is a
substantial basis in the affidavit to support Colonel Maline's determination that such
probability existed, we will not overrule his judgment.”) (citations and internal
quotation marks omitted)); United States v. Bradley, 50 C.M.R. 608, 614 (N.C.M.R.
1975) (“[W]here a search for contraband or evidence of a crime is authorized by a
commanding officer, appellate courts will sustain his determination to authorize the
search so long as there was in the information presented to him a substantial basis
for him to conclude that contraband or evidence of a crime was probably present on
the person or at the place to be searched.”) (citations omitted)). But see e.g. United
States v. Hood, 7 M.J. 128, 129-30, (C.M.A. 1979); United States v. Gill, 48 C.M.R.
792, 794 (C.M.A. 1974) (de novo reviews of probable cause determination).
79 Gates, 462 U.S. at 237,
80 Compare United States v. Moore, 23 M.J. 295, 297-99 (C.M.A. 1987) and United
States v. Queen, 26 M.J. 136, 139 (C.M.A. 1988) (conducting apparent de novo review
of commander’s probable cause determination) with United States v. Figueroa, 35
M.J. 54, 56 (C.M.A. 1992) (applying substantial basis test to commander’s probable
cause determination); accord United States v. Thompson, 30 M.J. 577, 579 (A.C.M.R.
1990) (“The standard of review of the ‘substantial basis’ determination has not been
addressed before by us.”).
81 Carter, 54 M.J. at 420.
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lacked a substantial basis for finding probable cause, the rule must mean
that as well.82
We respectfully suggest two answers to this second objection. First, since
the language of the rule is plain, there is no need to resort to the Drafters’
Analysis to inquire into the President’s intent. In the words of Chief Justice
Marshall, “a law is the best expositor of itself[.]”83 And while the Drafters’
Analysis presents the intent of the drafting committee, it is not part of the
Manual for Courts-Martial. “[T]he Drafters’ Analysis, when it does not
corroborate the plain language of the rule, is of questionable precedential
weight.”84
The second (and longer) response is that even if we were to take the
Drafters’ Analysis as binding, the purported intent of the drafters is not so
irreconcilable with the plain language of the rule as to require that the rule
be judicially altered as it was in Carter. The relevant portion of the Drafters’
Analysis states: “[Rule 311(c)(3)] was added in 1986 to incorporate the ‘good
faith’ exception to the exclusionary rule based on United States v. Leon . . .
and Massachusetts v. Sheppard . . . [.]”85 The good faith exception is a judicial
creation, and Leon is the case that created it. (Sheppard, decided the same
day as Leon, does not add substantially to the doctrine announced in Leon).86
It is reasonable to accept that any subsequent codification of the exception—
even one that differs from Leon in some particular—is based on Leon. We
think it is fair to say that the plain-language understanding of the rule
endorsed by the CAAF in Hoffmann is based on—though not identical to—
Leon.
More compellingly, a closer look at the Drafters’ Analysis reveals the
drafters’ rationale for the rule as it is written. The analysis begins by stating
that Leon’s determination “that the deterrence basis of the exclusionary rule
does not apply to magistrates extends with equal force to search or seizure
authorizations issued by commanders who are neutral and detached . . . .”87
But not all commanders are neutral and detached. The analysis, and the case
law it cites, correctly notes that commanders “cannot be equated
constitutionally to magistrates. As a result, commanders’ authorizations may
be closely scrutinized for evidence of neutrality in deciding whether this
82 Id.
83 Pennington v. Coxe, 6 U.S. 33, 52, (1804).
84 United States v. Taylor, 64 M.J. 416, 422 (C.A.A.F. 2007) (Ryan, J., dissenting).
85 MCM, App. 22, at A22-20.
86 See generally Mass. v. Sheppard, 468 U.S. 981 (1984).
87 MCM, App. 22 at A22-20 (emphasis added).
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United States v. Perkins, No. 201700077
exception will apply.”88 In United States v. Stuckey,89 one of the cases the
drafters rely on for this proposition, the Court of Military Appeals drew the
magistrate-commander distinction even more sharply: commanders are not
similarly situated with Leon’s neutral magistrates, uninvolved in “the often
competitive enterprise of ferreting out crime.”90 Rather, “[a] military
commander has responsibilities for investigation and for law enforcement
that a magistrate does not possess.”91 Therefore, “the likelihood that a search
and seizure will withstand subsequent attack in court is—and should be—
greater when a judicial officer trained in the law has made the determination
of probable cause than when a commander does so.”92
Since the rule’s drafters and the cases they relied on acknowledge that
commanders are not magistrates and that in some instances they deserve
less deference, it would be surprising if the rule the drafters created for the
military were exactly the same as the one announced in Leon. One would
expect to find some scrutiny of the authorizing officer in the rule. And there
we find it: a search based on a commander’s erroneous probable cause
determination cannot qualify for the good faith exception if it was made
without even a substantial basis for the finding.
We find the plain language of the rule to be consistent with the Drafters’
Analysis. The good faith rule is based on Leon but tweaked to account for the
differences between commanders, who have substantial law enforcement
responsibilities, and Leon’s neutral and detached magistrates. These
differences had already been recognized by the Court of Military Appeals and
were taken into account by the rule’s drafters. The differences are reflected in
the second prong of the good faith test, which asks if there was even a
substantial basis supporting the authorizing officer’s erroneous probable
cause determination. If there was not, the exception does not apply. None of
this requires Carter’s drastic re-interpretation of the rule’s plain language.
Are we bending the Drafters’ Analysis to fit the plain language of the rule?
We don’t think so. But even if our construal of the Drafters’ Analysis is
wrong, we would still counsel adherence to the rule’s plain language.
We respectfully suggest that the CAAF resolve the tension between
Carter and Hoffmann in favor of Hoffmann and the plain language of MIL. R.
EVID. 311(c)(3).
88 Id. (emphasis added).
89 10 M.J. 347 (C.M.A. 1981).
90 Leon, 468 U.S. at 914.
91 Stuckey, 10 M.J. at 359.
92 Id. at 365.
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C. Judicial notice of the status of Marine Corps Air Station Yuma
Station Order P5510.8G as a lawful general order
This assignment of error concerns the appellant’s conviction for violating
Station Order P5510.8G, requiring all persons introducing firearms onto
Marine Corps Air Station Yuma to register them with the base provost
marshal. The appellant contends that the military judge erred by taking
judicial notice of the relevant order’s status as a lawful general order. We
disagree.
Before trial, the military judge announced his intention to take judicial
notice that the station order was a lawful general order applicable to the
appellant.93 The civilian defense counsel said that he had no objection.94 At
the end of the case, however, the civilian defense counsel told the military
judge he did not believe that the evidence supported a conclusion that the
order had been properly published. He explained his lack of objection to
judicial notice by telling the military judge that he had listened carefully to
the military judge’s description of the judicial notice and that the fact of the
order’s publication was not part of what the military judge had judicially
noticed.
A military judge may take judicial notice of a fact if it is generally known
universally, locally, or in the area pertinent to the event, or if it can be
accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.95 As an initial matter, we disagree with the
contention that Station Order P5510.8G had to have been published to
qualify as a general order. The Manual for Courts-Martial requires that
orders and regulations of the President, Secretary of Defense, Secretary of
Homeland Security, and service secretaries be published in order to qualify
as general orders or regulations. Orders and regulations of general court-
martial convening authorities such as the one who signed this order must be
“issued” in order to qualify as a general order or regulation.96 Having drawn
this distinction, we note that the purpose of publication and issuance are the
same: to provide those subject to the order with sufficient opportunity to
93 Record at 333.
94 Id. at 334.
95 MIL. R. EVID. 201(b).
96 See MCM, Part IV, ¶ 16c(1)(a).
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United States v. Perkins, No. 201700077
learn of it. Otherwise, service members do not have a fair opportunity to
conform their conduct to the order.97
Additionally, civilian defense counsel could not have agreed that the order
was a general order while contending that it had not been properly issued.
The Manual defines a general order as an order that has been issued by a
general court-martial convening authority.98 By agreeing that the order was a
general order, civilian defense counsel necessarily agreed that it had been
issued.
Civilian defense counsel arguably waived any objection to the military
judge taking judicial notice that the order was a lawful general order.99 But
because he may have been confused about what he was agreeing to when he
did not object, we will treat the failure to object as forfeiture and test for
plain error. The plain error standard is met when: (1) an error was
committed; (2) the error was plain, or clear, or obvious; and (3) the error
resulted in material prejudice to substantial rights.100 The plain error
doctrine is “to be used sparingly, solely in those circumstances in which a
miscarriage of justice would otherwise result.”101
The appellant argues that the military judge erred by taking judicial
notice because there was a reasonable dispute as to whether the order had
been published, and the military judge lowered the government’s burden of
proof by taking judicial notice. Assuming without deciding that there was a
reasonable dispute over whether the order was properly issued, we find that
any error was not plain or obvious. A general order is a proper subject of
judicial notice.102 The order is facially valid and includes a reference to a
distribution list. An order is entitled to a presumption of regularity if it
appears regular on its face.103 Accepting the order as a lawful general order
97 United States v. Tolkach, 14 M.J. 239, 242 (C.M.A. 1982) (“Obviously, a
commander cannot sign a regulation, put it in his desk drawer, and then expect his
subordinates to be presumed to have knowledge of it.”).
98 See MCM, Part IV, ¶ 16c(1)(a).
99 See United States v. Campos, 67 M.J. 330, 332-33 (C.A.A.F. 2009).
100 United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008). See also United
States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011) (admission of cover memorandum and
specimen custody document certification from drug lab violated Confrontation clause;
error was plain and obvious).
101 United States v. Causey, 37 M.J. 308, 311 (C.M.A. 1993) (citations and internal
quotation marks omitted).
102 See United States v. Wales, 31 M.J. 301, 309 (C.M.A. 1990).
103 United States v. Ayers, 54 M.J. 85, 91, (C.A.A.F. 2000).
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United States v. Perkins, No. 201700077
applicable to the accused at the time of the offense was not plain or obvious
error.
Nor do we find that the military judge’s decision to judicially notice the
nature of the order lowered the government’s burden of proof. The military
judge correctly instructed the members on the burden of proof and told the
members that they may, but need not, accept his judicial notice as adequate
proof. We have no reason to doubt that the members followed the military
judge’s instructions. This assignment of error is without merit.
D. Legal and factual sufficiency
The appellant argues that his conviction for failure to obey Station Order
P5510.8G is legally and factually insufficient. We disagree.
We review issues of legal and factual sufficiency de novo.104 The test for
legal sufficiency is whether, considering the evidence in the light most
favorable to the prosecution, a reasonable fact finder could have found all the
essential elements beyond a reasonable doubt.105 In weighing questions of
legal sufficiency, we draw every reasonable inference from the evidence in the
record in favor of the prosecution.106 The test for factual sufficiency is
whether, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, we are
ourselves convinced of the accused’s guilt beyond a reasonable doubt.107
In order to convict the appellant of failing to obey a lawful general order,
the government had to prove: (1) that there was in effect a certain lawful
general order; (2) that the accused had a duty to obey it; and (3) that the
accused violated or failed to obey the order.108
The government produced the order. Facially, it contained no
irregularities. It contained a reference to a distribution list and was
forwarded to the provost marshal, who maintained a copy of this order in his
binder and incorporated it into the base indoctrination brief to new arrivals.
The military judge took judicial notice of the order, its status as a lawful
general order, and its application to the appellant. The government presented
eyewitness testimony that the appellant possessed firearms at his on-base
104 Art. 66(c), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002) (citing United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)).
105 United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002).
106 See United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).
107 United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
108 MCM, Part IV, ¶ 16b(1)(a)-(c).
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residence and that at least four of them were not registered during the
charged time period.
A reasonable trier of fact could find on this evidence that the appellant
violated a lawful general order as charged. We have also considered the
evidence, and we are convinced of the appellant’s guilt beyond a reasonable
doubt. This assignment of error is without merit.
III. CONCLUSION
The findings and sentence are affirmed.
Senior Judge HUTCHISON concurs.
SAYEGH, Judge (concurring in part and dissenting in part):
I concur with the opinion of the court as to its resolution of Assignments
of Error II and III, the conclusion that United States v. Carter, 54 M.J. 414
(C.A.A.F. 2001), continues to be binding precedent that the court must follow
in this case, and with the majority’s suggestion that the Court of Appeals for
the Armed Forces (CAAF) reexamine Carter in favor of following the plain
language of MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 311(c)(3),
SUPPLEMENT TO MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
With respect to the court’s resolution of the good faith exception question, I
would find that the government did not establish that the good faith
exception applies, even under Carter’s more generous test for good faith.
The government has the burden of establishing the good faith exception
contained in MIL. R. EVID. 311(c)(3) by a preponderance of the evidence. See
MIL. R. EVID. 311(d)(5)(A). MIL. R. EVID. 311(c)(3) establishes three prongs
that must be met; one of which requires the individual who issues the search
authorization to have a substantial basis for determining the existence of
probable cause. Following the CAAF decision in Carter, when assessing for
good faith, we instead look at the authorization “through the eyes of a
reasonable law enforcement official executing the search authorization” to see
if she “had an objectively reasonable belief that the [CO] had a ‘substantial
basis’ for determining the existence of probable cause.” Carter, 54 M.J. at
422.
The agent claims she provided the commanding officer (CO) with all
known facts, but the limited record available to us does not establish with
any level of detail what information she passed.1 At trial, the agent admitted
her memory of the phone conversation she had with the CO was hindered by
1 Record at 12.
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United States v. Perkins, No. 201700077
the passage of time.2 The record contains no specific indication that the agent
informed the CO that MI was unable to confirm whether the videos ever
existed, or how the agent came to the conclusion that the videos would
“likely” be found in the appellant’s home.3 The majority considered it an
important factor that the agent had obtained and relied on legal advice of the
appropriate attorneys. However, the only evidence of this advice on the
record is through the agent testifying that she informed the CO that she
“consulted” two judge advocates.4 We are thus left to presume what the legal
advice to the agent was.
Indeed, the most reliable evidence of what information was passed to the
CO comes from the CO’s affidavit contained within Appellate Exhibit IV that
was specifically prepared by the government to present as evidence during
the suppression motion at trial. The affidavit suggests the agent provided
nothing more than a “bare bones”5 recitation of MI’s allegations, which in
turn the agent used to support her conclusion that the videos would likely be
found in the appellant’s home. Had Special Agent JJ conveyed the extent to
which MI’s allegations were uncorroborated, the CO would have been
unlikely to grant the authorization. I conclude, therefore, that this tends to
show that Special Agent JJ did not act in good faith when she briefed the CO.
I am not persuaded that the agent did not withhold information that would
have allowed the CO to make an independent decision based on the totality of
the circumstances. United States v. Monroe, 52 M.J. 326, 331 (C.A.A.F. 2000)
(citing Illinois v. Gates, 462 U.S. 213, 239 (1983)).
If the agent recklessly provided only selective detail in obtaining the
search authorization, this conduct is appropriately deterred by imposition of
the exclusionary rule. Based on the limited facts available to us, I would find
that the government has failed to establish by a preponderance of evidence
that the good faith exception applies. The military judge therefore abused his
discretion in denying the appellant’s motion to suppress.
I would find that the requirements of MIL R. EVID. 311(c)(3) were not met,
and I would set aside Additional Charge III and its sole specification and the
sentence and return the case to the Judge Advocate General for remand to an
appropriate convening authority with a rehearing authorized.
2 Id. at 24.
3 Appellate Exhibit IV at 7.
4 Record at 14.
5 Carter, 54 M.J. at 422.
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For the Court
R.H. TROIDL
Clerk of Court
26