EI INCUMBIT PROBATIO QUI DICIT.

CAAF Makes It Easier for Criminal Evidence to Be Taken in Unlawful Searches & Seizures

In the recent decision of United States v. Perkins, originating from the United States Marine Corps, the U.S. Court of Appeals for the Armed Forces (CAAF) has realigned how criminal evidence can and cannot be suppressed if it is collected due to an unlawful search or seizure of a suspect’s property. The decision has drawn immediate criticism due to the fact that it flies the opposite of a 2016 ruling in United States v. Hoffman concluded Mil. R. Evid. 311(c)(3) should be interpreted as it is written. The latest decision instead argues that a “substantial basis” as used in the statute is open to interpretation and a judge’s discretion based on the unique circumstances of the military criminal case in question.

Effectively, the U.S. v. Perkins decision regarding evidence suppression could allow authorities to search and seize the property of the accused without first establishing probable cause. The potential for Fourth Amendment violations may be increased due to this recent decision.

Details of U.S. v. Perkins That Led to the CAAF Decision

Sergeant Perkins pleads not guilty to conspiracy to commit larceny and violation of general order charges, but he was nevertheless convicted by general court-martial. The conviction for the larceny charge was essentially secured solely due to evidence of stolen property taken from his garage. The reasoning behind why investigators even knew to go to the garage, and whether or not they had the authority to enter it for a search, triggered the debate over how Mil. R. Evid. 311(c)(3) can be interpreted.

According to a woman who was in a relationship with Perkins, he had allegedly used his cellphone and other recording devices to record footage of them together in sexual activities but without her consent to record the scenes. She went to military investigators with this claim, but also noted specifically that she had not actually seen any of the footage or pictures she feared he had taken. While Perkins was away, Perkins’ commanding officer approved the search of his home for recording devices. No such devices were actually found, but the stolen military property was located in his garage during the search, resulting in the charges brought against him, which eventually led to the conviction.

Perkins attempted to suppress the evidence during his trial on the grounds of the search was conducted on unclear, vague grounds. Typically, search authorizations must be specific in what they are looking for and where. After a military judge denied his motion of suppression, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) actually agreed that there was a significant lack of legal grounds to conduct the search based on the loose claims of the woman who accused him of sexual extortion.

Bizarrely, it was actually said in the CCA decision that the woman’s allegations were insufficient and “did not provide probable cause” to search Perkin’s home. Yet, contrarily, it still affirmed that the evidence should not be suppressed.

What is the Good Faith Exception in Probable Cause Rules?

In the Uniform Code of Military Justice (UCMJ), there are actually rules that allow the probable cause to be waived, or its demand is lessened, based on a “good faith exception.” The exception is similar to that which can be found in civil criminal laws, which state an officer or investigator can conduct a search and seizure if they believe they had the legal right to conduct it, even if they did not. That is to say, a military investigator who obtains a shoddy warrant can still conduct a search and seizure if they reasonably did not understand that the warrant was insufficient. Furthermore, any criminal evidence collected due to taking action on a flawed warrant does not have to be suppressed since it was taken in “good faith.”

Mil. R. Evid. 311(c)(3)(B) has been interpreted to put the burden of knowing probable cause on the military judge approving the search authorization, not on the actual investigators acting on that authorization, which is akin to a search warrant in civilian criminal courts. As long as the military judge thought the authorization was validated through accusations, the investigators effectively get free rein to act on that search authorization as they see fit. If there is an overstepping of the Fourth Amendment in their search and seizure of private property, then they can simply fall back on the good faith exemption, claiming they thought they had been preapproved by the military judge to conduct such a search, and that they had assumed that military judge acted in good faith and clear understanding of the law as well.

Potential Lasting Effects of the U.S. v. Perkins Decision

With the good faith exemption protected from scrutiny by allowing it to be interpreted on a case-by-case basis, rather than taking it by the letter as it is written, provides ample opportunity for searches and seizures to be conducted without a clear and probable cause being first established. Military service members accused of most any crime could find themselves and their on-base residences searched thoroughly, even while they are away. After all, Perkins was charged and eventually convicted of larceny based on the search actions that originated from a sexual exploitation accusation.

If you are a military service member who has been accused of a serious military crime, or if you will soon face court-martial, call (888) 616-6177 to connect with Attorney Joseph Jordan and his team. For years, Attorney Jordan has been the go-to name in military criminal defense representation for military members of all branches of the Armed Forces and in bases around the globe. He has the experience, know-how, resources, and reputation to protect you from all types of accusations, ranging from rape as described in Article 120 to drug crimes and manslaughter. Take no chances on your good name and military career – let a trusted advocate stand on your behalf. Contact his firm now to arrange a consultation.