When the Court of Appeals for the Armed Forces (CAAF) decided U.S. v. Hoffman in 2015, it signaled a potential shift in the application of the good-faith doctrine.
In Hoffman, base authorities arrested Appellant, suspecting him of driving around post and soliciting young boys for sex acts. During the arrest, Appellant consented to a search of his barracks room. After he saw the authorities seized his digital media, Appellant had a change of heart, and revoked his consent. The authorities retained the property already obtained, but terminated any further search. While Appellant formally requested the return of his property, the government refused. Four months later, they obtained a search authorization for the digital media, under the assumption that someone who solicits children from sex also possesses child porn.
The government's suspicion proved correct, as Appellant's digital media contained child pornography. Appellant was convicted, among other things, for possession of that child pornography. Hoffman contains an interesting discussion of consent, revocation, and inevitable discovery. But for the purposes of these posts on the good-faith exception, I want to focus on CAAF's discussion of probable cause.
CAAF found there was no probable cause to seize and search the digital media. CAAF held suspicion someone was sexually interested in children was an insufficient basis to seize property that may contain child porn. CAAF found the evidence should have been suppressed, then overturned all of Appellant's convictions, since the prosecutor had argued the evidence of child pornography proved Appellant's general character.
CAAF considered the good-faith exception, but found it did not apply. As CAAF explained, the good-faith exception to the exclusionary rule is meant to prevent all 4th Amendment violations from resulting in the suppression of evidence. Under the UCMJ, the president has promulgated the good-faith exception as a military rule of evidence (MRE). CAAF looked at the language in the applicable MRE, which requires three conditions: (1) the search or seizure authorization must be ordered by a person with authority to do so; (2) the person issuing the authorization must have had a substantial basis for determining probable cause; and (3) the officials seeking and executing the search or seizure reasonably and with good faith relied on the issuance of the authorization or warrant.
CAAF found the second clause not satisfied, because the battalion commander did not have a substantial basis to determine probable cause. There was just insufficient probable cause in this case. Such an interpretation of the good-faith exception seemed required from the language of the MRE, even though such an interpretation would be more restrictive than the Constitutional one. That is, based on the language of the MRE in the UCMJ, a lack of probable cause will mean the good-faith exception could never be triggered, even though that may undermine the purpose of the doctrine. Such an interpretation also appeared at odds with CAAF's previous precedent in US v. Carter, 54 MJ 414 (CAAF 2001).
In subsequent posts, I will discuss how CAAF reversed US v. Hoffman just a few short years later, and what that means for litigants.