Petition for Writ of Certiorari — Lopez v. United States

Supreme Court, U.S.

rtsuis p

‘+ Qal117 pec 9 1994

NOOFFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1995

STAFF SERGEANT FRANK J. LOPEZ, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

JOSEPH L. HEIMANN

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel

Counsel for the Petitioner

AtR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

December 1994

QUESTION PRESENTED

Does Military Rule of Evidence 311(b)(3) violate the

Fourth Amendment to the Constitution in its application

of the “Good Faith” exception to searches authorized by

military commanders.

FABLE OF

Opinions below ............

PND on 4c kc ae eeeus

Statutory Provisions Involved

Statement of the Case .......

Reasons for Granting the Writ

| Perr errs

Re Te kc soar eee ree

Perr

CONTENTS

TABLE OF AUTHORITIES

SUPREME COURT CASES: Page

United States v. Leon, 468 U.S. 897 (1984) ....... 4,6

Burns v. Wilson, 346 U.S. 137 (1953) ........... 5

MILITARY CASES:

United States v. Lopez, 35 M.J. 35 (C.M.A.

ena a ga Wak os uaa on tho 6 ORs SS

United States v. Lopez, 32 M.J. 924 (A.F.C.C.A.

re en tek or as os a oes 0s 2

United States v. Lopez, unpublished ACM 28069

(f rev) (A.F.C.C.A. 9 November 1993) ........ 1,4

United States v. Chapple, 36 M.J. 410 (C.M.A.

Re ra ee ie ee tile sade bed 5

United States v. Stuckey, 10 M.J. 347 (C.M.A.

ee Leek eavacecs ones 6

CONSTITUTIONAL PROVISIONS:

EE Ee Y

MILITARY RULES OF EVIDENCE:

ee y a

I gc ence cvicvcesececs 2,3

MISCELLANEOUS:

Vienna and Chema, United States v. Leon: Good

Faith and the Military Commander, 25 A.F.L.

ee a ain sd as cde eb es 5

Fountain, The “Good Faith” Exception to the

Commanders’ Search Authorization: An Unwar-

ranted Exception to a Warrantless Search, The

Army Lawyer, August 1988, 29 .............. 5

Stevens, Examining the “Good Faith” Exception to

the Exclusionary Rule ard Its Application to

Commanders’ Search Authorizations, The Army

dp uwieueweveseee ees 5

In the Supreme Court of the United States

OCTOBER TERM, 1995

No.

STAFF SERGEANT FRANK J. Lopez, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

PETITION FOR WRIT OF CERTIORARI

The petitioner, Staff Sergeant Frank J. Lopez, respect-

fully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals

for the Armed Forces entered in his case on 7 September

1994.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at 35 M.J. 35

(1992), is located at Appendix A. The decisions of the

United States Air Force Court of Criminal Appeals, are

reported at 32 M.J. 924 (A.F.C.C.A. 1991), and unpub-

lished ACM 28069 (f rev) (A.F.C.M.R. 9 November

1993), are located at Appendix B.

(1)

2

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on 7 Sept 1994. The jurisdiction of

this Court is invoked under 28 U.S.C.A. § 1259(3) (Supp.

1993) and 10 U.S.C.A. § 867(a) (Supp. 1993).

CONSTITUTIONAL AND EXECUTIVE ORDER

PROVISIONS INVOLVED

Constitutional Provision: The Fourth Amendment of

the Constitution of the United States provides:

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

Executive Order: Military Rules of Evidence, Rule

315(d)(1) and Rule 311(b)(3).

Rule 311(b)(3) provides that:

Evidence that was obtained as a result of an un-

lawful search or seizure may be used if: (A) The

search or seizure resulted from an authorization

to search, seize, or apprehend issued by an indi-

vidual 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 authori-

zation Or warrant had a substantial basis for

determining the existence of probable cause; and

(C) The officials seeking and executing the autho-

rization Or warrant reasonably and with good

faith relied on the issuance of the authorizations

or warrant. Good faith shall be determined on an

objective standard.

3

The relevant portion of Rule 315(d)(1) provides “authori-

zation to search pursuant to this rule may be granted by an

impartial individual in the following categories: (1) Com-

mander. Acommander . . . who has control over the place

where the property or person to be searched is situated or

found... .”

STATEMENT OF THE CASE

On 12-13 September 1989, the appellant was tried by a

general court-martial at Torrejon AB, Spain. Pursuant to

a conditional plea agreement, to preserve the search and

seizure issue, the appellant was found guilty of violating a

United States Air Forces in Europe regulation for the

theft, use, and possession of more than one ration card.

He was sentenced to be discharged from the Air Force

with a Bad Conduct Discharge and reduction to the rank

of Airman Basic.

Prior to entering his pleas, the defense moved to sup-

press the three rations cards seized from the appellant’s

room on I1 May 1989 as fruits of an illegal search. The

basis of the motion was the absence of probable cause to

search and the absence of any valid consent to search. The

trial judge found that the search was not based upon prob-

able cause and that no valid consent to search existed. He

ruled; however, that the evidence was admissible because

the warrant was executed in “good faith” and thus admissi-

ble under Military Rule of Evidence (M.R.E.) 311(b)(3)(c).

The military judge further found that the “good faith” ex-

ception did apply to a search authorization issued by the

unit commander.

A majority at the Air Force Court of Criminal Appeals

(AFCCA) agreed that the “military judge correctly decided

that probable cause was lacking.” United States v. Lopez,

32 M.J. 924 (A.F.C.C.A. 1991) at 929. The AFCCA ac-

4

knowledged that Military Rule of Evidence 311(b)(3)

adopted the “good faith” exception of United States v.

Leon, 468 U.S. 897 (1984) for application to the Military.

The majority however; opined that because “[c]ommanders

are complementary members of the law enforcement team”

the rule’s application should be limited to those cases where

the “. . . government can show the requisite level of detach-

ment by a particular commander. . . .” Lopez, 32 M.J. at

930. The court went on to find that to apply the “good

faith” exception to this case would completely “eviscerate

the Fourth Amendment safeguards” /d. at 931 and that the

exception should be limited to searches authorized by the

commander when the government can meet “a difficult

burden to show that a commander has the requisite degree

of impartiality.” /d. at 931.

The Court of Appeals for the Armed Forces reversed the

lower court’s decision concluding that the “good faith” ex-

ception is applicable to the search authorized by the com-

mander, Major Harrison. The court concluded that the

commander, “. .. was an impartial authorizing official:

there was substantial basis for finding probable cause; and

the authorization was reasonably relied upon by executing

officials.” U.S. v. Lopez, 35 M.J. 35 (C.M.A. 1992) at 42.

Of the five members of the court four different opinions

were issued articulating different theories and bases for ad-

mission.

Upon return of the case to the Air Force Court of

Criminal Appeals, the AFCCA issued an opinion dated 9

November 93 affirming the findings and the sentence. On 7

September 94 the Court of Appeals for the Armed Forces

granted the appellant’s petition for review and affirmed the

AFCCA’s decision.

REASON FOR GRANTING THE WRIT

While the Court of Appeals for the Armed Forces has

approved the application of the “good faith” exception to

search authorizations of commanders. See, Lopez, supra;

and U.S. v. Chapple, 36 M.J. 410 (C.M.A. 1993).' The

wisdom of this application and the standard at which it

will be applied is the issue that is the subject of much

debate.? In finding the “good faith” exception extended to

searches by military commanders, the Court of Appeals

for the Armed Forces wrote four different opinions ex-

pounding different standards by which the exception

would be applied to searches of commanders.

' Whether the Fourth Amendment applies to members of Armed

Forces may be a question over which there is considerable doubt. For

example, Judge Crawford in writing the opinion of the court below

and joined by only one other judge, in Lopez, 35 M.J. 35 (C.M.A.

1992) states “. . . the Supreme Court has never expressly applied the

Bill of Rights to the military, but has assumed they applied.” /d. at 41.

Chief Judge Sullivan cites the Supreme Court’s plurality opinion in

Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953)

and two remand orders from the Supreme Court in support of his

position that the issue is not unresolved. Lopez at 48. Judge Wiss also

citing the Burns decision states that “. . . unless and until the Supreme

Court of the United States hold otherwise, the law of this Court closes

this question.” Lopez at 49. Finally, Judge Cox believes that the

Fourth Amendment should only be applied to the extent that it pro-

hibits unreasonable searches and seizures within the context of expec-

tations in the military.

However, as this case does not raise this issue there is no need for

this court to address it.

2 See, Vienna and Chema, United States v. Leon: Good Faith and

the Military Commander, 25 A.F.L. Rev. 95, 103 (1985); Fountain,

The “Good Faith” Exception to the Commanders’ Search Authoriza-

tion: An Unwarranted Exception to a Warrantless Search, The Army

Lawyer, August 1988, 29; and Stevens, Examining the “Good Faith”

Exception to the Exclusionary Rule and Its Application to Com-

manders’ Search Authorizations, The Army Lawyer, June 1986, 55.

6

The Supreme Court in announcing the “good faith” ex-

ception to the exclusionary rule in Leon, supra, high-

lighted that the application of the rule to magistrates and

judges is unnecessary because there is no basis to believe

“'. . that exclusion of evidence seized pursuant to a war-

rant will have a significant deterrent effect on the issuing

judge or magistrate.” 468 U.S. at 916. The application of

this exception does not however withstand scrutiny when

applied to warrants issued by commanders. Judge Wiss in

his concurring opinion in the case sub judice noted,

“Unlike magistrates-civilian or military-“[a] military com-

mander has responsibilities for investigation and for law

enforcement that a magistrate does not possess. Also, he

has responsibilities for the welfare and combat readiness

of the personnel under his command” Lopez at 51 citing

United States v. Stuckey, 10 M.J. 347, 359 (C.M.A. 1981).

It is this conflict which renders the application of the

“good faith” exception to the exclusionary rule, and

M.R.E. 311(b)(3), to warrants issued by military com-

manders unconstitutional. To give searches approved by

commanders the same “great deference” that searches of

magistrates and judges are entitled to subjects all service

men and women to unconstitutional searches.

CONCLUSION

The petitioner was the subject of a search approved by

his commander not based upon probable cause and upheld

solely on the basis of the “good faith” exception to the ex-

clusionary rule. The extension of this exception to the

military by virtue of M.R.E. 311(b)(3) is unconstitutional

and in violation of the Fourth Amendment to the Con-

stitution which must be applied in its application to all

members of the Armed Forces.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

JOSEPH L. HEIMANN

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

December 1994

APPENDICES

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 66,675.

ACM 28069.

UNITED STATES, APPELLANT.

Vv.

FRANK J. LOPEZ, STAFF SERGEANT,

U.S. Air FORCE, APPELLEE.

Argued Jan. 7, 1992.

Decided Aug. 12, 1992.

Accused was convicted by general court-martial, Torre-

jon Air Base, Spain, Dennis L. Olson, J., on conditional

guilty pleas to possession and use of too many ration cards

and theft of ration cards. The United States Air Force

Court of Military Review, 32 M.J. 924, reversed and

dismissed charges. On certification, 33 M.J. 169, the

United States Court of Military Appeals, Crawford, J.,

held that good-faith exception to exclusionary rule applied

to ration cards discovered pursuant to search authoriza-

tion issued by accused’s commanding officer.

Reversed and remanded.

Cox, J., concurred with modest reservations and filed

opinion.

Sullivan, C.J., and Wiss, J., filed opinions concurring

in result.

(la)

2a

Kor Appellant: Captain Thomas E. Wand (argued);

Lieutenant Colonel Brenda J. Hollis and Major Paul H.

Blackwell, Jr. (on brief).

For Appellee: Major John V. Sullivan (argued); Colonel

Jeffrey R. Owens and Major Ronald G. Morgan (on

brief).

Opinion of the Court

CRAWEORD, Judge:

The accused was convicted by general court-martial of

unlawful possession and use of ration cards and theft of

three ration cards, in violation of Articles 92 and 121,

Uniform Code of Military Justice, 10 USC §§ 892 and

921, respectively. The accused moved to suppress the ra-

tion cards on the ground that they had been illegally seiz-

ed. When this motion was denied, he entered conditional

pleas of guilty to all Charges and specifications. He was

sentenced to a bad-conduct discharge and reduction to

E-1. The Court of Military Review, over the dissent of

Chief Judge O’Brien, reversed the military judge’s denial

of the motion to suppress and dismissed the charges. 32

MJ 924 (1991). The Judge Advocate General certified this

decision to us for review. See 35 MJ 46. We reverse.

All five judges agree that a good-faith exception to the

exclusionary rule applies to this commander.

The accused was a noncommissioned officer stationed

at Torrejon Air Base, Spain, “in charge of his unit orderly

room” and had the responsibility of “issuing ration cards

to members of his squadron.” These ration cards authoriz-

ed “patrons to purchase items, in limited quantities,” from

“various tax-exempt shops run by the U.S. military in

Europe.”

3a

On April 4, 1989, the Air Force Office of Special In-

vestigations (OSI) “received a complaint that” the accused

probably had “been abusing his ration card privileges.” /d.

at 926. After it became apparent that OSI was taking no

action on the report, the complainant forwarded it to the

security police at the air base on May 10, 1989.

On May 11, 1989, Technical Sergeant McKinnon from

the security police went to the accused’s commanding of-

ficer, Major Joe Frederick Harrison, and told him that he

had received reports from two cashiers at the commissary

that the accused “was using more than one ration card,”

id. at 926, and was buying numerous amounts of cigarettes

several times a week. Major Harrison knew that the accus-

ed was the individual who issued ration cards and that the

accused had had financial difficulties in January 1989.

Based on this information, Major Harrison thought that

the documents used to issue the ration cards would be

found in the accused’s desk,' and that one ration card

would be on his person and additional cards would be

found in his car or dormitory room. Thus, he authorized a

search of the office desk, car, dormitory room, and person

of the accused. Before authorizing the search, he called the

base staff judge advocate (SJA) to see if he had probable

cause for the search. The SJA indicated that this informa-

tion was sufficient for a search authorization. Sergeant

McKinnon did not tell Major Harrison that the informa-

tion from the cashiers was obtained 5 weeks earlier, id. at

926, but he did indicate that this was an ongoing activity

by the accused. He also did not tell the commander

anything about the cashiers. At trial the military judge

' The examination of the desk to audit the books and to determine

any discrepancy in the ration control cards procedure may be con-

ducted on less than probable cause. Cf. O’Connor v. Ortega, 480 U.S.

709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987).

Te. 4a

denied the defense motion to suppress but held that the ra-

tion cards seized from the accused were only admissible

under the good-faith exception, citing Mil.R.Evid.

311(b)(3), Manual for Courts-Martial, United States, 1984

(Change 2).

An impartial commander may authorize a search based

on probable cause. Mil.R.Evid. 315(f)(2) provides, “Prob-

able cause to search exists when there is a reasonable belief

that the... property... sought is located in the

place . . . to be searched.” In determining whether there is

probable cause the commander will apply the totality-of-

the-circumstances test of //linois v. Gates, 462 U.S. 213,

233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). See

United States v. Tipton, 16 MJ 283, 286 (CMA 1983).

While Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12

L.Ed.2d 723 (1964), and Spinelli v. United States, 393

U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), were re-

jected by the Supreme Court as being unduly “rigid,” 462

U.S. at 231, 103 S.Ct. at 2328, the Aguilar-Spinelli test

still is “highly relevant in determining” probable cause. /d.

at 230, 103 S.Ct. at 2328. Otherwise, a magistrate is left

“to rely on common sense.” /d. at 274, 103 S.Ct. at 2351

(White, J., concurring in the judgment).

As indicated, the timeliness of the information and the

relationship between the crime objects and place to be

searched are aspects of the probability test. Timeliness of

the information is considered differently in determining

whether there is probable cause to apprehend or whether

there is probable cause to search. Once it is shown that

probable cause for apprehension exists, the probable cause

will exist for weeks or months absent intervening ex-

culpatory facts. United States v. Watson, 423 U.S. 411,

Sa

432 n. 5, 96 S.Ct. 820, 832 n. 5, 46 L.Ed.2d 598 (1976)

(Powell, J., concurring). In contrast, probable cause to

search a place does grow stale with the passage of time. In

such a situation, the passage of time at some point results

in the likelihood that the goods will no longer be in the

Original location. Whether too long a period has elapsed

from the time the facts are obtained until the search is

authorized depends on many factors. One is the location

involved: United States v. Land, 10 MJ 103 (CMA 1980)

(2 or 3 days for “substantial” quantity of hashish to be in

accused’s apartment not too stale). Another is the type of

crime: Rugendorf v. United States, 376 U.S. 528, 84 S.Ct.

825, 11 L.Ed.2d 887 (1964) (Court seemed to assume that

large quantities of stolen property not readily disposable

will remain in a location for at least 6 days); United States

v. Queen, 26 MJ 136(CMA 1988) (in view of threat of im-

minent death to subordinate, delay of 2 or even 6 weeks

after sighting pistol to obtain it from the accused’s vehicle,

not untimely, distinguishing United States v. Bright, 2 MJ

663 (AFCMR 1976)). A third is the nature of the articles

seized: United States v. Johnson, 23 MJ 209 (CMA 1987)

(25-day delay before seizing stereo not too stale— unlike

drugs). The last factor is how long the crime has been con-

tinuing: Andresen v. Maryland, 427 U.S. 463, 478 n. 9, 96

S.Ct. 2737, 2747 n. 9, 49 L.Ed.2d 627 (1976) (3-month

delay not too stale when dealing with complex real estate

scheme); United States v. Harris, 403 U.S. 573, 579 n. *,

91 S.Ct. 2075, 2079 n. *, 29 L.Ed.2d 723 (1971) (plurality

opinion) (2-week delay not too stale when dealing with

moonshining over a 2-year period). In summary, the infor-

mation considered by the individual authorizing a search

must make it more probable than not that the item is

located at the place to be searched.

The other factor to be considered by the authorizing of-

ficial is the relationship that exists between the crime,

6a

objects, and place. This is another difference between

probable cause to search as compared to probable cause to

apprehend. Probable cause to apprehend does noi require

establishment of a nexus between the individual to be ap-

prehended and any object or place. However, in order to

establish probable cause to search, there must be probable

cause to believe that the items connected with criminal ac-

tivity are located at the place or places to be searched. Ina

foreign country where there has been a recent taking of

property, such as a stereo with no distinctive markings,

there is an inference that the property will be either at the

residence, barracks, or home of the individual. United

States v. Johnson, 23 MJ at 212. See also United States v.

Barnard, 23 USCMA 298, 49 CMR 547 (1975); United

States v. Alexander, 835 F.2d 1406, 1409 (11th Cir. 1988)

(“Because Alexander had been driving the car in the days

after the robbery, a reasonably prudent person would

believe that the revolver and additional dye-stained money

were in the car.”) (footnote omitted); United States v. Fan-

nin, 817 F.2d 1379, 1382 (9th Cir. 1987) (reason to assume

drugs at defendant’s residence).

As demonstrated by the court below, the existence of

probable cause was very close. We need not determine if

there was sufficient probable cause. Because there was

more than a “bare bones” presentation of facts to Major

Harrison, we hold that the good-faith exception to the ex-

clusionary rule applies.

The military, like the Federal and state systems, has

hierarchical sources of rights. These sources are the Con-

stitution of the United States; Federal Statutes, including

the Uniform Code of Military Justice; Executive Orders

containing the Military Rules of Evidence, Section III of

the Military Rules of Evidence “codifies” the constitu-

7a

tional rules. Normal rules of statutory construction pro-

vide that the highest source authority will be paramount,

unless a lower source creates rules that are constitutional

and provide greater rights for the individual; for example,

Mil.R.Evid. 305(e) as to notice to counsel, or Article 31,

UCMJ, 10 USC § 831, hiceaitite warnings to suspects not

in custody.

In 1986 the President set forth the good-faith exception

in Mil.R.Evid. 311(b)(3), Manual, supra (Change 2). This

rule specifically applies regardless whether the search

authorization is by a judge, a magistrate, or a commander.

The rule does not distinguish between affidavits or

unsworn statements, and it is not limited to written

authorizations. The Drafters’ Analysis to the rule states:

“The rationale articulated in [United States v.] Leon [, 468

U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ] and

[Massachusetts v. | Sheppard [, 468 U.S. 981, 104 S.Ct.

3424, 82 L.Ed.2d 737 (1984) ] 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, as defined

in United States v. Ezell, 6 MJ 307 (CMA 1979).” Manual,

supra at A22-17 (Change 2). In addition to examining

whether the particular commander evidenced neutrality,

other considerations in determining whether to apply the

good-faith exception may include those enumerated in the

Analysis: “the level of command of the authorizing com-

mander; whether the commander had training” on search

and seizures rules; “whether the rule governing the search

or seizure being litigated was clear, whether the evidence

supporting the authorization was given under oath;

whether the authorization was reduced to writing; and

whether the defect in the authorization was one of form

[over] substance”; as well as “whether the commander

received the advice of a judge advocate prior to” giving the

search authorization. /d. at A22-17.

8a

The Courts of Military Review have split on the ques-

tion whether to extend the good-faith exception to search

authorizations issued by commanders. United States v.

Mix, 32 MJ 974, 983 (ACMR 1991) (applied); United

States v. Lopez, 32 MJ 924 (AFCMR 1991) (rejected);

United States v. Postle, 20 MJ 632, 642-47 (NMCMR

1985) (applied).

Let us contrast and compare search authorizations

issued by commanders and warrants issued by judges and

magistrates. Each require probable cause and issuance of

the authorization by a neutral and detached official.

Whether an oath is required is dependent upon service

regulations. This Court has “recognized the unique ‘truth-

telling effect’ of an identified servicemember’s giving in-

formation in the presence of a superior officer.” United

States v. Tipton, 16 MJ at 287. Clearly, false information

given to any authorizing official may form the basis of a

false official statement chargeable under Article 107 of the

Code, 10 USC § 907.

One of the requirements of the good-faith exception is

that the authorizing official be neutral and detached. The

aim of requiring the neutral and detached magistrate is to

impose an orderly process and prevent the magistrate from

representing a law enforcement interest while at the same

time authorizing searches and seizures. On a number of

occasions the Supreme Court has struck down search war-

rants when they were not issued by neutral and detached

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

319, 327, 99 S.Ct. 2319, 2324-25, 60 L.Ed.2d 920 (1979)

(warrant issued by justice of the peace who allowed

himself to become a member of the search party);

Coolidge v. New Hampshire, 403 U.S. 443, 450, 453, 91

S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971) (warrant issued

by state Attorney-General acting as chief prosecutor);

9a

Mancusi v. DeForte, 392 U.S. 364, 371, 88 S.Ct. 2120,

2125, 20 L.Ed.2d 1154 (1968) (subpoena duces tecum

issued by a district attorney). While the issuing authority

must be neutral and detached, there is no constitutional re-

quirement that the person have some minimal legal or

educational qualifications or even that the issuing authori-

ty be a lawyer. Shadwick v. City of Tampa, 407 U.S. 345,

92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). But the Court em-

phasized that the issuing official must be neutral and

detached and must be capable of determining whether

probable cause exists.

Historically the Fourth Amendment was designed to

protect individuals from the King’s messengers and colo-

nial customs officials. 10 Life and Works of John Adams

276 (1856). There was no requirement that a commander

be neutral and detached. In fact, the commander was

thought to have “plenary power,” United States v. Worley,

3 CMRF (AF) 424, 442 (Judicial Council 1950), quoted in

United States v. Florence, 1 USCMA 620, 623, 5 CMR 48,

51 (1952). It was not until 1959 that we ruled that a com-

mander must have probable cause to search. United States

v. Brown, 10 USCMA 482, 28 CMR 48 (1959). Judge

Latimer dissented, arguing that the issue is reasonableness

and not whether a commander had probable cause. Id. at

489, 28 CMR at 55. Despite his argument, Manual for

Courts-Martial, United States, 1969 (Revised edition) (in

para. 152), and 1984 Manual, supra (in Mil.R.Evid.

315(f)) have required probable cause. The 1984 Manual

(Mil.R.Evid. 315(d)) added the requirement of impartiali-

ty which was intended to incorporate the neutral-and-

detached standard of United States v. Ezell, 6 MJ 307

(CMA 1979).

A commander who orders an investigation may be dis-

qualified from authorizing a search, but asking for “addi-

10a

tional information” is not disqualifying. United States v.

Ezell, 6 MJ at 319. Likewise, where a search authorization

is motivated by revenge, United States v. Ezell, 6 MJ at

307, or vindictiveness, United States v. Staggs, 23

USCMA I11, 113, 48 CMR 672, 674 (1974), a commander

will be disqualified. But when the commander is drawing

on knowledge derived as part of routine administrative

matters, he or she will not be disqualified, United States v.

Rushing, 11 MJ 95, 97-98 (CMA 1981). In Rushing the

authorizing commander was not disqualified because he

was aware of the accused’s prior record of conduct and

knew who reported the accused for substance abuse or

because he initially instructed the agents to ask for permis-

sion to search the accused’s person. Likewise, the com-

mander in United States v. McCarthy, 7 MJ 42, 43 (CMA

1979), was not disqualified because he had previous

knowledge that the accused “was awaiting trial for drug

charges . . . and that several informants had reported” the

accused “as being involved in drug activity.”

The change to the Manual adopting the good-faith ex-

ception recognizes that the commander must be impartial.

This language, incorporating the requirement of Ezell, is

important because it recognizes that there is a difference

between a commander with his or her various roles and a

civilian magistrate. Additionally, it is an implicit recogni-

tion that the Supreme Court has never expressly applied

the Bill of Rights to the military, but has assumed they ap-

plied.2 It has in the past recognized the difference be-

? F. Gilligan and F. Lederer, Court-Martial Procedure § 1-52.00 at

26 (1991): “Scholars have differed as to whether the Bill of Rights does

apply to the armed forces. Strangely enough, in one sense the question

remains open. Although the Supreme Court has assumed that most of

the Bill of Rights does apply, it has yet to squarely hold it applicable.”

(Footnotes omitted.)

But since United States v. Jacoby, 11 USCMA 428, 430-31, 29

lla

tween the military and the civilian community that result

from “the primary business of armies and navies [being] to

fight or be ready to fight wars should the occasion arise.”

United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76

S.Ct. 1, 5, 100 L.Ed. 8 (1955). “An army is not a

deliberative body. It is the executive arm. Its law is that of

obedience. No question can be left open as to the right to

command in the officer, or the duty of obedience in the

soldier.” Parker v. Levy, 417 U.S. 733, 744, 94 S.Ct. 2547,

2556, 41 L.Ed.2d 439 (1974), quoting /n re Grimley, 137

U.S. 147 153, 11 S.Ct. 54, 55, 34 L.Ed. 636 (1890).

In any event, the good-faith exception will not apply

when part of the information given to the authorizing of-

ficial is intentionally false or given with “reckless disregard

for the truth.” It will also not apply where “no reasonably

well trained officer should rely on the warrant.” The ex-

ception also will not apply when the “affidavit [is] ‘so lack-

ing in indicia of probable cause as to render official belief

CMR 244, 246-47 (1960), this Court has held that the Bill of Rights ap-

ply, “except those which are expressly or by necessary implication in-

applicable.” The right to indictment by grand jury is expressly made

inapplicable to members of the armed forces, U.S. Const. amend. V,

and this Court has held that the Fourth Amendment oath requirement

does not apply. United States v. Stuckey, 10 MJ 347 (CMA 1981).

However, servicemembers enjoy numerous rights that are not

available to defendants in the state or federal criminal justice system.

For example, they are entitled to be notified of the nature of the of-

fense before there can be a valid waiver under Article 31(b), Uniform

Code of Military Justice, 10 USC § 831(b), and Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). They also are en-

titled to counsel at the very early stages of the criminal process and

throughout the appellate process, regardless of indigency. See e.z.,

United States v. Wattenbarger, 21 MJ 41 (CMA 1985), cert. denied,

477 U.S. 904, 106 S.Ct. 3272, 91 L.Ed.2d 563 (1986). Finally, they are

generally entitled to verbatim records of trial, regardless of indigency.

Art. 54, UCMJ, 10 USC § 854.

12a

in its existence entirely unreasonable.’ ” Finally, it will not

apply when the authorization “may be so facially defi-

cient—i.e., in failing to particularize the place to be

searched or the things to be seized —that the executing of-

ficers cannot reasonably presume it to be valid.” United

States v. Leon, 468 U.S. 897, 923, 104S.Ct. 3405, 3421, 82

L.Ed.2d 677 (1984).

These exceptions to the good-faith rule apply to search

authorizations by commanders. Certainly Major Harrison

was neutral and detached within the meaning of Eze//. Ma-

jor Harrison was not motivated solely by revenge? or vin-

dictiveness.*

Next we analyze the factors set forth in the Analysis. In

this case the information given to the commander and the

testimony given at this trial were not models of clarity.

This case emphasizes the need for training on search

authorizations and probable cause for apprehensions.

This training requirement is not new, as the Court in Shad-

wick indicated the issuing official must not only be neutral

and detached, but also must understand probable cause.

This case would not preclude the good-faith exception

from applying because of the lack of training. Just who

this well-trained officer is is still being fleshed out. At the

> United States v. Ezell, 6 MJ 307 (CMA 1979). Boswell’s com-

mander testified that earlier he had conducted a search and the

evidence could not be used since he “blew” the search. /d. at 321.

Ezell’s commander was not disqualified even though he said that he

had approved an administrative discharge for the accused and did not

want him to remain in the unit. /d. at 320.

* United States v. Staggs, 23 USCMA I11, 113, 48 CMR 672, 674

(1974): “ ‘[W]e’d been after him’ for some time.” The staff judge ad-

vocate was held disqualified for this and other factors. Cf. United

States v. Ezell, 6 MJ at 320 n. 45: The commander, who was not held

_to be disqualified, said, “We never had any hard evidence that he was

involved in drug traffic before that we were able to prosecute or

anything.”

meer Shir SANA Te OES FIs BENS

l3a

very least, the officer must be familiar with well-

established principles. See United States v. Hale, 784 F.2d

1465 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 110],

94 L.Ed.2d 59 (1986); United States v. Weinstein, 762

F.2d 1522 (11th Cir. 1985), cert. denied, 475 U.S. 1110,

106 S.Ct. 1519, 89 L.Ed.2d 917 (1986). As to probable

cause, it is “highly relevant” that the commander applied

the Aguilar-Spinelli test. Illinois v. Gates, 462 U.S. at 230,

103 S.Ct. at 2328; Mil.R.Evid. 315(f), Drafters’ Analysis,

Manual, supra at A22-27 (Change 2). It is finally very

significant that the commander acted only after consulting

the local SJA.

We hold that the good-faith exception is applicable to

the authorization by Major Harrison. He was an impartial

authorizing official; there was a substantial basis for find-

ing probable cause; and the authorization was reasonably

relied upon by the executing officials. Clearly, those con-

ducting the searches acted in good faith by relying on what

this rational commander did under the circumstances

known to him.

The decision of the United States Air Force Court of

Military Review dismissing the charges is reversed. The

record of trial is returned to the Judge Advocate General

of the Air Force for remand to the court for further

review.

Judge GIERKE concurs.

Cox, Judge (concurring with modest reservations):

For some time now, I have been “urg[ing] a fresh look at

the proper application of the Fourth Amendment to

. . . [military] society.” United States v. Morris, 28 MJ 8,

14 (CMA 1989) (Cox, J., concurring in part and dissenting

in part); see also United States v. Moore, 23 MJ 295,

l4a

299-300 (CMA 1987) (Cox, J., concurring in the result).

Recently, in United States v. Alexander, 34 MJ 121,

127-28 (CMA 1992) (Cox, Jr., concurring in the result), [

tried again. The instant case presents yet another oppor-

tunity. Unfortunately, the majority remains attached, ver-

bally, to doctrines intended for Mainstreet, USA, not

military organizations, | have no doubt that the Fourth

Amendment has meaning and protects servicemembers

everywhere from arbitrary or unlawful actions of military

authorities. My disagreement with our prior holdings

stems from their mechanical application of doctrine aris-

ing in a civilian context to cases arising unicuely in the

military context.

As the lead opinion notes, this dialogue first jumped off

track in United States v. Brown, 10 USCMA 482, 488, 28

CMR 48, 54 (1959), wherein a majority of two invented

the requirement that a military commander must have

what it termed “[rJeasonable or probable cause” in order

to authorize what it termed an “apprehension” and

“search.”!

Within a few short years, the majority had “equated”

the commander to a federal magistrate:

Power to authorize a search is within the province of

the commanding officer. . . . Paragraph 152, Manual

for Courts-Martial, United States, 1951. In this con-

text he stands in the same relation vis-a-vis the in-

vestigating officer and an accused as the Federal

magistrate. And we have so equated him. United

States v. Ness, 13 USCMA 18, 32 CMR 18; United

States v. Battista, 14 USCMA 70, 33 CMR 282;

United States v. Davenport, 14 USCMA 152, 33

CMR 364.

' It should be noted that the initial selection of terminology such as

“search,” “apprehension,” or “inspection” tends to be outcome-

determinative.

1Sa

United States v. Hartsook, 15 USCMA 291, 294, 35 CMR

263, 266 (1965) (emphasis added). Cf. United States v.

Fimmano, 8 MJ 197 (CMA 1980) (Fourth Amendment

“requirement . . . that ‘no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation’ ” ap-

plies with equal force to command-ordered “search’”).?

It was but a small step to declare the commander a vir-

tual trespasser in his own barracks. E.g., United States v.

Thomas, 1 MJ 397 (CMA 1976); United States v. Roberts,

2 MJ 31 (CMA 1976); United States v. Ezell, 6 MJ 307

(CMA 1979).

Predictably, any time it appeared in sublime appellate

hindsight that commanders in the field did not look, talk,

think, and act like enchambered legal scholars, those com-

mand actions were deemed tainted, and all resulting

evidence was barred from courts-martial. Eg., United

States v. Ezell, supra. Even the most fundamental obliga-

tion of military command —the duty to inspect the forces

to ensure mission preparedness—was_ severely and

unrealistically curtailed; only the most superficial range of

tangible items could be examined in the name of a military

inspection —every other sort of examination quickly being

branded a mere “subterfuge” for a search. United States v.

Thatcher, 28 MJ 20, 24 (CMA 1989); United States v.

Johnston, 24 MJ 271, 274 (CMA 1987). Compare United

States v. Middleton, 10 MJ 123 (CMA 1981), and United

States v. Alexander, supra at 127-28, and United States v.

Moore, supra at 299-300 (Cox, J., concurring in the

result).

? Both the claim that commanders stood on the same footing as

federal magistrates and the oath/affirmation requirement were later

abandoned in United States v. Stuckey, 10 MJ 347, 360-61 (CMA

1981).

l6a

In 1980 the President, no doubt under duress of this

Court’s campaign, promulgated various rules of evidence

for the armed forces. In part, these rules reflected the

then-existing Fourth Amendment holdings of this Court,

which in turn applied literalistically the civilian-

community-based Supreme Court holdings. See Chapter

XXVII, Military Rules of Evidence, Manual for Courts-

Martial, United States, 1969 (Revised edition) (Change 3).

With few notable exceptions, e.g., United States vy.

Stuckey, 10 MJ 347 (CMA 1981); Murray v. Halderman,

16 MJ 74 (CMA 1983), the dialogue remains largely un-

changed —this case included.

In my view, history has merely confirmed the wisdom of

Judge Latimer’s original dissent in Brown, wherein after a

lengthy recitation of military authorities, he observed:

I do not contend a commanding officer has

unlimited power to search members of his command,

but I do assert he is not circumscribed by all the

refinements applied in civilian cases. He has many oc-

casions, other than searches to obtain incriminating

evidence, which justify orders to search members of

his command while on station. These are not present

in the civilian community and, under any conceivable

theory, it is only when his orders to search or seize

cannot be considered reasonable that they are

unlawful. What constitutes a reasonable search

depends upon the facts and circumstances of each in-

dividual case, and in the military there are many fac-

tors which must be considered.

The word “reasonable” as it must be interpreted in

military law is not limited to those situations where

the commander has probable cause to believe a par-

ticular person possesses contraband and he alone can

17a

be searched. If it were so limited, then the civilian

doctrine might be applicable. But it must be

remembered that a commanding officer has the duty

to maintain law and order and to protect the welfare,

health, well-being, and safety of the command. He

cannot sit idly by and await positive information that

offenses are being committed. He has an obligation to

prevent any misbehavior which will impair the effi-

ciency and good order of his command. Surely the

captain of a ship is not required to allow liquor or

drugs to be smuggled aboard because he cannot fix

with certainty the particular culprit. While a civilian

can be denied the right to board the ship, under or-

dinary circumstances a member of its complement

may not, and searching is the only effective way to

reach the evil if the smuggling is being done by

sailors. The same principle is involved when Army or

Air Force personnel come on station. Therefore, in

order to determine whether a commander has

reasonable cause to order a search, consideration

must be given to his duties and responsibilities to

maintain a combat ready outfit, and his judgment

should not be questioned unless he clearly abuses his

authority.

10 USCMA at 492-93, 28 CMR at 58-59 (citations

omitted).

In United States v. Stuckey, 10 MJ at 359-60, then-

Chief Judge Everett echoed the reasonable-commander

theme, observing:

A military commander has responsibilities for in-

vestigation and for law enforcement that a magistrate

does not possess. Also, he has responsibilities for the

18a

welfare and combat readiness of the personnel under

his command. The commander’s responsibilities with

respect to an installation or area over which he has

command give him the power to deny entry to persons

who do not submit to a search at the gateway.

Similarly, these responsibilities provide the com-

mander with a basis for curtailing the exercise of First

Amendment rights within the area under his com-

mand. Paragraph 152 of the [1951 and 1969] Manual

for Courts-Martial, in which the President em-

powered commanders to authorize searches and

seizures as to persons and property under his com-

mand, was not promulgated because the commander

could by legalistic legerdemain be transmuted into a

magistrate; but instead this was done because, in light

of the responsibilities imposed upon the commander,

it was reasonable to give him this power.

In promulgating paragraph 152 of the Manual the

President may also have recognized that inherent in

the command structure are some safeguards against a

commander’s indiscriminate invasion of the privacy

of his subordinates. For one thing, combat readiness

of troops depends in large part upon their motiva-

tion, but discipline and punishment cannot alone

develop the necessary motivation. Leadership is also

required, and one aspect of successful leadership is

concern for the welfare of subordinates. Loyalty

in a military unit, as in other organizations, is a

two-way street. A commander who approves —or

even tolerates —arbitrary invasions of the privacy of

his subordinates is not demonstrating the brand of

leadership likely to command the loyalty or produce

19a

the high morale associated with a combat-ready

organization. Accordingly, a commander has some

incentive to act reasonably and with sound judgment

in acting on requests for searches and seizures which

involve his personnel. Moreover, repeated failures by

a commander to respect the Fourth Amendment

rights of his troops might become a basis for a “com-

plaint of wrongs” under Article 138 of the Uniform

Code, 10 USC § 938, or, in the extreme case, even for

a prosecution for dereliction of duties as a com-

mander. See Article 92, UCMJ, 10 USC § 892.

(Citations and footnotes omitted.)

Albeit with limitations, our cases have long since recog-

nized the uniqueness of “searches and seizures” in the mili-

tary community. Without much difficulty, we readily ac-

knowledge at least four major variances from conven-

tional Fourth Amendment doctrine:

First, there is no requirement in the military that the

commander who issues a search authorization be a judicial

officer: “The commander’s power to authorize searches of

places and persons under his control exists—to whatever

extent it does exist — because it complies with the Fourth

Amendment’s basic norm of reasonableness.” United

States v. Stuckey, 10 MJ at 361. Indeed, the very term,

“neutral and detached commander,” would be an oxy-

moron, for how can a person “command” a military unit

and still be detached, distinterested, and neutral?

Second, there is no military requirement that the search

authorization “be in writing.” United States v. Stuckey, 10

MJ at 358, 360-61; see United States v. McClain, 31 MJ

130, 134 (CMA 1990). A verbal search authorization

which satisfies the requirement for particularization will

suffice.

20a

Third, there is no requirement for an oath or affirma-

tion. United States v. Stuckey, 10 MJ at 361.

Fourth, the most pervasive of all general searches —the

“military inspection” — may be conducted utterly without

probable cause and without the particularization required

for a warrant. United States v. Middleton, 10 MJ 123

(CMA 1981).

My position is simple. The Fourth Amendment only

protects military members against unreasonable searches

within the context of the military society. See Goldman v.

Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478

(1986). Something as drastic as a “shakedown inspection”

can Only be justified in the military because of the over-

riding need to maintain an effective force. Likewise, pre-

emptive strikes on drugs and other dangers can only be

reasonable because of their impact on the mission. See

United States v. Alexander and Murray v. Haldeman, but

supra. The United States Court of Military Appeals has

the obligation to ensure that inspections, searches, and

seizures in the military society are reasonable in their in-

ception and in their conduct. This means that commanders

must have rules which are honest, simple, forthright, and

easy for both the commander and the commanded to

understand.

Thus, I urge a relook at the Military Rules of Evidence.

* Manual for Courts-Martial, United States, 1984. As I read Mil.R.

Evid. 313 (“Inspections and inventories in the armed forces”); 314

(“Searches not requiring probable cause”); and 315 (“Probable cause

searches”), they are only mirages anyway —traps for the unwary. In-

deed Mil.R.Evid. 314(k) itself contains the exception that swallows

these “rules,” stating: “A search of a type not otherwise included in

this rule and not requiring probable cause under Mil.R.Evid. 315 may

be conducted when permissible under the Constitution of the United

States as applied to members of the armed forces.”

In other words, unless we are to ignore plain meaning, if the

2la

It seems to me that very simple rules would suffice to

balance Fourth Amendment protection with the realities

of military society. If the commander acted reasonably in

authorizing a “search,” given the time, place, cir-

cumstances and information available to him, then the

fruits of that intrusion should not be suppressed. “Stated

another way,” as I expressed it in United States v. Morris,

28 MJ at 18, “if the commander would have been remiss in

failing to act to abate the potential threat to the installa-

tion, personnel, and mission, then the evidence should not

be suppressed.” Whether the commander acted reasonably

will be determined in the first instance by military judges

who must rule on objections to evidence seized. | give the

word “reasonable” its ordinary meaning, i.e., “agreeable

to or in accord with reason or sound judgment; logical. . .

not exceeding the limit prescribed by reason; not excessive:

endowed with reason ... capable of rational

behavior, decision. . . .” The Random House College Dic-

tionary 1100 (1980 rev. ed.). Another way of saying it is

that reasonable is that which is founded upon a reason.‘

“search” does not make it as a Mil.R.Evid. 313 “inspection,” or as a

Mil.R.Evid. 315 “probable cause search,” or as one of the recognized

exceptions listed under Mil.R.Evid. 314, the results of the search are

still admissible if the search was constitutional. Thus, the results of con-

stitutional searches are not subject to exclusion under the Military Rules

of Evidence. Neither, it goes without saying, can the Rules cause

evidence to be admitted in a court-martial if the Constitution forbids it.

Hence, Mil.R.Evid. 313-15 are not “rules” at all, but at best a restate-

ment of the rules; the rule is the Constitution. I certainly agree that ser-

vicemembers, commanders, military police, and military justice practi-

tioners should have up-to-date materials on constitutional law. How-

ever, I suggest it is time to de-Manualize these provisions because peo-

ple keep trying to “apply” them, thinking they are rules.

4 Criminal-justice systems deal with the concept of reasonableness

everyday, for none can be convicted unless the trier of fact is con-

vinced beyond a reasonable doubt of the accused’s guilt.

22a

As I read the lead opinion in this case, the bottom line is

that this commander had ample reason to authorize the

search; so did the police officer conducting the search. In-

deed, everyone acted in good faith. Clearly, the com-

mander acted reasonably in authorizing and conducting

the “search.”*’ Although I do not believe that the “good-

faith exception” created in United States v. Leon, 468 U.S.

897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is apropos to

command-ordered searches and seizures,® the reasoning

advanced by Judge Crawford in reaching her conclusions

is sufficiently analogous to my view to permit me to con-

cur with her that this search was carried out in good faith

and was reasonable under the Fourth Amendment.

> Given that ration control was one of the accused’s military duties,

it is highly probable that the commander’s actions amounted to a sim-

ple military inspection. United States v. Alexander, 34 MJ 121, 127-28

(CMA 1992) (Cox, J., concurring in the result).

® | believe technical doctrines such as the “good-faith exception”

should not be forced to fit military commanders, Mil.R.Evid.

311(b)(3) notwithstanding. I appreciate that the President added

Mil.R.Evid. 311(b)(3) in an attempt to restore some measure of

realism to command authority. However, Leon stands for the pro-

position that the fruits of a police search are admissible at trial, even

though some defect in the warrant is later discovered, provided the

search was conducted in good faith by law enforcement officials act-

ing pursuant to a facially valid search warrant issued by a neutral and

detached magistrate or judge. Thus Leon is grounded upon justifiable

police reliance on the legal conclusions of the recognized legal authori-

ty of the magistrate or judge. I believe it is both unrealistic and un-

necessary to extend this doctrine to commanders, whose training and

role ordinarily in no way resembles that of a magistrate or judge. As

to the latter point, I agree with then-Chief Judge Everett’s view cf the

applicability of the Leon doctrine to the military, in light of the role of

a commander vis-a-vis a magistrate. See United States v. Morris, 28

MJ 8, i2 (CMA 1989).

23a

SULLIVAN, Chief Judge (concurring in the result):

The certified issues in this case are:

{

DID [THE ACCUSED’S] COMMANDER ACT IN

A NEUTRAL AND DETACHED MANNER IN

AUTHORIZING THE SEARCH OF [THE AC-

CUSED’S] BARRACKS ROOM FOR CONTRA-

BAND RATION CONTROL CARDS?

DID [THE ACCUSED’S] COMMANDER HAVE A

SUBSTANTIAL BASIS FOR DETERMINING THE

EXISTENCE OF PROBABLE CAUSE, AND DID

THE OFFICIALS SEEKING AND EXECUTING

THE SEARCH AUTHORIZATION REASON-

ABLY AND WITH GOOD FAITH RELY ON THE

AUTHORIZATION?

I agree that Major Harrison was “neutral and detached”

within the meaning of United States v. Ezell, 6 MJ 307,

315, 320 (CMA 1979), and that he had a substantial basis

for his probable-cause determination. Assuming that the

requisite probable cause did not in fact exist in this case, I

would uphold the search on the basis of “the good-faith

exception to the exclusionary rule.” See United States v.

Morris, 28 MJ 8, 19 (CMA 1989) (Sullivan, J., concurring

in part and in the result). I write only to disassociate

myself from certain implications which might be drawn

from Judge Crawford’s opinion.

Two principles of law are suggested in her opinion

which I cannot accept. The first proposition, albeit im-

plied, is that the “good-faith exception” to the exclu-

sionary rule as applied at courts-martial only requires that

the commander issuing the search authorization be “im-

partial” rather than “neutral and detached.” See Mil.R.

24a

Evid. 315(d), Manual for Courts-Martial, United States,

1984. The second is that the lesser Manual standard of

“impartiality” is adequate to resolve the accused’s constitu-

tional objection to evidence seized pursuant to an invalid

search authorization.

Mil.R.Evid. 311(b)(3) states:

(3) 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 authori-

zation to search, seize or apprehend issued by

an individual competent to tissue the authoriza-

tion 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 war-

rant had a substantial basis for determining the

existence of probable cause; and

(C) The officials seeking and executing the authori-

zation Or warrant reasonably and with good

faith relied on the issuance of the authorization

or warrant. Good faith shall be determined on

an objective standard.

(Emphasis added.) Mil.R.Evid. 315(d) further states:

(d) Power to authorize. Authorization to search

pursuant to this rule may be granted by an impartial

individual in the following categories:

(1) Commander. A commander or other person

serving in a position designated by the Secretary con-

cerned as either a position analogous to an officer in

charge or a position of command, who has control

over the place where the property or person to be

searched is situated or found, or, if that place is not

under military control, having control over persons

subject to military law or the law of war; or

25a

(2) Military judge. A military judge or magistrate

if authorized under regulations prescribed by the Sec-

retary of Defense or the Secretary concerned.

An otherwise impartial authorizing official does not

lose that character merely because he or she is present

at the scene of a search or is otherwise readily avail-

able to persons who may seek the issuance of a search

authorization; nor does such an official lose impartial

character merely because the official previously and

impartially authorized investigaiive activities when

such previous authorization is similar in intent or

function to a pretrial authorization made by the

United States district courts.

(Emphasis added.)

The Analysis of the Drafters of these Rules of Evidence

made it crystal clear that this language was intended to in-

corporate the “neutral and detached” standard of United

States v. Ezell, supra. They said:

Rule 311(b)(3) was added in 1986 to incorporate the

“good faith” exception to the exclusionary rule based

on United States v. Leon, 468 U.S. 897, 104 S.Ct.

3405, 82 L.Ed. 2d 677 (1984) and Massachusetts v.

Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed. 2d

737 (1984). The exception applies to search warrants

and authorizations to search or seize issued by compe-

tent civilian authority, military judges, military magi-

strates, and commanders. The test for determining

whether the applicant acted in good faith is whether a

reasonably well-trained law enforcement officer

would have known the search or seizure was illegal

despite the authorization. In Leon and Sheppard, the

applicant’s good faith was enhanced by their prior

consultation with attorneys.

26a

The rationale articulated in Leon and Sheppard

that the deterrence basis of the exclusionary rule does

not apply to magistrates extends with equal force to

search or seizure authorizations issued by com-

manders who are neutral and detached, as defined in

United States v. Ezell, 6 MJ 307 (CMA 1979). The

United States Court of Military Appeals demon-

strated in United States v. Stuckey, 10 MJ 347 (CMA

1981) that commanders cannot be equated constitu-

tionally to magistrates. As a result, commanders’ au-

thorizations may be closely scrutinized for evidence

of neutrality in deciding whether this exception will

apply. In a particular case, evidence that the com-

mander received the advice of a judge advocate prior

to authorizing the search or seizure may be an im-

portant consideration. Other considerations may in-

clude those enumerated in Eze// and: the level of com-

mand of the authorizing commander; whether the

commander had training in the rules relating to search

and seizure; whether the rule governing the search or

seizure being litigated was clear; whether the evidence

supporting the authorization was given under oath;

whether the authorization was reduced to writing;

and whether the defect in the authorization was one

of form or substance.

Manual, supra at A22-17 (Change 2) (emphasis added).

Assuming I have misconstrued these Manual rules and

their impartiality requirement, | must address the more

substantial constitutional question alluded to in Judge

Crawford’s opinion. I reject the suggestion or even the

unintended implication of the opinion that Manual rules

provide the exclusive protection to servicemembers from

unreasonable searches and seizures. Consequently, I could

not find the purportedly less demanding Manual rules

27a

dispositive of the accused’s Fourth Amendment claims. In-

stead, it is only where these Manual rules fully satisfy the

demands of the Constitution and the Bill of Rights as ap-

plied in the military context that resolution of the

accused’s claims on this basis would be appropriate. See

United States v. Morris, supra at 19.

In this regard general reference to the plurality opinion

of the Supreme Court in Burns v. Wilson, 346 U.S. 137, 73

S.Ct. 1045, 97 L.Ed. 1508 (1953), is warranted. Moreover,

the remand order of the Supreme Court in Goodson vy.

United States, 471 U.S. 1063, 105 S.Ct. 2129, 85 L.Ed.2d

493, states:

April 29, 1985. On petition for writ of certiorari to

the United States Court of Military Appeals. The

petition for writ of certiorari is granted. The judg-

ment is vacated and the case is remanded to the

United States Court of Military Appeals for further

consideration in light of Smith vy. Illinois, 469 U.S.

9I[, 105 S.Ct. 490, 83 L.Ed.2d 488] (1984).

Furthermore, the remand order of the Supreme Court in

Jordan v. United States, JS oe ee ey, G

112 L.Ed.2d 580 (1990), provides:

Dec. 10, 1990. On petition for writ of certiorari to

the United States Court of Military Appeals. The

petition for writ of certiorari is granted. The judg-

ment is vacated and the case is remanded to the

United States Court of Military Appeals for further

consideration in light of Minnick v. Mississippi, 498

U.S. [146], 111 S.Ct. 486, [112] L.Ed.2d [489] (1990).

The Supreme Court’s express direction to consider

those cases on the basis of its decisions applying the

Bill of Rights contradicts the implication of Judge

Crawford’s opinion that these most precious and

fundamental rights might not at all be available to the

American servicemembers.

28a

Wiss, Judge (concurring in the result):

| write separately to set forth my view on several aspects

of the lead opinion and my basis for concurring with the

majority’s disposition of this appeal.

| offer no view as to whether Major Harrison had prob-

able cause when he authorized the search here in question.

Both the military judge and the Court of Military Review

concluded that Harrison did not have probable cause. 32

MJ 924, 927 (1991). I view that conclusion in the accused’s

favor as the law of the case, see United States v. Ravenel,

26 MJ 344, 350 n. 5 (CMA 1988), and, thus, will not re-

evaluate it here. Accordingly, I do not associate myself

with Part II of the lead opinion.

Whatever seeming relevance there once might have been

to a discussion that might impliedly question application

of the Bill of Rights to the military is tardy. As then-Chief

Judge Everett observed over a decade ago:

The time is long past when scholars disputed the

applicability of the Bill of Rights to service personnel.

Instead, our premise must be “that the Bill of Rights

applies with full force to men and women in the mili-

tary service unless any given protection is, expressly

or by necessary implication, inapplicable” and, there-

fore, that the Fourth Amendment does shield the ser-

viceperson. United States v. Middleton, 10 MJ 123,

126 (CMA 1981) (footnote omitted); United States v.

Ezell, [6 MJ 307] at 313 [((CMA 1979)}; United States

v. Hartsook, 15 USCMA 291, 35 CMR 263 (1965).

United States v. Stuckey, 10 MJ 347, 349 (CMA 1981)

(footnote omitted).

29a

Understandably, then, | am troubled by the quotation

in footnote 2 of the principal opinion. Specifically, | am

unsure what suggests to the authors of that quotation that,

“[s]trangely enough, in one sense the question remains

open.” First, as just indicated and as the lead opinion

acknowledges in its continuation of that footnote, this

Court quite clearly has applied the pertinent portions of

the Bill of Rights. See United States v. Jacoby, \\

USCMA 428, 430-31, 29 CMR 244, 246-47 (1960), citing

Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed.

1508 (1953). Unless and until the Supreme Court of the

United States hold otherwise, the law of this Court closes

this question. Second, as the separate opinion of the Chief

Judge demonstrates, the Supreme Court has applied perti-

nent portions of the Bill of Rights to the military. In doing

so, nothing in the actions of the Supreme Court cited by

the Chief Judge indicates that the Court has assumed ap-

plication of constitutional provisions without so deciding;

thus, I must reject the implication that this assumed ap-

plication of the Bill of Rights has somehow left the ques-

tion open.

Thus, | am unsure what is the purpose of footnote 2. If,

though, it is to suggest any uncertainty on this question, |

disagree.

The principal opinion equates the requirement that a

military commander must be neutral and detached when

issuing a search authorization, on the one hand, with the

neutrality and detachment of a magistrate determining

probable cause, on the other. From this, that opinion con-

cludes that a military commander’s search authorization

necessarily serves as an equally sound basis for applying

the good-faith exception as does a magistrate’s warrant. |

believe that this logical leap is flawed.

30a

A

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405,

82 L.Ed.2d 677 (1984), the Supreme Court of the United

States “modified somewhat” the exclusionary rule that

seeks to enforce the Fourth Amendment’s protection

against unreasonable searches and seizures. /d. at 905, 104

S.Ct. at 3411. The Court went on to conclude that, where

law enforcement officers seize evidence in reasonable

good-faith reliance on a search “warrant issued by a

detached and neutral magistrate,” that evidence is admissi-

ble on the merits in a subsequent criminal trial. /d. at 913,

104 S.Ct. at 3415. As the majority opinion of the court

below recognized:

The underlying premise of Leon is that the exclu-

sionary rule is designed to deter police misconduct,

and that purpose is not advanced when the police act

in good faith reliance on a judicial officer’s deter-

mination of probable cause.

32 MJ 924, 928 (1991). Thus, it is clear that the good-faith

exception of Leon has two points of focus: First, the ex-

istence of a search warrant that was issued by a “detached

and neutral magistrate”; and second, the reasonable good-

faith reliance on that warrant by the executing officers.

Application of this exception in military practice is not

difficult conceptually where the search is pursuant to a

military magistrate’s warrant. The difficulty has come in

attempted application of the exception, in light of its ra-

tionale, to search authorizations given by military com-

manders. Mil.R.Evid. 311(b)(3), Manual for Courts-

Martial, United States, 1984, reflects confusion as to the

appropriate analysis,* and the principal opinion in this

case, if anything, contributes to it.

* For instance, Mil.R.Evid. 311(b)(3)(B) requires that, as part of

the good-faith exception, it must be found that “[t}he individual

3la

It is helpful to a clearer analysis of the exception if each

of the two points of the Supreme Court’s focus in Leon is

considered in the context of military justice.

Warrant by a “detached and neutral magistrate”

The Leon majority reviewed its “strong preference for

warrants” and the concomitant “ ‘great deference’ [that

should be given] to a magistrate’s determination.” 468

U.S. at 914, 104 S.Ct. at 3416. In considering the deter-

rence basis for the exclusionary rule as applied to a magi-

Strate’s warrant, the Court noted:

To the extent that proponents of exclusion rely on its

behavioral effects on judges and magistrates in these

areas, their reliance is misplaced. First, the exclu-

sionary rule is designed to deter police misconduct

rather than to punish the errors of judges and magi-

Strates. Second, there exists no evidence suggesting

that judges and magistrates are inclined to ignore or

subvert the Fourth Amendment or that lawlessness

among these actors requires application of the ex-

treme sanction of exclusion.

Third, and most important, we discern no basis and

are Offered none, for believing that exclusion of

evidence seized pursuant to a warrant will have a

Significant deterrent effect on the issuing judge or

issuing the authorization or warrant had a substantial basis for deter-

mining the existence of probable cause.” I can find no basis at all for

this in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82

L.Ed.2d 677 (1984). Moreover, under the majority opinion in United

States v. Figueroa, 35 MJ 54 (CMA 1992), which I do not fully join,

once it can be found on review that the authorizing official had a

substantial basis for the belief that probable cause existed, then the

finding of probable cause is affirmed, and usually the good-faith

reliance on that finding would not then be in issue.

32a

magistrate. ... [T]o the extent that the rule is

thought to operate as a “systemic” deterrent on a

wider audience, it clearly can have no such effect on

individuals empowered to issue search warrants.

Judges and magistrates are not adjuncts to the law en-

forcement team; as neutral judicial officers, they have

no stake in the outcome of particular criminal pros-

ecutions. The threat of exclusion thus cannot be ex-

pected significantly to deter them. Imposition of the

exclusionary sanction is not necessary meaningfully

to inform judicial officers of their errors, and we can-

not conclude that admitting evidence obtained pur-

suant to a warrant while at the same time declaring

that the warrant was somehow defective will in any

way reduce judicial officers’ professional incentives to

comply with the Fourth Amendment, encourage them

to repeat their mistakes, or lead to the granting of all

colorable warrant requests.

Id. at 916-17, 104 S.Ct. at 3417 (footnotes omitted).

In my view, these observations concerning the lack of

connection between deterrence through exclusion do not

necessarily apply as persuasively to command search au-

thorizations as to magistrates’ warrants. A neutral and de-

tached military commander may authorizate a search, nor

because the commander and the authorization are equiva-

lent to a magistrate and a warrant, but “because it com-

plies with the Fourth Amendment’s basic norm of reason-

ableness . . . in light of his responsibilities and the expec-

tations of the persons who will be affected by the searches

and seizures.” United States v. Stuckey, 10 MJ at 361

(footnote omitted). Simply because a particular com-

mander may be “detached and neutral” enough to con-

clude that a search pursuant to his or her authorization

based on probable cause was “reasonable” under the

33a

Fourth Amendment does not ineluctably lead to a conclu-

sion that that commander’s authorization is entitled to the

“great deference” of a magistrate’s warrant if later that

authorization is found not to have been based on probable

cause.

For instance, it is not abundantly clear to me that —in

contradistinction to judges and magistrates—there is no

basis to believe that exclusion of evidence seized pursuant

to a command authorization will not have a significant

deterrent effect on certain commanders. Stated another

way, and to paraphrase the Supreme Court’s discussion

quoted above, I do not believe that it is at all clearcut that

the exclusionary rule “can have no such [deterrent] effect

on individuals empowered to” authorize searches when

those individuals are commanders.

Further, and again paraphrasing from the Supreme

Court’s observations related to deterrence, commanders

may not literally be “adjuncts to the law enforcement

team,” but it is not entirely fair to conclude that “they have

no stake in the outcome of particular criminal prosecu-

tions.” It may well be, as the Supreme Court determined,

that admitting evidence seized pursuant to a defective war-

rant will not “in any way reduce judicial officers’ profes-

sional incentives to comply with the Fourth Amendment,

encourage them to repeat their mistakes, or lead to the

granting of all colorable warrant requests.” 468 U.S. at

917, 104 S.Ct. at 3417 (emphasis added). But it is naive to

conclude, in my opinion, that admitting evidence seized

pursuant to a defective command authorization will not

do so.

The untempered reality is that military officers’ profes-

sional incentives when faced with requests for search

authorizations are much more complex than are those of

judicial officers. Unlike magistrates—civilian or mili-

tary—“[a] military commander has responsibilities for

34a

investigation and for law enforcement that a magistrate

does not possess. Also, he has responsibilities for the

welfare and combat readiness of the personnel under his

command.” United States v. Stuckey, supra at 359. Ac-

cord United States v. Morris, 28 MJ 8, 12 (CMA 1989)

(Everett, C.J.); United States v. Queen, 26 MJ 136, 141-42

(CMA 1988) (Everett, C.J.). Thus, | do not criticize com-

manders who have mixed emotions when search authori-

zations are requested; rather, I merely recognize that their

incentives are not so clear and simple as those of judicial

officials—simply because their responsibilities are more

complex.

This should not be read to infer that I believe that a//

commanders gua commanders do not meet the Supreme

Court’s expectations of the detached and neutral judicial

officers whose probable-cause determinations are entitled

to be executed in reasonable good faith. Necessarily, this

judgment must be ad hoc because, just like the facts

underlying the probable-cause decision itself, the circum-

stances vary from case to case. In other words, a com-

mander’s authorization is not ineligible per se from serving

as the basis for application of a good-faith exception;

neither, however, is it as fully and automatically entitled

to the deference in that regard as a warrant from a magi-

Strate, civilian or military, would be.

As the proponent of the evidence, it is trial counsel’s

responsibility, in the face of a proper defense objection to

the evidence, not only to show existence of probable cause

if that is the Government’s primary basis of admissibility

but also, alternatively, to demonstrate an adequate factual

basis upon which the military judge and appellate courts

may conclude that the particular commander in that case

is the sort of official that the Supreme Court in Leon had

in mind—one who is akin to a “judicial officer[ ]” with

“no stake in the outcome of particular criminal prosecu-

4

“2g

E

3

35a

tions.” United States v. Leon, 468 U.S. at 917, 104S.Ct. at

3417. It is only this sort of commander who, in practical

reality, will not be deterred by the exclusionary rule; thus,

it is only this sort of commander whose authorizations are

entitled to be relied upon in reasonable good faith. See id.

at 927-28, 104 S.Ct. at 3422-23 (Blackmun, J., concur-

ring).

Reasonable good-faith reliance

Given a commander whose authorization is entitled to

the “great deference” to which a magistrate’s warrant is en-

titled, evidence yielded by “objectively reasonable” en-

forcement of that commander’s subsequently invalidated

search authorization will not be suppressed. See id. at 919,

104 S.Ct. at 3418. As the Supreme Court acknowledged,

this “assumes, of course, that the officers properly exe-

cuted the warrant and searched only those places and for -

those objects that it was reasonable to believe were

covered by the warrant. Cf. Massachusetts v. Sheppard,

[468 U.S. 981, 989, n. 6, 104 S.Ct. 3424, 2428 n. 6, 82

L.Ed.2d 737]. . .” 468 U.S. at 918 n. 19, 104.S.Ct. at 3418

n. 19.

Adding flesh to the “objectively reasonable” enforce-

ment of an authorization, the Supreme Court had this to

say in Leon:

. . . “[A] warrant issued by a magistrate normally suf-

fices to establish” that a law enforcement officer has

“acted in good faith in conducting the search.” United

States v. Ross, 456 U.S. 798, 823, n. 32, 102 S.Ct.

2157, 2172, n. 32, 72 L.Ed.2d 572 (1982). Neverthe-

less, the officer’s reliance on the magistrate’s prob-

able-cause determination and on the technical suffi-

ciency of the warrant he issues must be objectively

reasonable, cf. Harlow v. Fitzgerald, 457 U.S. 800,

36a

815-819, 102 S.Ct. 2727, 2736-2738, 73 L.Ed.2d 396

(1982), and it is clear that in some circumstances the

officer will have no reasonable grounds for believing

that the warrant was properly issued.

Suppression therefore remains an appropriate

remedy if the magistrate or judge in issuing a warrant

was misled by information in an affidavit that the af-

fiant knew was false or would have known was false

except for his reckless disregard of the truth. Franks

v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d

667 (1978). The exception we recognize today will also

not apply in cases where the issuing magistrate wholly

abandoned his judicial role in the manner condemned

in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99

S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such circum-

stances, no reasonably well trained officer should rely

on the warrant. Nor would an officer manifest objec-

tive good faith in relying on a warrant based on an af-

fidavit “so lacking in indicia of probable cause as to

render official believe in its existence entirely unrea-

sonable.” Brown vy. Illinois, 422 U.S., [590] at

610-611, 95 S.Ct. [2254] at 2265 [45 L.Ed.2d 416]

[(1975)] (POWELL, J., concurring in part); see //-

linois v. Gates, supra, [462 U.S. 213] at 263-264, 103

S.Ct. at 2345-2346 [(1983)] (WHITE, J., concurring

in judgement). Finally, depending on the circum-

stances of the particular case, a warrant may be so

facially deficient —/.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. Cf. Massachusetts v. Sheppard, [468 U.S.

981], at 988-991, 104 S.Ct. 3424, at 3427-3429

[(1984)].

468 U.S. at 922-23, 104 S.Ct. at 3420 (feotnotes omitted).

SA eaters AS.

37a

B

Applying these principles, I agree with the majority that

. the good-faith exception applies in this case. The record

reflects that Major Harrison met the Supreme Court’s vi-

sion of “a detached and neutral ... judicial officer”

whose probable-cause determinations are entitled to “great

deference.” In the absence of any evidence to the contrary,

I will not suppose otherwise.

I pause, however, to reiterate the principal opinion’s

acknowledgement of Major Harrison’s apparent relative

lack of familiarity with the notion of probable cause. 35

MJ at 42. Under some circumstances, where an author-

izing official has such an infirm basis to make his judg-

ment, that official might well fall short of one whose

judgments are entitled to “great deference.” Major Har-

rison, however, sought the opinion of the staff judge ad-

vocate as to the sufficiency of this information to support

probable cause, and the staff judge advocate advised him

that it met that standard. While not a prototype and while

the military ought to ensure that anyone to whom it gives

the authority to order searches is appropriately trained to

perform that mission, just like any other mission, | am

satisfied that any deficiency as to Major Harrison’s ability

to perform as a “judicial officer” was thus remedied.

Candidly, I have some pause in this case as to the rea-

sonable good-faith reliance of the law enforcement of-

ficers on that authorization. Sergeant McKinnon, who

made the request of Major Harrison, did not give Har-

rison all the information that he had—that is, that the

cashiers’ information was given 5 weeks earlier. He also

did not tell Harrison anything about the cashiers them-

selves upon which Harrison might judge the quality of

their information. However, I see no indication in the

record that these omissions were a conscious effort to

38a

affect Harrison’s evaluation of probable cause, so I con-

clude that they do not show an absence of objective good

faith of the executing officials. Moreover, I see no indica-

tion of any other reason to believe that the law enforce-

ment officers did not act with objective reasonableness in

relying on and in carrying out the authorization.

39a

APPENDIX B

UNITED STATES AIR FORCE COURT

OF MILITARY APPEALS

ACM 828069 (f rev)

UNITED STATES

V.

STAFF SERGEANT FRANK J. LOPEZ, FR546-17-6910

UNITED STATES AIR FORCE

9 November 1993

Sentence adjudged 13 September 1989 by GCM con-

vened at Torrejon Air Force Base, Spain. Military Judge:

Dennis L. Olson. (sitting alone).

Approved sentence: Bad-conduct discharge and reduc-

tion to E-1.

Appellate Counsel for the Appellant: Colonel Terry J.

Woodhouse and Captain Robert A. Parks.

Appellate Counsel for the United States: Colonel Jef-

fery T. Infelise and Captain Thomas E. Wand.

Before

DIXON, GRUNICK and PEARSON

Appellate Military Judges

40a

UPON FURTHER REVIEW

PER CURIAM:

This case is here for further review. Pursuant to his

pleas, appellant was convicted at a general court-martial

on 13 September 1989 of possessing and using of too many

ration cards and of stealing ration cards. His approved

sentence was a bad-conduct discharge and reduction to the

grade of E-1.

At trial, appellant moved to suppress the ration cards on

the grounds they had been illegally obtained. When his

suppression motion was denied, he entered conditional

pleas of guilty to all charges and specifications. On 23

April 1991, this Court held the trial judge erred in denying

the motion to suppress.' Concluding the good faith excep-

tion did not apply to this case because the commander who

authorized the search was not neutral and detached, this

Court set aside the conviction and sentence.

On certification, the United States Court of Military

Appeals reversed our decision and remanded the case for

further review by this Court.? In acting on the certified

issue, all five judges concurred the good faith exception

was applicable to the search authorized by appellant’s

commander.

Consistent with the decision by the United States Court

of Military Appeals in this case, we conclude that the find-

ings and sentence are correct in law and fact and that no

error prejudicial to the substantial rights of the appellant

' 32 M.J. 924 (A.F.C.M.R. 1991).

> 35 M.J. 35 (C.M.A. 1992).

4la

was committed. Accordingly, the findings of guilty and

the sentence are

AFFIRMED.

[SEAL OMITTED]

OFFICIAI

‘S/ Naomi D. Williams

NAoMi D. WILLIAMS

Technical Sergeant, USAF

Chief Court Administrator, AFCMR

42a

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 28069.

UNITED STATES

Vv.

STALE SERGEANT FRANK J. Lopez, FR 546-17-6910,

UNITED STATES AIR FORCE

Sentence Adjudged 13 Sept. 1989.

Decided 23 April 1991.

Accused, staff sergeant, United States Air Force, was

convicted by general court-martial, Torrejon Air Base,

Spain, Dennis L. Olson, J., on conditional guilty pleas to

possession and use of too many ration cards and theft of

ration cards. On review, the United States Air Force Court

of Military Review, Rives, J., held that good-faith excep-

tion to exclusionary rule did not apply to search of ac-

cused’s dormitory room authorized by commander with

obvious interest in investigation.

Dismissed.

Pratt, Senior Judge, filed separate opinion concurring

in result.

O’Brien, C.J., filed dissenting opinion.

Appellate Counsel for the Appellant: Colonel Richard

F. O’Hair and Major Ronald G. Morgan.

Appellate Counsel for the U.S.: Colonel Joe R. Lam-

port, Colonel Robert E. Giovagnoni, Lieutenant Colonel

Brenda J. Hollis, Major Terry M. Petrie, Captain Brian

C. Newby, and Captain Thomas E. Wand.

43a

Before O’BRIEN, PRATT and Rives, Appellate Military

Judges.

OPINION OF THE COURT

Rives, Judge:

Staff Sergeant Frank Lopez’ commander suspected him

of an offense; he guessed that evidence of the crime may

be in Lopez’ dormitory room. The commander’s suspi-

cions did not rise to the level of a probable cause basis to

believe the evidence would be in the room. Nonetheless,

under cover of the commander’s search authorization,

lopez’ room was searched and evidence was seized. Facing

the issue of whether the “good faith” exception to the ex-

clusionary rule will validate the search and permit the evi-

dence to be admitted, we hold that it does not.

Lopez was tried by a general court-martial composed of

officers at Torrejon Air Base, Spain. Charged with posses-

sion and use of too many ration cards and with the theft of

three ration cards (in violation of Articles 92 and 121,

UCMSJ, 10 U.S.C. § 892, 951), Lopez moved to suppress

the cards because they had been illegally obtained. When

his suppression motion was denied, he entered conditional

pleas of guilty to all charges and specifications. His ap-

proved sentence extends to a bad conduct discharge and

reduction to airman basic.

i

Factual Background

Lopez served as the noncommissioned officer in charge

of his unit orderly room, the 401st Aircraft General

Squadron (AGS). His responsibilities included issuing ra-

tion cards to members of his squadron. The ration cards

enabled authorized patrons to purchase items, in limited

44a

quantities, at the various tax-exempt shops run by the U.S.

military in Kurope.

On 4 April 1989, the Air Force Office of Special In-

vestigations (OSI) at Torrejon received a complaint that

lopez may have been abusing his ration card privileges.

After OSI apparently took no action on the report, the

complaint was forward to the security police on 10 May

1989. The security police investigated the allegation and

then briefed Major Harrison, the 401 AGS commander,

on Ill May 1989. The information from the security police

was not provided to Harrison in writing or under oath.

Harrison was told that Lopez had come to the attention

of a cashier at the commissary because he made purchases

through her line on an unusually frequent basis. Also, she

noted that he had signed his own ration card as the certify-

ing official. The governing regulation does not preclude

Lopez from certifying his own ration card. The cashier

believed that Lopez was using more than one ration card.

A second commissary cashier also told the investigators

that she believed Lopez was using more than one ration

card,

Harrison coupled this information with his knowledge

that Lopez had access to the squadron’s ration cards and

with his belief that Lopez had recently had financial prob-

lems. After consulting with the base staff judge advocate,

Harrison orally authorized a search of Lopez’ person, of-

fice desk, automobile, and dormitory room on base.

Lopez was called from the nearby orderly room to Har-

rison’s office. After being told that his commander had

authorized the search, Lopez, said: “Okay,” and then he

cooperated with the investigators in their search. The in-

vestigators found one ration card in Lopez’ wallet and

three other cards in his dormitory room. After the search,

the authorization was reduced to writing.

45a

Before authorizing the search, Harrison was not told

that Lopez’ suspicious conduct had been reported to OSI

in early April and that the cashiers had simply told the

security police about the observations they had made some

five weeks before and earlier. He was not given the names

of the cashiers or provided any other information about

them, and the cashiers did not provide written statements.

Findings of the Military Judge

Trial defense counsel moved to suppress the three ration

cards which were seized from Lopez’ dormitory room.

After considering evidence on the motion,- the military

judge ruled that the seizures were “not sustainable either as

consent or probable cause, but that the search and seizure

of the ration cards is sustainable applying the good faith

exception” of Mil.R.Evid. 311(b)(3)(C). The judge then

provided essential findings on the evidentiary matters.

Mil.R.Evid. 311(d)(4); R.C.M. 905(d).

Although the trial counsel argued that Lopez had con-

sented to the search, the military judge found that the

government had not established consent by clear and con-

vincing evidence. Mil.R.Evid. 314(e)(5). When first con-

fronted by the investigators, Lopez was told that his com-

mander had already authorized the search. He was not

formally or specifically asked to consent to the search. We

agree that Lopez’ cooperation in the search merely

amounted to acquiescence or submission to authority. See

United States v. Middleton, 10 M.J. 123, 132-33 (C.M.A.

1981); Mil.R. Evid. 314(e)(4).

The military judge also decided the evidence was insuffi-

cient “to show by a preponderance of the evidence that the

search authorization was based on probable cause.” Har-

rison had been told of suspicions by two commissary

cashiers that Lopez seemed to be making excessive pur-

46a

chases and that he may have been using more than one ra-

tion card. He was told that one cashier questioned Lopez’

right to sign his own card as certifying official. However,

he was not informed when the suspicion activity had oc-

curred, nor was he told of the last time that Lopez had

used a suspected fraudulent card. The judge found that

“no information was presented concerning the identity or

the reliability of the complaining cashiers nor were their

allegations corroborated in any way.” He concluded that it

was not reasonable to assume that Lopez had the cards in

his dormitory room on the date the search authorization

was given, “considering the unknown or unexpressed

period of time since [Lopez had] last used a suspect card in

the commissary.” We agree that this search cannot be sus-

tained on probable cause grounds.

Completing his essential findings, the military judge

determined that the ration cards were admissible under the

“good faith” exception to the exclusionary rule. He found

that the investigators had acted reasonably in bringing the

facts as they knew them to the attention of Harrison in

order to seek a search authorization. He decided that Har-

rison “acted in a neutral and detached manner in analyzing

the information presented to him, including seeking the

-legal advice of the staff judge advocate.” The judge ruled

that both Harrison and the investigators acted in a reason-

able and responsible manner, and that the search authori-

zation had sufficient “indicia of probable cause” to sup-

port admission of the ration cards under the good faith ex-

ception. Accordingly, he decided that Mil.R.Evid.

311(b)(3)(C) “applies in this case and the good faith excep-

tion does apply to a commander.”

We do not agree that the good faith exception applies to

this commander under the facts of this case.

47a

The Fourth Amendment contains powerful language,

offering guarantees against “unreasonable searches and

seizures.” However, like a steel gate that has no lock, its

protections become illusory without an enforcement

mechanism. The exclusionary rule is the judicially created

remedy to protect an accused against an illegal search and

seizure. Long ago, the Supreme Court observed that with-

out an exclusionary rule “the 4th Amendment . . . is of no

value, and .. . might as well be stricken from the Con-

stitution.” Weeks v. United States, 232 U.S. 383, 393, 34

S.Ct. 341, 344, 58 L.Ed. 652 (1914).

The primary purpose of the exclusionary rule is to deter

illegal police conduct. United States v. Calandra, 414 U.S.

338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); 1 W. LaFave,

Search and Seizure, § 1.1(f) at 16-20 (2d ed. 1987).

Evidence that is otherwise competent and reliable becomes

inadmissible when it is improperly seized. By denying the

admission of illegally seized evidence, the suppression doc-

trine compels “respect for the constitutional guaranty in

the only effective available way — by removing the incen-

tive to disregard it.” Elkins v. United States, 364 U.S. 206,

216, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).

The rationale of the exclusionary rule is appealing. It

restores the status quo, placing the government in the

Same position it would have been had no illegal search and

seizure occurred. What better way to deter official mis-

conduct than to suppress evidence that is acquired by un-

constitutional means?

The rule has been widely assailed, however, as a draco-

nian remedy that is not always necessary. Cardozo provid-

ed the classic attack: “The criminal is to go free because

the constable has blundered.” People v. Defore, 242 N.Y.

13, 21, 150 N.E. 585, 587 (1926). cert. den., 270 U.S. 687,

48a

46 S.Ct. 353, 70 L.Ed. 784 (1926). Ultimately, exceptions

have been adopted to preclude unwarranted mechanical

application of the exclusionary rule.

The Supreme Court established the “good faith” excep-

tion to the exclusionary rule in United States v. Leon, 468

U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In that

case, police officers had obtained a warrant to search for

drugs based on an informant’s tip. Although the warrant

seemed valid on its face, it was later found defective for

lack of probable cause. Lower courts held the evidence to

be inadmissible under the exclusionary rule. The Supreme

Court disagreed, deciding that “the officers’ reliance on

the magistrate’s determination of probable cause was ob-

jectively reasonable, and application of the extreme sanc-

tion of exclusion is inappropriate.” /d. at 929, 104S.Ct. at

3422. The underlying premise of Leon is that the exclu-

sionary rule is designed to deter police misconduct, and

that purpose is not advanced when the police act in good

faith reliance on a judicial officer’s determination of prob-

able cause.

The Supreme Court recognizes the military as “a special-

ized society separate from civilian society.” Parker v.

Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d

439 (1974); see also United States v. Kalscheuer, 11 M.J.

373, 376 (C.M.A. 1981). Some accommodations have

been permitted in adapting constitutional protections to

the military. Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045,

97 L.Ed. 1508 (1953); United States v. Jacoby, 11 U.S.C.

M.A. 428, 29 C.M.R. 244 (1960).

In the civilian context, the focus of the Fourth Amend-

ment is on the warrant requirement. Search warrants must

be in writing, under oath, and issued by a magistrate.

49a

Warrants are not required in the military; the focus here is

on the reasonableness of a search. Search authorizations

may be oral, need not be under oath, and may be author-

ized by a commander. United States v. Stuckey, 10 M.J.

347 (C.M.A. 1981). Absent an exception, the requirement

to base a search on probable cause remains. See, e.g., New

Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d

720 (1985); United States v. Morris, 28 M.J. 8, 15

(C.M.A. 1989).

While critics deride the exclusionary rule as a judge-

made rule not mandated by the constitution, probable

cause is the constitutionally-imposed standard for

searches. Justice Traynor observed that the criminal does

not go free because the constable blundered, but because

the Constitution prohibits “securing the evidence against

him.” People v. Cahan, 282 P.2d 905, 914 (1955). The

criminal would also go free if the evidence had not been il-

legally seized in the first place.

Here, Major Harrison was not presented with sufficient

information to lawfully authorize the search of Lopez’

. dormitory room. He acted on mere suspicion. See United

States v. Brown, 10 U.S.C.M.A. 482, 489, 28 C.M.R. 48,

55 (1959). Quite simply, he authorized a search of every

area that was under Lopez’ control: his person, his office

desk, his automobile, and his dormitory room. Harrison

was not told that the information from the cashiers was at

least five weeks old, nor was he told when Lopez had last

used a suspected fraudulent card. He was provided no in-

formation on the identity or reliability of the cashiers, nor

was their information under oath. While not dispositive,

these factors are relevant to the “totality of the circum-

stances” probable cause determination. See Iilinois v.

Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983); United States v. Queen, 26 M.J. 136, 139 (C.M.A.

1988); United States v. Tipton, 16 M.J. 283 (C.M.A.

50a

1983). The military judge correctly decided that probable

cause was lacking. We next address the larger issue —

whether the good faith exception should be applied to

searches authorized by commanders.

IV

The applicability of Leon to searches authorized by

commanders has been discussed but not resolved. In

United States v. Morris, supra, each judge on the Court of

Military Appeals wrote separately. Chief Judge Everett

would apply the good faith exception only to those

searches authorized by military judges or military magi-

strates; Judge Cox would review the reasonableness of a

commander’s acts, without considering application of the

good faith exception; finally, Judge Sullivan would simply

adopt the good faith exception of Leon and Mil.R.Evid.

311(b)(3KC). 28 M.J. at 12, 14, and 19. See also United

States v. Brothers, 30 M.J. 289, 293 (C.M.A. 1990);

United States v. Queen, supra; United States v. Postle, 20

M.J. 632 (N.M.C.M.R. 1985).

The Supreme Court has observed that the “scope of the

Court’s good-faith exception is unclear.” //linois v. Krull,

480 U.S. 340, 366, 107 S.Ct. 1160, 1176, 94 L.Ed.2d 364

(1987) (O’Connor, J., dissenting). One point that was clear

in Leon, however, is that the-exclusionary rule was de-

signed to deter the police, not the magistrate who author-

izes a search. The Court had no real concern that judicial

officers would use the good faith exception to authorize

unconstitutional searches. “Judges and magistrates are not

adjuncts of the law enforcement team; as neutral judicial

officers, they have no stake in the outcome of particular

criminal prosecutions.” Leon, 468 U.S. at 917, 104 S.Ct.

at 3417. What is true for judicial officers, however, does

not necessarily apply to commanders. See United States v.

Sla

Johnson, 21 M.J. 553, 557, n. 2 (A.F.C.M.R. 1985): rev'd

on other grounds, 23 M.J. 209 (C.M.A. 1987).

The Manual for Courts-Martial provides that searches

can be authorized by “an impartial individual in the fol-

lowing categories:” a commander of the person or place to

be searched, a military judge, or a military magistrate.

Mil.R.Evid. 315(d) (emphasis added). Distinctions have

been made in deciding how much deference to give the

search authorizing official. This Court recently noted that

“a commander’s decision to search is subject to closer

scrutiny than those of a military judge or magistrate.”

United States v. Sloan, 30 M.J. 741, 746 (A.F.C.M.R.

1990).

The good faith exception is predicated on the assump-

tion that a search authorization will come from a disinter-

ested judicial officer. See McCommon v. Mississippi, 474

U.S. 984, 106 S.Ct. 393, 88 L.Ed.2d 345 (1985) (cert.

denied) (Brennan, J., dissenting). By the very nature of

their positions and responsibilities, commanders simply do

not possess the qualities of disinterested judicial officers.

It is not a criticism to note that commanders will always

have a stake in the outcome of criminal investigations

within their command. When supported by probable

cause, the ability of commanders to authorize searches

does comport with “the Fourth Amendment’s basic norm

of reasonableness.” Stuckey, supra, 10 M.J. at 361. Com-

manders have the power to search because of their unique

responsibilities for the people and property under their

command. Kalscheuer, supra, 11 M.J. at 376.

The judicial powers of commanders may conflict with

their law enforcement responsibilities; certainly, there is a

tension between the two. The same commander who deter-

mines probable cause must also maintain discipline, in-

vestigate crime, enforce the law, and authorize prosecu-

tions. See United States v. Ezell, 6 M.J. 307, 317, 318

52a

(C.M.A. 1979). The conflicting judicial and prosecutorial

roles “create a palpable possibility that commanders, in-

fluenced by their law enforcement role, will perceive prob-

able cause where none exists or that, in determining the

constitutional reasonableness of a search, they will give in-

- sufficient weight to legitimate privacy interests.” Vienna

and Chema, United States v. Leon: Good Faith and the

Military Commander, 25 A.F.L.Rev. 95, 103 (1985).

Fourth Amendment requirements are satisfied when the

commander can impartially determine probable cause.

They are violated when the commander merely serves as

another member of the team engaged in the “often com-

petitive enterprise of ferreting out crime.” Johnson v.

United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed.

436 (1948).

Our concern rises when a commander authorizes a

search in violation of an accused’s Fourth Amendment

rights. Broadly applying the good faith exception to com-

manders would be tantamount to eliminating the exclu-

sionary rule. This in turn would reduce the motivation for

commanders to find probable cause before authorizing a

search. It would also “encourage them to repeat their

mistakes, or lead to the granting of all colorable warrant

requests.” Leon, 468 U.S. at 917, 104 S.Ct. at 3418. See

generally Fountain, The “Good Faith” Exception to the

Commanders’ Search Authorization: An Unwarranted Ex-

ception to a Warrantless Search, The Army Lawyer,

August 1988, at 29, 32.

The rule of Leon must be limited to appropriate cases,

or the good faith exception will swallow the exclusionary

rule. Commanders are complementary members of the law

enforcement team. They do have stakes in the outcome of

prosecutions. Some commanders would find little motiva-

tion to ever bother with the constitutional requirement of

probable cause if a search could be authorized without it

53a

and the seized evidence would later be validated and ad-

mitted under the good faith exception. The Fourth

Amendment may be ignored with impunity unless a penal-

ty will result from a commander’s failure to impartially

consider the issue of probable cause.

Commander’s search authorizations will be reviewed

with great care. See MCM, App. 22, Mil.R.Evid. 31 1(b)(3)

(1984). Doing so here, we note that as a unit commander,

Major Harrison represents the lowest level of command.

We have no evidence that he had even the most rudi-

mentary Fourth Amendment training. Most compelling,

he was not “neutral and detached” as to this investigation.

His orderly room NCOIC, whose responsibilities included

issuing ration cards, was suspected of abusing the ration

control system. The commander had a clear, direct interest

in this investigation and in the outcome of the search. Ulti-

mately, he preferred the court-martial charges against

Lopez. When he demonstrates personal “involvement in

the investigative or prosecutorial process against the ac-

cused, the commander is devoid of neutrality and cannot

validly perform the functions” of a search-authorizing of-

ficial. Ezell, supra, 6 M.J. at 318-319.

Our decision today is not a per se prohibition against

applying the good faith exception to searches authorized

by commanders. Had this search authorization come from

the installation commander, and had that officer been

neutral and detached as to this investigation, the good

faith exception may well permit the evidence to be ad-

mitted. Certainly, had the search been authorized by a

military judge or military magistrate, we would apply the

good faith exception. See Air Force Regulation 111-1,

Military Justice Guide, paragraph 1-8, Change 3 (9 March

1990). :

While Leon was adopted for military practice in Mil.R.

Evid. 311(b)(3), we are not satisfied that it can be trans-

54a

posed to include every commander. See Krull, supra, 480

U.S. at 360, n. 17, 107 S.Ct. at 1172-73 n. 17. Unlike

judicial officers, commanders are not presumed to be

neutral and detached. Stuckey, supra, 10 M.J. at 361. Ex-

cept for those cases when the government can show the re-

quisite level of detachment by a particular commander, we

hold that the prosecution cannot benefit. from the good

faith exception to the exclusionary rule. See United States

v. Sharrock, 30 M.J. 1003, 1007 (A.F.C.M.R. 1990).

In this case, the existence of probable cause is very

tenuous. To admit the evidence under Leon would eviscer-

ate the Fourth Amendment safeguards. No apparent limits

would bind the commander or protect the servicemember.

Here, a commander with an obvious interest in the investi-

gation authorized a search without the probable cause

basis to support that invasion of the appellant’s privacy.

We draw the line at such an extension of the good faith ex-

ception. See generally Stevens, Examining the “Good

Faith” Exception to the Exclusionary Rule and Its Ap-

plication to Commanders’ Search Authorizations, The

Army Lawyer, June 1986, at 55.

The good faith exception will be available only when the

initial probable cause determination is made by a neutral

and detached individual. In civilian life, that person would

be a judicial officer. Searches authorized by military

judges and military magistrates will normally benefit from

the good faith exception. Searches authorized by com-

manders are not entitled to the same deference; the gov-

ernment must meet a difficult burden to show that a com-

mander has the requisite degree of impartiality.

The good faith exception does not apply in this case.

Since the findings of guilty were all predicated on the

fruits of an illegal search, a rehearing is not appropriate.

The findings of guilty and the sentence are set aside, and

the charges are

DISMISSED.

5Sa

PRATT, Senior Judge (concurring in the result):

| concur with Judge Rives’ conclusions that the search in

this case was not adequately founded on probable cause

and that the “good faith” exception to the exclusionary

rule should not apply under the facts of this case.

I write separately to express my concern and belief that,

in reaching his conclusion on the application of the “good

faith” exception in this case, Judge Rives did not go quite

far enough. I need not write at great length to express

myself on this issue, because my position is not a novel

one. I agree in full with the position and analysis of Chief

Judge Everett in his lead opinion in United States v. Mor-

ris, 28 M.J. 8 (C.M.A. 1989), wherein he appropriately

concluded:

. . unless and until the Supreme Court expands the

rationale of Leon, the good-faith exception should

only be applied in courts-martial where law enforce-

ment personnel have reasonably relied on warrants or

authorizations issued by military judges or military

magistrates.

Id. at 12. In my view, a commander, by the very nature of

his position and responsibilities, does not and cannot fit a

profile consistent with the delicate rationale on which the

“good faith” exception hinges. This belief in no way deni-

grates the position of “commander;” if anything, it more

fully credits the broad range of duties and responsibilities

inherent in the position. The fact remains that, in the con-

text of the “good faith” exception, a commander is simply

not in the same “kettle of fish” as a military magistrate or a

military judge.

O’BRIEN, Chief Judge (dissenting):

The majority finds that the military judge was right

when he found no probable cause for the search and

56a

wrong when he allowed appellant’s contraband ration

cards into evidence by applying the good faith exception to

the exclusionary rule (Mil.R.Evid. 311(b)(3)(C)). I dis-

agree and dissent.

The probable cause question is a close one, and I fully

acknowledge that the judge’s decision on that issue is quite

supportable. Although I believe the judge was wrong, had

that problem been standing alone, I might very well have

deferred to him and to the majority and concurred. The

majority’s refusal to apply the good faith exception, how-

ever, impels me to register my disagreement. The very

closeness of the question, in my opinion, supports appli-

cation of the good faith exception.

I PROBABLE CAUSE

Cashiers at the Torrejon Air Base commissary told a

security policeman by the name of Sergeant Stewart on 4

April 1989, that Sergeant Lopez was buying numerous car-

tons of cigarettes several times per week, and that he was

using different cards, and that some of them had been

issued and signed by Sergeant Lopez. This information

found its way to Sergeant McKinnon a security police in-

vestigator, who interviewed the cashiers and then pre-

sented the information to appellant’s commander, Major

Harrison, and asked him for a search authority, the mili-

tary equivalent to a warrant.

Major Harrison added this intelligence to his own

knowledge that Lopez had been in financial difficulty, and

that his job in the orderly room was to issue ration cards.

After consulting his chief legal advisor, the base staff

judge advocate, who advised him that probable cause ex-

isted, the commander thereupon issued the requested

authority. The investigators secured Lopez’s “consent,”

then, armed with both the commander’s authorization and

57a

the consent, they proceeded to search and find the contra-

band, the extra ration cards.

The military judge correctly decided that Lopez’s agree-

ment to this procedure was more acquiescence than con-

sent. However, he concluded further that the information

presented to the commander was insufficient to constitute

probable cause. The majority’s agreement with this deci-

sion is the first part of my dissent.

The military judge’s ruling that probable cause did not

exist was a legal conclusion, not a factual determination.

United States v. Wood, 25 M.J. 46 (C.M.A. 1987). In

reaching this result, the judge misapplied the law. Initially

I note that in his questioning, and explicitly in his findings,

the judge made much of the failure of the police to convey

any information to the commander concerning the names

or “reliability” of the two cashiers who had complained

about Lopez’s lavish use of a number of ration cards.

While reliability remains a factor to be considered, it was

not in issue here and itt appears that the judge was putting

the cashiers into the category of underworld informants

rather than “a concerned citizen reporting an illegal act to

a policeman.” United States v. Wood, supra; United

States v. Watford, 14 M.J. 719 (A.F.C.M.R. 1982);

United States v. Ozanich, 27 M.J. 585 (A.F.C.M.R.

1988).

The military judge found that the security police investi-

gator, “Tech Sergeant McKinnon, said that this activity by

the accused had been going on for a long period of time,

but did not state how many times, any general or specific

time period, and did not, more significantly, indicate

when the last time was that the accused allegedly used a

suspected bogus card.”

Sergeant McKinnon had transferred to Florida and did

not testify in the trial. (There was a short stipulation of his

testimony which related to the issue of consent, and the

58a

chronology of the complaint and investigation.) The only

person who gave testimony in this trial concerning what the

commander was told by McKinnon was the commander.

This same commander testified explicitly that he had been

briefed that Lopez’s unlawful activity was still going on.

If the military judge was making a finding that the evi-

dence of appellant’s wrongdoing was too “stale” to consti-

tute probable cause, I have to disagree. Even if a few

weeks had gone by since the last hard evidence of unlawful

ration card activity, there is no dispute that Lopez’s enter-

prise had gone on for a long period of time. The law is

clear that evidence of a continuing enterprise such as this

will support a finding of probable cause for a longer

period of time than a single instance of misconduct.

“Where the affidavit recites a mere isolated violation

it would not be unreasonable to imply that probable

cause dwindles rather quickly with the passage of

time. However, where the affidavit properly recites

facts indicating activity of a protracted and continu-

ous nature, a course of conduct, the passage of time

becomes less significant.”

United States v. Johnson, 461 F.2d 285 (10th Cir. 1972); 2

LaFave Search and Seizure, § 3.7(a) (2d ed. 1987).

In short, two cashiers observed Lopez using several ra-

tion cards, some issued by himself, to buy an unreasonable

amount of cigarettes over a long period of time. This in-

formation was conveyed to Lopez’s commander who put it

together with his own knowledge that Lopez had been in

financial difficulty, and that his job gave him access to ra-

tion cards. Whatever the period of time between the com-

plaint and the briefing to the commander, it was in my

opinion sufficiently recent to warrant the commander’s

conclusion that the instrumentalities of the crime, the ra-

tion cards, would still be in Lopez’s possession.

eeeeeeeeeEeEeEOowTUmee

59a

Finally, it was reasonable to search for the cards in the

barracks room where Lopez lived. “Using the ‘totality-of-

the-circumstances analysis’ authorized by //linois v. Gates,

462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527

(1983)... [I] am satisfied that the evidence made avail-

able to the commander who authorized the search was suf-

ficient to constitute probable cause. . . .” United States v.

Johnson, 23 M.J. 209 (C.M.A. 1987).

Ii THE GOOD FAITH EXCEPTION

If | had agreed with the judge that the search lacked

probable cause, | would agree with him also in allowing

the evidence discovered during the search into evidence

(denying a defense motion to suppress). If probable cause

had fallen short, this would be the perfect case to apply the

“good faith exception” to the exclusionary rule embodied

in Mil.R.Evid. 311. This exception provides:

(3) Evidence that was obtained as a result of an

unlawful search or seizure may be used if:

(C) The officials seeking and executing the

authorization or warrant reasonably and with

good faith relied on the issuance of the authori-

zation or warrani. Good faith shall be deter-

mined on an objective standard.

Mil.R.Evid. 311(b)(3)(C).

Finding that the commander had “a clear, direct interest

in this investigation and in the outcome of the search,” the

majority finds Major Harrison was not sufficiently

“neutral and detached” to allow application of the excep-

tion. They also pile onto the scale other factors relating to

the commander, such as the level of his command (unit

commander, “the lowest level of command”), and the

60a

absence from the record of any reflection of formal

“Fourth Amendment training.” I would note initially that

it the commander lacks neutrality and detachment, he is

disqualified from issuing a search authority in the first

place, and we do not even get to the question of any excep-

tions, “good faith” or otherwise. United States v. Ezell, 6

M.J. 307 (C.M.A. 1979).

As the majority points out, the Supreme Court gaveth

the exclusionary rule to deter police misconduct. Weeks v.

United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652

(1914); United States v. Calandra, 414 U.S. 338, 94 S.Ct.

613, 38 L.Ed.2d 561 (1974). It now taketh away the rule in

cases where there is no police misconduct, and all are

operating in good faith. United States v. Leon, 468 U.S.

897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The President

has blessed application of the rule to military law.

Mil.R.Evid. 311(b)(3)(C). Although there is as yet a dearth

of military case law dealing with application of the good

faith exception to searches under military law, it would ap-

pear that the Court of Military Appeals would include

search authorizations issued by commanders within the

scope of this rule. See United States v. Morris, 28 M.J. 8,

19 (C.M.A. 1989), (Sullivan, J., concurring in part and in

the result), United States v. Brothers, 30 M.J. 289, 293

(C.M.A,. 1990).

lt seems that the majority’s hesitation to allow Staff

Sergeant Lopez to suffer the legal consequences of his

unlawful activity is founded upon subjective concerns that

the good faith exception would “swallow” the exclusionary

rule if applied in cases such as this. Significantly, however,

their opinion does not contradict the judge’s finding that

both the police and the commander were operating in

good faith.

The majority is concerned that the commander was not

told precisely when the last time Lopez was seen using a

6la

bogus card, and, that he authorized a search of all areas

under appellant’s control. I believe the commander was

provided sufficient information. If there was any doubt,

what should a reasonable commander have done under

these circumstances? He should do exactly what Major

Harrison did here. He checked with his “general counsel,”

the staff judge advocate, who told him that he had prob-

able cause and to go ahead. It is difficult to conceive of a

case where good faith more palpably exists.

The answer to the majority’s concerns about the con-

tinued viability of the exclusionary rule after application

of the “good faith exception,” can be found both within

Leon, and the rule itself. The Supreme Court makes it

clear that if either the police or the magistrate do not have

a substantial basis for their actions, the exception will not

be applied. It is incumbent upon the prosecution to estab-

lish “good faith.” This they have done. | would affirm.

US GOVERNMENT PRINTING OFFICE 1994 — 384.506/24005