The Court of Appeals for the Armed Forces (CAAF), decided U.S. v. White, on November 9, 2020. In White, the military judge suppressed evidence of child pornography, finding no probable cause. The military judge also found the good-faith exception did not apply. The United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) agreed there was no probable cause, but overturned the military judge, finding the good-faith exception did apply. CAAF reversed the NMCCA and upheld the military judge's original ruling, resulting in the suppression of the digital evidence against Appellant.
For this post, I want to focus on the good-faith exception discussion. In military justice, the good-faith exception to the exclusionary rule is codified in Military Rule of Evidence (MRE) 311(c)(3). To apply the good-faith exception, all three conditions in MRE 311(c)(3) must be satisfied: (A) the search or seizure authorization must be ordered by a person with authority to do so; (B) the person issuing the authorization must have had a substantial basis for determining probable cause; and (C) the officials seeking and executing the search or seizure reasonably and with good faith relied on the issuance of the authorization or warrant.
White was decided on MRE 313(c)(3)(B), whether there a substantial basis for determining probable cause. CAAF concluded since there was so little probable cause to go on, there could not be a substantial basis of probable cause to make for good-faith. While this may appear to be circular, and it is, this conclusion is a straight forward application of the text in MRE 313. So a layman might think of good-faith as the subjective intent of the law enforcement official, or of the commander who issues the authorization, that isn't how good-faith is necessarily determined in military justice.
CAAF clarified subjective intent may be a factor in some cases. They wrote that the special agent took many steps trying to comply with the law, but those steps were insufficient to save this search. One can read White and see there may be ways the government could have saved their case, even with the same level of probable cause. Perhaps if the government called the staff judge advocate (SJA) to testify about what he advised the commander, then there would have been good-faith reliance on attorney advice here. But those weren't these facts, and the case was decided on a total dearth of probable cause.
I don't want to explain the insufficient probable cause in White. Instead, I write this post because the good-faith exception in military justice is a hobby-horse of mine. I hope to have a series of posts in the near future exploring how CAAF has applied the doctrine, as well as a comparison of CAAF's application to civilian courts'. Based on my limited experience and faulty memory, CAAF takes the better approach between the two, in that it hasn't made the good-faith exception a loophole around the exclusionary rule. So time-permitting, I will test that theory here, as I reread some old cases, and check out some new ones.