Petition for Writ of Certiorari — Jaelen M. Johnson, Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

__________

JAELEN M. JOHNSON,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

JOSHUA L. LOPES

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

joshua.lopes@us.af.mil

Counsel for Petitioner

i

QUESTION PRESENTED

In addition to warrants issued by a judicial officer,

the Military Rules of Evidence (Mil. R. Evid.) allow a

military commander to authorize searches of persons

and property. The commanders granting these search

authorizations are not required to have legal training

or experience and, instead, receive advice from a

prosecutor on whether to approve the search.

The question presented is:

Does the Leon good-faith exception to the

exclusionary rule apply when law enforcement relies

on a commander’s probable cause determination if

that commander has no legal training or education

and received advice from the same prosecutor who

advised law enforcement?

ii

PARTIES TO THE PROCEEDING

Petitioner is Senior Airman Jaelen M. Johnson.

Respondent is the United States.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

The following is a list of all proceedings related to

this case within the meaning of Rule 14.1(b)(iii):

•

United States v. Johnson, No. 25-0202/AF, U.S.

Court of Appeals for the Armed Forces

(judgment entered May 26, 2026).

•

United States v. Johnson, No. 40537, Air Force

Court of Criminal Appeals (judgment entered

May 2, 2025).

iii

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. I

PARTIES TO THE PROCEEDING ...................................... II

CORPORATE DISCLOSURE STATEMENT.......................... II

RELATED PROCEEDINGS ............................................... II

TABLE OF CONTENTS ................................................... III

TABLE OF AUTHORITIES ............................................... IV

INTRODUCTION ............................................................. 1

OPINIONS BELOW ......................................................... 2

JURISDICTION ............................................................... 2

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED ................................................. 2

REASONS FOR GRANTING THE PETITION ....................... 8

CONCLUSION .............................................................. 13

APPENDIX

C.A.A.F. Opinion, United States v. Johnson,

No. 25-0202 (May 26, 2026) ................................ 1a

Air Force CCA Opinion, United States v.

Johnson, No. ACM 40537 (May 2, 2025) .......... 28a

iv

TABLE OF AUTHORITIES

Cases

Aguilar v. Texas, 378 U.S. 108 (1964). ..................... 12

Illinois v. Gates, 462 U.S. 213 (1983) ....................... 12

Lo-Ji Sales, Inc. v. New York, 442 U.S.

319 (1979) ................................................................ 9

Malley v. Briggs, 475 U.S. 335 (1986) ...................... 10

Messerschmidt v. Millender, 565 U.S.

535 (2012) .......................................................... 8, 10

United States v. Hueston, 90 F.4th 897

(7th Cir. 2024) ....................................................... 11

United States v. Johnson, 78 F.3d 1258

(8th Cir. 1996) ....................................................... 11

United States v. Lattin, 83 M.J. 192

(C.A.A.F. 2023) ...................................................... 12

United States v. Leon, 468 U.S. 897

(1984) ....................................................... 8, 9, 10, 12

United States v. McLamb, 880 F.3d 685

(4th Cir. 2018) ....................................................... 11

United States v. Mendonsa, 989 F.2d 366

(9th Cir. 1992) ....................................................... 11

United States v. Perkins, 78 M.J. 381

(C.A.A.F. 2019) ...................................................... 12

Statutes

10 U.S.C. § 866 ............................................................ 2

10 U.S.C. § 867 .............................................................. 2

28 U.S.C. § 1259(3) ........................................................ 2

v

Constitutional Provisions

U.S. Const. amend. IV ................................................ 2

Rules and Other Authorities

Mil. R. Evid. 311 ................................................... 3, 10

Mil. R. Evid. 315 ......................................................... 4

1

INTRODUCTION

In military justice practice, a non-magistrate

military commander has the authority to make a

probable cause determination and authorize searches

of persons and property. In most cases, such as this

case, a prosecutor advises the commander on whether

they should approve or deny the search authorization

request, even if that same prosecutor helped law

enforcement draft the request.

In this case, law enforcement sought to search

Petitioner’s two iPhones for virtually all content over

a seven-month period. A prosecutor helped law

enforcement draft the request and accompanying

affidavit. When law enforcement submitted the

request and accompanying affidavit to Petitioner’s

commander, that same prosecutor who helped draft

the search authorization advised the commander on

whether to approve or deny the request. The

commander authorized the search even though law

enforcement’s affidavit provided no explanation for

the search’s expansive date range or content. Later,

the prosecutor who advised law enforcement and the

commander admitted under oath that there was no

reason to believe Petitioner’s iPhones were involved in

any offense being investigated.

While searching all the messages, pictures, and

videos on Petitioner’s iPhone, dating back more than

seven months prior to Petitioner’s arrest, law

enforcement discovered incriminating evidence of

unrelated and previously unknown offenses. Over

Petitioner’s objection, this evidence was admitted, at

trial, and Petitioner was convicted.

The Air Force Court of Criminal Appeals and the

Court of Appeals for the Armed Forces held the good-

2

faith exception applied to the search and affirmed

Petitioner’s convictions that relied on the fruits of the

search.

OPINIONS BELOW

The opinion of the Air Force Court of Criminal

Appeals (Air Force Court) is unreported. It is available

at 2025 CCA LEXIS 193, 2025 WL 1276579, and is

reproduced at pages 28a–84a. The CAAF’s opinion is

pending publication in West’s Military Justice

Reporter. It is available at 2026 CAAF LEXIS 464 and

reproduced at pages 1a–27a.

JURISDICTION

The Air Force Court had jurisdiction over this

matter pursuant to Article 66, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 866. The CAAF

had jurisdiction pursuant to Article 67, UMCJ,

10 U.S.C. § 867. The CAAF entered its judgment on

May 26, 2026. This Court’s jurisdiction rests on 28

U.S.C. § 1259(3).

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED

The Fourth Amendment provides: “The right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.”

In relevant part, Mil. R. Evid. 311, Evidence

obtained from unlawful searches and seizures,

provides:

3

(a) General rule. Evidence obtained as a result

of an unlawful search or seizure made by a

person acting in a governmental capacity is

inadmissible against the accused if:

(1) the accused makes a timely motion to

suppress or an objection to the evidence

under this rule;

(2) the accused had a reasonable

expectation of privacy in the person, place,

or property searched; the accused had a

legitimate interest in the property or

evidence seized when challenging a seizure;

or the accused would otherwise have

grounds to object to the search or seizure

under the Constitution of the United States

as applied to members of the Armed Forces;

and

(3) exclusion of the evidence results in

appreciable deterrence of future unlawful

searches or seizures and the benefits of

such deterrence outweigh the costs to the

justice system.

....

(c) Exceptions.

....

(3) Good Faith Exception 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

4

competent to issue the authorization

under Mil. R. Evid. 315(d)

....

(B)

the

individual

issuing

the

authorization or warrant had a

substantial basis for determining the

existence of probable cause or the

officials seeking and executing the

authorization or warrant reasonably and

with good faith believed that 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.

In relevant part, Mil. R. Evid. 315, Probable cause

searches, provides:

(d) Who May Authorize.

....

(1) Commander. A commander . . . having

control over persons subject to military law

or the law of war . . . .

STATEMENT OF THE CASE

1. Petitioner was arrested while possessing

two iPhones.

On August 12, 2022, law enforcement responded to

a noise complaint at the temporary lodging facility at

5

Aviano Air Base, Italy. Trial Tr. 412. Upon arrival, the

officers found D.F., an Air Force Office of Special

Investigations (AFOSI) agent, pinning Petitioner to

the ground. Id. at 429. D.F. said that he woke up when

he felt a light graze on his buttocks and a touch on his

feet while he was sleeping. Pet. 31a–32a. When he

awoke, he saw Petitioner on the ground near the foot

of his bed. Id. D.F. then jumped on Petitioner and

began punching him. Id.

The officers arrested Petitioner and searched his

person, finding an Apple iPhone 7 in his pants pocket.

Pet. at 33a. During a search of D.F.’s room, the officers

found an Apple iPhone 13 Max that also belonged to

Petitioner on the floor. Id.

2. Petitioner’s Commander authorized an

expansive search of his iPhones.

After Petitioner’s arrest, AFOSI submitted a

request to search Petitioner’s iPhones for “media

produced and all messages (iMessage, Short Message

Service (SMS), Multimedia Message Service (MMS),

social media, and e-mail) sent and received between

29 Dec 21 and 12 Aug 22.” Pet 5a. AFOSI prepared a

written affidavit to support the search authorization

request. Id. The affidavit provided no justification for

the date range of the search. Pet. 48a. The affidavit

provided no nexus to the media or messages contained

within Petitioner’s iPhones. Pet. 5a.

AFOSI submitted the search authorization request

and written affidavit to Colonel J.F. Pet. 4a–6a.

AFOSI also verbally consulted with Colonel J.F. Id.

Colonel J.F. was not a judge, lawyer, or magistrate.

Pet. 4a. He was Petitioner’s commander. Id.

Colonel J.F. had never reviewed a search

authorization request or made a probable cause

6

determination for a search before this case. Pet. 4a.

n3. His only training relating to probable cause was

from a portion of a PowerPoint presentation given to

new commanders describing various duties and

functions. Id.

During the meeting between AFOSI and

Colonel J.F., AFOSI orally supplemented its written

affidavit by telling Colonel J.F. about an incident

report from Petitioner’s previous duty station in

December 2021. Pet. 6a–7a. The report involved a

witness returning home and finding a black male

dressed in black clothing in his room. Id. The report

never implicated Petitioner and did not mention the

presence or use of a cellphone. Nonetheless, AFOSI

believed Petitioner could have been involved because

Petitioner is also a black male and wore black clothing

when he was arrested in August 2022. AFOSI did not

explain why Petitioner’s iPhones were relevant to the

December 2021 incident.

When AFOSI prepared the search authorization

request, the agents received advice from a prosecutor,

Captain E.M. Captain E.M. was also present during

the meeting between AFOSI and Colonel J.F. Pet. 4a,

6a, 38a. Based on Captain E.M.’s advice, Colonel J.F.

determined there was probable cause to search

Petitioner’s iPhones and signed AFOSI’s search

authorization request.

At trial, Captain E.M. admitted under oath that

there was no reason to believe that Petitioner’s phones

were used in the commission of any offense when the

search authorization was approved. Trial Tr. 79.

Colonel J.F. also testified that he granted the request

because Petitioner possessed two phones when he was

arrested and disregarded the information he was

7

verbally told by AFOSI. Trial Tr. 159–60. Colonel J.F.

did not explain why he believed probable cause existed

dating back to December 29, 2021, and relied on the

mere fact that people ordinarily do not possess two

phones. Id.

AFOSI searched Appellant’s iPhones and found

several photographs and videos of feet. Pet. 7a.

Additionally, AFOSI found videos depicting a nude

male showering. Id. AFOSI was able to identify and

interview the male in the video, and he confirmed he

did not consent to being recorded while showering.

Pet. 31a.

3. Petitioner was convicted of offenses that

relied on evidence from his cellphones.

Petitioner was charged with abusive sexual

contact, assault consummated by a battery, unlawful

entry, and indecent recording. Pet. 2a. Prior to trial,

Petitioner moved to suppress all evidence obtained

during the searches of his iPhones. Id. Petitioner

argued the searches violated the Fourth Amendment

because there was no probable cause for the searches,

the good-faith exception did not apply, and the

exclusionary rule weighed in favor of excluding the

fruits of the illegal search. Pet. 8a–10a. The trial judge

rejected these arguments, ruling that there was

probable cause and, even if there was no probable

cause, the good-faith exception applied. Id.

At trial, the Government introduced the video

obtained from Petitioner’s iPhones of the nude male

showering. Pet. 66a–68a. The Government also

introduced pictures and videos of feet obtained from

Petitioner’s iPhones to show his motive and intent to

commit assault consummated by a battery. Id. The

trial judge did not allow these pictures and videos to

8

be considered for the abusive sexual contact charge.

Id. Petitioner was found guilty of assault

consummated by a battery, unlawful entry, and

indecent recording. Petitioner was found not guilty of

abusive sexual contact. Pet. 2a.

4. Military appellate courts relied on the

good-faith exception to affirm Petitioner’s

convictions.

The Air Force Court affirmed Petitioner’s

convictions. Pet. 28a–84a. The court only addressed

the good faith exception and concluded AFOSI had

objectively reasonable belief that Colonel J.F. had a

substantial basis for finding probable cause. Pet. 47a–

51a. “Most significant” to this conclusion is that

Captain E.M. advised there was probable cause. Pet.

48a. The CAAF similarly affirmed the Air Force

Court’s decision by relying on the good faith exception,

but the dissenting opinion highlighted that the

affidavit supporting probable cause was facially

deficient and that Colonel J.F. abdicated his judicial

role when evaluating probable cause. Pet 21a–27a.

REASONS FOR GRANTING THE PETITION

I. The military justice system has departed

from the safeguards this Court requires for

the good-faith exception to apply.

This Court has long adhered to the principle that the

Fourth Amendment’s exclusionary rule should not bar

the use of evidence obtained by officers acting in

reasonable reliance on a search warrant, even when

the search warrant was unsupported by probable

cause. United States v. Leon, 468 U.S. 897, 922 (1984).

But this Court has also made clear that “the threshold

for establishing this exception is a high one.”

Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).

9

Military courts have failed to abide by this Court’s

requirements for the good-faith exception to be a “high

threshold.” Id. Instead, the military justice system

eliminated the safeguard of a having a judge,

magistrate, or comparable legal professional make the

probable cause determination and eliminated the

neutral quality of the probable cause review by

permitting the same prosecutor who advised law

enforcement to advise the inexperienced commander.

Under this system, the risk that servicemembers will

be subjected to searches unsupported by probable

cause is heightened and current military practice has

devolved to one where probable cause does not matter.

As Chief Judge Ohlson recognized in his dissenting

opinion, this case again “presented . . . a classic and

straightforward

example

of

a

blatantly

unconstitutional fishing expedition” and the “majority

fails to hold [AF]OSI accountable for perpetuating

another unconstitutional search that violated the

Fourth Amendment rights of a member of the United

States Air Force.” Pet. 22a–23a. This case presents an

opportunity to re-vector military justice practice to

ensure

the

Fourth

Amendment

rights

of

servicemembers are protected.

A. The military justice system applies the

good-faith exception to law enforcement’s

reliance on a commander’s probable cause

determination even when the commander

has no legal background or training.

When this Court established the good-faith

exception to the exclusionary rule, the lynchpin of the

exception was the safeguard provided by the neutral

and detached magistrate. Leon, 468 U.S. 914–17; LoJi Sales, Inc. v. New York, 442 U.S. 319, 326–27 (1979)

10

(the magistrate must act as a judicial officer rather

than “an adjunct law enforcement officer”). As this

Court explained, “It is a sound presumption that the

magistrate is more qualified than the police officer to

make a probable cause determination . . . .” Malley v.

Briggs, 475 U.S. 335, 346 n.9 (1986) (internal

quotation marks and citation omitted); see also

Messerschmidt, 565 U.S. at 547–48 (quoting Leon, 468

U.S. at 923) (“In the ordinary case, an officer cannot

be expected to question the magistrate’s probable

cause determination . . . .”). This safeguard is absent

from search authorizations issued by military

commanders even though military courts are

supposed to construe Mil. R. Evid. 311(c)(3) in

accordance with Leon. Pet. 14a.

There is no requirement in the military rules of

evidence or in military jurisprudence for the

commander making a probable cause determination

to have legal education or training. In this case, the

only training Colonel J.F. received was from a

PowerPoint presentation at some point when he

became a commander, and he had never made a

probable cause determination before this case. Pet. 4a,

n.3. Predictably, these commanders often err and

authorize searches that lack probable cause and

violate

the

Fourth

Amendment

rights

of

servicemembers. Despite commanders’ lack of legal

training or expertise, military courts apply the goodfaith exception to unlawful searches when law

enforcement relies on a commander’s authorization

just as civilian courts apply the exception when

officers rely on a judge’s or magistrate’s probable

cause determination. See e.g. Pet. 11a–12a

(substituting the term commander in lieu of

magistrate when discussing the good-faith exception);

11

see also Mil. R. Evid. 311(c)(3)(A) (extending the goodfaith exception to searches authorized by

commanders). In doing so, military courts ignore a

critical component of the good-faith exception—that

police are relying on the decision of a judicial officer

who is more qualified than they are.

This case presents an opportunity for this Court to

clarify how and when military courts may apply the

good-faith exception to searches that lack probable

cause. This Court’s decision would have immediate

impact not just in appellate practice but in nearly all

criminal investigations conducted by military

authorities.

B. The military justice system eliminated the

neutral and detached magistrate and

replaced it with a commander who

receives advice from the same prosecutor

who advised law enforcement.

Civilian courts have routinely considered whether

officers consulted with an attorney prior to seeking a

warrant when determining whether their reliance on

the warrant was objectively reasonable. United States

v. Hueston, 90 F.4th 897, 903 (7th Cir. 2024); United

States v. McLamb, 880 F.3d 685, 691 (4th Cir. 2018);

United States v. Johnson, 78 F.3d 1258, 1264 (8th Cir.

1996); United States v. Mendonsa, 989 F.2d 366, 369–

70 (9th Cir. 1992). But the military justice system

departs from civilian practice in the attorney’s

continued involvement after assisting the police.

In military justice practice, investigators routinely

seek the advice of prosecutors when drafting search

authorization requests. See e.g. Pet. 50a. (law

enforcement’s reliance on an attorney’s advice is “most

significant” when evaluating the good-faith

12

exception.) But after police consult with the attorney,

that same attorney then accompanies the officer

submitting the search authorization to a meeting with

the commander and advises the commander on

whether to approve or deny the search. See e.g. United

States v. Lattin, 83 M.J. 192, 202 n.2 (C.A.A.F. 2023)

(the same prosecutor who reviewed the search

authorization and provided legal feedback to law

enforcement later advised the commander making the

probable cause determination); United States v.

Perkins, 78 M.J. 381, 384 (C.A.A.F. 2019) (the special

agent sought legal advice from the base commander’s

staff judge advocate before submitting the search

authorization request, and the same staff judge

advocate participated in the meeting between the

commander and law enforcement). Then, when the

search lacks probable cause and is challenged at trial,

military courts apply the good-faith exception and

evaluate whether the commander was neutral and

detached, without considering whether the prosecutor

advising them was also neutral and detached.

This intermingling is in stark contrast with

civilian practice and undermines the basic principle

this Court relied on when creating the good-faith

exception: that the judicial officer making the

probable cause determination is neutral and

detached. Leon, 468 U.S. 913–17; Illinois v. Gates, 462

U.S. 213, 240 (1983); Aguilar v. Texas, 378 U.S. 108,

111 (1964) (overruled on other grounds). This Court’s

decision in this case would have far-reaching impact

throughout military justice practice and would ensure

that, if commanders continue to issue search

authorizations, they will do so as neutral and

detached review authorities without becoming an arm

of the prosecution.

13

CONCLUSION

When this Court created the good-faith exception

it intended to balance the safeguards against

unconstitutional searches with the costs of

suppressing evidence obtained by officers reasonably

relying on a warrant issued by a detached and neutral

magistrate. The exception’s current application in the

military has eliminated the safeguards this Court

intended to impose. Law enforcement’s reliance on a

military commander with no legal training or

experience is a far-cry from reliance on a warrant

issued by a magistrate or judge. Allowing a prosecutor

who is actively aiding law enforcement to

simultaneously advise that inexperienced commander

vitiates the most basic requirement of fairness and

neutrality. Petitioner respectfully requests this Court

grant his petition for a writ of certiorari.

Respectfully submitted,

JOSHUA L. LOPES

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

Joshua.lopes@us.af.mil

Counsel for Petitioner