What the Court Decided in Guinsler

In January 2026, a federal grand jury in the Eastern District of Virginia indicted Army soldier James Isaac Guinsler on four counts of coercion and enticement of a child and one count of possession of child pornography. The case began when Snapchat’s automated system flagged two images of child sexual abuse material (CSAM) that Guinsler shared on April 29, 2024. The York-Poquoson Sheriff’s Office traced the Snapchat account to Guinsler through T-Mobile records, then obtained warrants for his Snapchat and iCloud accounts — both limited to a two-month window (April–May 2024). Those searches uncovered sexually explicit conversations with multiple females who identified themselves as minors.

Because Guinsler was on active duty in the Army, investigators referred the case to the Department of the Army Criminal Investigation Division (DACID). A military magistrate judge then issued a broad search authorization — covering Guinsler’s on-base residence, his vehicles, and all personal electronic devices — for all records relating to the charged Title 18 offenses and Article 134, UCMJ. Critically, the military authorization contained no temporal limitation whatsoever.

Guinsler moved to suppress all evidence from the military search, arguing the authorization’s lack of any time restriction violated the Fourth Amendment’s particularity requirement. The judge denied the motion on two independent grounds:

First, the court held the authorization satisfied particularity because it limited the search to records relating to specific statutory offenses. The Fourth Circuit recognizes that offense-specific language can fill gaps where a warrant otherwise lacks description. The court also credited Special Agent May’s affidavit explaining that forensic examinations of devices in CSAM cases routinely recover deleted files, digital footprints, and viewing history — and that contextual evidence from outside any fixed time window is necessary to understand how a device was used. Because the earlier cloud searches had revealed ongoing conduct beyond April 2024, the court found a broader temporal scope was justified.

Second, even if the authorization lacked particularity, the court held that the good-faith exception under United States v. Leon applied. None of the four Leon exceptions that would defeat good faith were present: the magistrate was not misled, the authorization was not facially deficient, and the supporting affidavit established adequate probable cause.

What Lattin Adds — and Why the Guinsler Court’s Silence Matters

The Guinsler court never mentioned United States v. Lattin, No. 22-0211 (C.A.A.F. Mar. 31, 2023). Lattin is not directly binding on a federal district court — it is a Court of Appeals for the Armed Forces (CAAF) decision applying the military exclusionary rule under Military Rule of Evidence 311 — but it is potentially informative on the very issues Guinsler presented.

In Lattin, an Air Force Office of Special Investigations agent obtained a search authorization for a soldier’s phone to look for text messages related to a specific alleged sexual assault. The authorization imposed no limits on what data on the phone could be examined. The agent then rummaged through the entire device — reading texts from contacts unrelated to the case, conversations predating the alleged assault by months, and even continuing the search after the authorization’s stated expiration date. She discovered texts suggesting an entirely separate sexual assault and opened a new investigation based on that discovery.

The AFCCA found the search authorization overbroad in violation of the Fourth Amendment — because it failed to identify the specific data for which probable cause existed — but upheld the military judge’s decision not to apply the exclusionary rule under M.R.E. 311(a)(3), which requires exclusion only when deterrence benefits outweigh costs to the justice system. CAAF affirmed, 3–2, finding no abuse of discretion in declining to suppress.

The two-judge dissent, however, forcefully argued that the agent’s conduct amounted to reckless or grossly negligent violation of Fourth Amendment rights, that the violation was systemic (the agent testified she had searched phones this way for two years and was taught to do so at a federal training center), and that the majority’s holding effectively granted law enforcement carte blanche to draft overbroad search authorizations for electronic devices.

The parallel to Guinsler is direct: both cases involve military search authorizations for electronic devices with no meaningful limitation on temporal scope; both involve CSAM or sexual assault investigations where investigators argued broad device access was necessary; and both raise the question of whether offense-specific language alone satisfies particularity when investigators examine years’ worth of device data. Had Guinsler‘s counsel cited Lattin — particularly the dissent’s analysis of what constitutes a facially deficient authorization and the systemic negligence argument — it could have strengthened the argument for suppression or at a minimum pressed the court to engage more seriously with the particularity question before retreating to good faith.

See, United States v. Lattin and Lattin v. United States.

Why Cave & Freeburg Is the Right Firm for Military Search Authorization Challenges

Defending a servicemember against charges rooted in a military search authorization requires attorneys who understand both the military justice system and federal constitutional law — because, as Guinsler itself confirms, the Fourth Amendment governs even when the search originates with military investigators.

Cave & Freeburg brings precisely that dual expertise. Attorney Phil Cave — editor of CAAFlog, the nation’s leading military justice legal blog, and the commentator who flagged the Guinsler/Lattin disconnect the same day the opinion was published — has spent decades litigating Fourth Amendment suppression issues in courts-martial, before CAAF, and in federal proceedings where military searches produce evidence used in civilian prosecutions. That deep familiarity with CAAF precedent, M.R.E. 311, and the interplay between military and federal evidentiary standards is exactly what cases like Guinsler demand.

Specifically, Cave & Freeburg can:

• Challenge overbroad military search authorizations — identifying when an authorization’s lack of temporal, geographic, or subject-matter limits makes it constitutionally defective under Lattin, Blakeney, and Groh v. Ramirez
• Contest the good faith exception — arguing that systemic law enforcement misunderstanding of digital search authority (as Lattin‘s dissent documented) is the kind of recurring negligence that defeats good faith reliance
• Coordinate civilian and military defense strategy — when DACID or NCIS investigations feed federal prosecutions, having counsel who navigates both systems prevents critical suppression arguments from falling through the cracks
• Leverage CAAF and circuit court precedent — including cases the government and courts overlook, as the Guinsler court’s silence on Lattin can demonstrate

If your servicemember faces charges built on a military search authorization — particularly one involving electronic devices — contact Cave & Freeburg for a case evaluation (703) 298-9562 or (917_ 701-8961 for a consultation. The constitutional issues are complex, the stakes are high, and the right arguments must be made at the trial level before appellate options arise.

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.

Shortly after Lattin comes Shields, another cellphone search case. The case presents dueling experts where, as you would expect, the Government expert was arguably given more “credibility” than the defense expert. When DCFL or government computer forensic “experts,” tell you they used the best and most current methods, you should not always believe that. Shields is a case where the DCFL used bad methods that ended up creating a fishing expedition. The court seemed to agree that the method wasn’t the best, but–it was good enough for government work.

In each case, the investigators were looking for texts, images, or data for a specific date or short time period. Forensic experts–good ones–will tell you that using proper methods readily available in the Atom or Cellebrite applications can make it relatively easy to create a narrow or focused search for items within a specified time period. Then, once the data is extracted for that time period, additional search criteria can narrow the data to that which is relevant to the reasons for the search. This, of course, is a little more time-consuming than a general search which, in light of Shields and Lattin, they might get away with.

These are matters–the law of the Fourth Amendment and issues of particularity and scope and cellphone or computer forensics that your military defense counsel needs to know about.

A jokester might suggest that the MCIO theme song might be ‘Scrolling Down the River on a Sunny Afternoon.’

If you do have leisure time on the river, you might take Digital Rummaging with you to read along the way.

Attorney Cave of Cave & Freeburg, LLP, is co-counsel in a petition for certiorari to be filed in Lattin v. United States.

Give us a call if you want to talk about representation by Cave & Freeburg, LLP as your military defense counsel.

The MCIO gets a “limited” or narrow consent, but then just goes ahead and looks at everything claiming “plain view” and inevitablity.

United States v. Crocker is a government appeal worth the read–NMCCA affirms suppression of much of the search and also the resultant confession.

[The military judge] determined that a reasonable observer would have understood the scope of Appellee’s consent to search to extend only to the messages between Appellee and LCpl DW from the Facebook Messenger application. The military judge ruled that Agent MS exceeded the scope of consent when he searched the images folder of the UFED report. Therefore, that search was unlawful and the suspected images of child pornography he discovered in the images folder were not in plain view. The military judge ruled that NCIS continued the illegal search and that even if Agent MS found the initial images in plain view, the follow-on actions of NCIS were not done to merely confirm the nature of the images but to expand the scope of the search by identifying several additional suspect images. Immediately after NCIS discovered additional images of suspected child pornography, Appellee was brought in for questioning and admitted to possessing child pornography and to sexually abusing his nephew. However, the military judge ruled that Appellee would not have made these confessions if he had not been confronted with the illegally obtained evidence. The military judge, sua sponte, determined that the evidence of suspected child pornography found on Appellee’s phone would not have been inevitably discovered because at the time of the unlawful searches, law enforcement was not pursuing any leads or evidence that would have inevitably led to the discovery of the images in a lawful manner. Finally, after balancing the deterrence of future unlawful searches or seizures against the costs to the military justice system of excluding the evidence, the military judge found that exclusion of the two images unlawfully discovered by Agent MS would not appreciably deter future unlawful searches.15 However, with respect to the additional evidence discovered by Special Agent SI, the military judge found that Special Agent SI compounded Agent MS’s unlawful conduct and that resulted in recurring negligence, at best, that must be deterred even at high cost to the justice system. Upon balancing, he found that the appreciable deterrence of further unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

We must take care not to confuse a bare bones affidavit with one that merely lacks probable cause. “Too often courts raise the Leon bar, making it practically indistinguishable from the probable cause standard itself.” Christian, 925 F.3d at 318 (Thapar, J., concurring). There must be daylight between the “bare bones” and “substantial basis” standards if Leon’s good-faith exception is to strike the desired balance between safeguarding Fourth Amendment rights and facilitating the criminal justice system’s truth-seeking function. See Leon, 468 U.S. at 906-07, 913-21; United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en banc). Thus, “[a]n affidavit cannot be labeled ‘bare bones’ simply because it lacks the requisite facts and inferences to sustain the magistrate’s probable-cause finding; rather, it must be so lacking in indicia of probable cause that, despite a judicial officer having issued a warrant, no reasonable officer would rely on it.” White, 874 F.3d at 497. Otherwise, “when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful,” excluding evidence recovered as a result of a technically deficient affidavit serves no useful purpose under the exclusionary rule. Davis v. United States, 564 U.S. 229, 238, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (quoting Leon, 468 U.S. at 909, 919). Before faulting an officer for executing a court-issued order, we must therefore find that the defects in the supporting affidavit were apparent in the eyes of a reasonable official. Leon, 468 U.S. at 921 (“[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.” (quoting Stone v. Powell, 428 U.S. 465, 498, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976) (Burger, C.J., concurring))).

Also,

The government didn’t even show a connection between the defendant and the alleged crime to get access to his subscriber information. “While courts may find the good-faith exception to apply when an application is ‘thin,’ a showing of some connection between the information sought and criminal investigation is required. See e.g. United States v. Wright, 339 F. Supp. 3d 1057, 1062 (D. Nev. 2018) (thin factual summary showed the connection between defendant and the phone number known as co-defendant’s before, during, and after a robbery). Here, the application fails to meet even that low bar. The Court agrees with the magistrate judge that ‘[t]he good-faith exception does not apply because the supporting affidavit was so lacking that is was unreasonable for the agents to rely on the order stemming from it.’ R&R (Doc. 115, p. 5).” Motion to suppress granted. United States v. Moreno-Vasquez, 2020 U.S. Dist. LEXIS 42047 (D. Ariz. Mar. 10, 2020).

Here is an interesting opinion from the Fourth Circuit about “taint teams.” The Fourth is not generally known as a defense friendly court.

4th Circuit Court of Appeals Opinion 31 October 2019

In re: Search Warrant [U.S.A. v. ‘Under Seal’] No. 19-1730.P The appellant in these proceedings is a Baltimore law firm (the “Law Firm”) that challenges the government’s use of a so -called “Filter Team”-—created ex parte by a magistrate judge in the District of MD & comprised of federal agents & prosecutors-—to inspect privileged attorney-client materials … The Law Firm requested that the district court enjoin the Filter Team’s review of the seized materials, invoking the attorney-client privilege & the work-product doctrine. When the court denied its request, the Law Firm pursued this appeal. As explained below, we are satisfied that use of the Filter Team is improper for several reasons, including that, inter alia, the Team’s creation inappropriately assigned judicial functions to the executive branch, the Team was approved in ex parte proceedings prior to the search & seizures, & the use of the Team contravenes foundational principles that protect attorney-client relationships. We therefore reverse & remand.

Full Text: http://www.ca4.uscourts.gov/opinions/191730.P.pdf

The Georgia Supreme Court ruled that the retrieval of electronic automobile data from an electronic data recording device (e.g., airbag control modules) without a warrant at the scene of a fatal collision was a search and seizure that implicates the Fourth Amendment, regardless of any reasonable expectations of privacy. (Mobley v. State, No. S18G1546 (Ga. Oct. 21, 2019)). The Court went on to hold that such retrieval of data was an unreasonable search and seizure forbidden by the Fourth Amendment, and that because the State failed to identify any recognized exception to the warrant requirement applicable to the facts, the trial court should have granted the motion to suppress. As such, the judgment of the Court of Appeals affirming the conviction of the defendant for vehicular homicide was reversed.

Without something to go on, the court declines to ascribe a supposed error in an address as a mere typo. Moreover, the affidavit fails to provide any nexus to defendant and the place to be searched, and the good faith exception is inapplicable. The court even finds the issuing judge failed to perform his or her judicial function in evaluating the affidavit. Andrews v. District of Columbia, 2019 D.C. App. LEXIS 336 (Aug. 15, 2019): (1) The probable cause here was thin, and it was based on a CI’s credibility. The officer omitted important information to the CI’s credibility. This entitles him to at least a Franks hearing on remand. (2) A photograph of the motel room during the search shows the time as 25 minutes before the search warrant was issued. Whether the motel room clock was correct or not is a matter of speculation in light of the testimony, which the court credits instead. [What person has stayed in a hotel room where the clock was always correct? Nobody.] United States v. Clark, 2019 U.S. App. LEXIS 24332 (7th Cir. Aug. 15, 2019).

Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of voluntariness are likely to be impaired by a systematic bias in social perception. Fact finders are likely to underappreciate the degree to which suspects feel pressure to comply with police officers’ requests to perform searches. These findings suggest that decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indicates that a key justification for suspicionless consent searches—that they are voluntary—relies on an assessment that is subject to bias. The results thus provide support to critics who would like to see consent searches banned or curtailed, as they have been in several states. The results also suggest that a popular reform proposal—requiring police to advise citizens of their right to refuse consent—may have little effect. This corroborates previous observational studies that find negligible effects of Miranda warnings on confession rates among interrogees, and little change in rates of consent once police start notifying motorists of their right to refuse vehicle searches. We suggest that these warnings are ineffective because they fail to address the psychology of compliance. The reason people comply with police, we contend, is social, not informational. The social demands of police-citizen interactions persist even when people are informed of their rights. It is time to abandon the myth that notifying people of their rights makes them feel empowered to exercise those rights.

To get a search warrant for home surveillance equipment, the affidavit for the warrant has to show some inference or fact that there is, in fact, one to be found there. The mere fact they are a lot cheaper these days isn’t enough to get one. Foreman v. State, 2018 Tex. App. LEXIS 7264 (Tex. App. – Houston (14th Dist.) Aug. 31, 2018): The parties have not cited, nor have we found, a case in which the Court of Criminal Appeals has determined under what circumstances a magistrate could reasonably infer that an electronic device exists in a particular location. This court has required specific facts to support an inference that those devices exist before we have allowed seizure or search of electronic devices pursuant to a warrant. This is demonstrated by our jurisprudence surrounding the searches of computers/cameras and cellphones.

Take the trouble to closely read an MCIO / military search authorization for facts. There will be a lot of “I’ve been trained” and in my one or two case experience, and stuff.

That’s the bait for MCIO fishing expeditions into your privacy that uninformed commanders buy into.

Why? On May 20, 2016, there was a change to Mil. R. Evid. 311. Now the military judge has to decide if the application of the exclusionary rule in the case of an unlawful search or seizure unless the military judge finds no deterrent effect of exclusion against the interests to be protected.

In a new appellate case from the Navy-Marine Corps Court of Criminal Appeals, United States v. Mottino, No. 201700153, 2017 CCA LEXIS 495 (N-M. Ct. Crim. App. Jul. 27, 2017) (unpub.), a three-judge panel of the Navy-Marine Corps CCA granted a prosecution appeal and reversed the military judge’s ruling suppressing evidence. They ruled that way because the military judge failed in her analysis and application of the law by not conducting the balancing test under Mil. R. Evid. 311(a)(3). This was a government appeal of the military judge’s ruling to exclude evidence. So the court remanded the case back to the trial judge so the parties and judge do get a do-over.

On the first bite, “the military judge concluded that “[s]uppression will serve the exclusionary rule’s goal of deterrence,” her ruling is devoid of any analysis regarding prong three. She did not quantify how appreciable that deterrence is, nor did she balance the benefits of such deterrence against the costs to the justice system, as required by Mil. R. Evid. 311(a)(3).

Unclear to me at the moment which side has the burden to show there is or isn’t a deterrent effect, and by what standard–some evidence, by a preponderance, or clearly and convincingly? Is the burden on the defense or the prosecution?

Hopefully, future litigation will determine this.

Got such an issue in your case? Give me a bell at 703-298-9562, or send an email.

NACDL Press Release: Nation’s Criminal Defense Bar Welcomes Passage by House of Representatives of the Email Privacy Act

Washington, DC (Feb. 6, 2017) – Today, the House of Representatives passed the Email Privacy Act (H.R. 387). This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that governs the treatment of electronic communications. The Email Privacy Act establishes that law enforcement officers must obtain a warrant to access the content of most electronic communications and cloud-stored content from third-party providers and eliminates the arbitrary rule that would allow the government to obtain emails older than 180 days with a subpoena. The bill passed overwhelmingly in the last Congress 419-0. The National Association of Criminal Defense Lawyers (NACDL) is heartened that the House of Representatives has strengthened the Fourth Amendment protections by ensuring that the government must obtain a warrant based on probable cause to access email content and other electronic communications and content stored in the cloud. NACDL remains concerned, however, that the bill as amended removes the requirement for law enforcement to provide notice to an individual that their electronic communications and documents stored online, such as emails, texts, photos, and notes, among others, have been obtained from their provider and provides no remedy to those whose communications may have been obtained improperly.

The unsophisticated suspect consents to the taking a search of their cell phone or computers.

Or, the MCIO get a search authorization.

Then investigators basically go on a fishing expedition for evidence of the current allegations, and anything else they can find–justifying anything else found on the “plain view” doctrine.

Voila–more charges.

So, we are about to find out from CAAF whether there are limitations on a search authorization of a cell phone or computer.

No. 16-0727/AF. U.S. v. James W. Richards IV. CCA 38346. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues: (Issue II) WHETHER THE 9 NOVEMBER 2011 SEARCH AUTHORIZATION WAS OVERBROAD IN FAILING TO LIMIT THE DATES OF THE COMMUNICATIONS BEING SEARCHED, AND IF SO, WHETHER THE ERROR WAS HARMLESS.

The opinion of the Air Force Court of Criminal Appeals (AFFCA) is here.

The actions of AFOSI were not perfect. Ideally, AFOSI should have: (1) more specifically listed in the search authorization application what aspects of Appellant’s electronic devices it wanted to search and what types of evidence it expected to find on these devices; (2) specified in the affidavit accompanying the search authorization that it was seeking evidence of videos and images, not just text-based communications, and why it believed this evidence was present; (3) better defined what types of evidence the forensics laboratory was expected to provide on the FDEs; (4) outlined a clear search methodology for searching the FDEs, starting in folders where evidence of the crime being investigated was most likely to be found; and (5) informed the military magistrate of AP’s recantations concerning the sexual relationship. “However, model investigative practice is not the Fourth Amendment standard. ” Nor for the OSI, but good enough for gubmint work.

No. 16-0727/AF. U.S. v. James W. Richards IV. CCA 38346. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE PANEL OF AFCCA THAT HEARD APPELLANT’S CASE WAS IMPROPERLY CONSTITUTED.

II. WHETHER THE 9 NOVEMBER 2011 SEARCH AUTHORIZATION WAS OVERBROAD IN FAILING TO LIMIT THE DATES OF THE COMMUNICATIONS BEING SEARCHED, AND IF SO, WHETHER THE ERROR WAS HARMLESS.

The recent decision of the Army Court of Criminal Appeals in a government appeal tells you why it’s important to check the warrant.

In United States v. Gurzynski, the court had before it a government appeal of a military judge’s decision to suppress evidence of a computer media search.

The accused was charged with “attempted sexual abuse of a child, abusive sexual contact with a child and other offenses related” to the allegations against the appellant.” The CID got a warrant to search for the related evidence. However, in the process the examiners came across a picture they believed was CP. Rather than stop and seek an expansion of the warrant, they went ahead and conducted a full search. Essentially,

Noting that search warrants must be specific, the military judge found the same was not true for child pornography because nothing in the warrant or supporting affidavit mentioned anything “even closely approximating evidence of child pornography.” See United States v. Carey, 172 F.3d 1268 (10th Cir, 1999). In this respect, the DA Form 2922, relied upon by SA CP, impermissibly expanded on the scope of the warrant. The military judge also noted the nature of the charges, given their plain statutory meaning, did not remotely contemplate the possession, creation or distribution of child pornography.

The military judge rejected application of the plain view doctrine.

Government appeal denied.

“exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”

Mil. R. Evid. 311(a)(3) (2016).

The change generated a hearty discussion about evisceration of an accused’s fourth amendment rights, although an observer over the years might wonder why the change took so long to be put in writing. We know that the underlying principle has been in use in federal courts at least since Herring v. United States, 555 U.S. 135, 152-153 (2009) and Davis.

How might litigation develop the rule. It seems generally accepted that the burden to show x is on the prosecution, not the defense. In taking an initial look at how the matter works in federal court, by serendipity I was pointed to United States v. Luke.

Despite the apparent breadth of the exclusionary rule, it is not without limitations. Indeed, suppression of evidence should not be a court’s first impulse. Real deterrent value is a necessary condition for exclusion, but it is not a sufficient one. The analysis must also account for the substantial social costs generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a last resort. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. Davis. Whether to exclude in this case is a complicated question. The Court has found that the neither the first warrant, consent, nor plain view authorized the seizure of Defendant’s computer equipment, and that, if only that seizure were at issue, Leon would not save it. But, the Court has also found that Defendant’s consent led to the perfectly permissible observations that law enforcement made during the search that were then relied upon to obtain the second warrant, which was also invalid. But, was law enforcement’s reliance upon those observations and other information when seeking the second warrant sufficient underLeon and following cases to save the search? Do the deterrence benefits of suppression outweigh its heavy costs as required by Herring and Davis? These are challenging questions, and the arguments presented to the Court thus far do not address all the relevant considerations. The law is complicated as well and may, or may not be, settled. In addition to the cases cited immediately above, the Court believes that a good starting point for counsel is United States v. Fugate, 499 F. App’x 514 (6th Cir. Sept. 7, 2012), which identifies certain relevant guiding Supreme Court and Sixth Circuit decisions. Also potentially helpful are the characteristics identified by Judge Wier in footnote 16 of his Recommended Disposition in United States v. Dawson, No. 5:13-CR-7-DCR-REW, 2013 U.S. Dist. LEXIS 51427, 2013 WL 1332573 (E.D. Ky. Mar. 15, 2013).

United States v. Luke, No. 6:15-CR-10-GFVT-HAI-1, 2016 U.S. Dist. LEXIS 70544, at *66-67 (E.D. Ky. May 31, 2016).

In the second development from the

the Courtissued a unanimous decision in United States v. Evans, __ M.J. __ (C.A.A.F. 2016), a case affecting UCMJ art. 31(b) rights. The court cleared up some confusion on which test an appellate court should apply to challenges to confessions.

violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation. This dichotomy then leads us to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in Kerr; and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the “harmless beyond a reasonable doubt” standard, as was done in United States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006).

And to be clear, the court tells us that, “any precedent to the contrary is hereby abrogated.” Slip op. at 7.

Your military defense counsel will in the future have to keep in mind that the courts of criminal appeals (CCA) will apply the following test to determine whether the admission of in violation purely of UCMJ art. 31(b) is harmless. This is a lower and less stringent test than the harmless beyond reasonable doubt test for a constitutional violation. When we talk constitutional violation we are talking Fifth Amendment issues such as a coerced confession or one where there has been no Miranda advice. The CCA will ask:

• What is the strength of the government’s case,
• what is the strength of the defense case,
• what is the materiality of the evidence in question, and
• what is the quality of the evidence in question.

The test is based on United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999).

Your military defense lawyer will aid your case on appeal if there is evidence and argument about the four factors listed above. This is basic considerations of issue preservation that any good trial military defense lawyer can address, to aid your military appellate lawyer.

So, is military law devaluing a military members rights, or is the law adjusting to reality–almost a no harm-no foul approach? Perhaps the reality argument applies best to how an invalid search will be treated. It remains to be seen whether the new Rule 311 addition will affect the current parsimony of trial judges in granting suppress of evidence seized in a search.

These rules then will apply at the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, and the other Service CCA’s.

A responsible law enforcer would take the information to get a search warrant or command search authorization. But that doesn’t always happen. What does happen is that the law enforcer or someone in command goes and looks for themselves. The question then becomes whether that is a search or is it a continuation of a private search. If a private searcher shows the law enforcer exactly what they saw and that alone, there may not be an unlawful search. But what happens if the law enforcer does more than strictly replicate what the private searcher did. So Orin Kerr has some information for us in the Washington Post.

[T]he 11th Circuit handed down a new computer search decision,United States v. Johnson, that both sharpens and deepens the circuit split on how the private search doctrine of the Fourth Amendment applies to computers. Johnson isn’t a likely candidate for Supreme Court review. But it does leave the private search doctrine in computer searches ripe for Supreme Court review in other cases working their way through the courts.

See his article here in a 2005 article.

Because the Fourth Amendment applies only to the government and its agents, the Fourth Amendment is not triggered when private parties not associated with the government conduct searches. When a private party conducts a search and finds evidence of crime, the private party often goes to the police and voluntarily shows the police what she has found. The Supreme Court uses what I have called the “private-search reconstruction” doctrine to regulate what the police are allowed to see without a warrant. The police can reconstruct the private party search, seeing what the private party saw, but they can’t exceed the search the private party conducted. On to the important legal question: When a private party searches a computer, sees a suspicious file and reports the finding to the police, what kind of government search of the computer counts as merely reconstructing the private search and what kind of search counts as exceeding the private search?

Read on for Orin Kerr’s thoughts in his article.

Orin Kerr has this post at The Volokh Conspiracy. In part: Computer searches usually happen in two stages. Agents take the computer, make a mirror image copy of its hard drive on a government storage device, and then search the image. Officers do this to ensure the integrity of the original data. Searching can alter the contents on the computer, so working from a copy preserves the original. This two-step procedure raises an interesting puzzle for consent doctrine. What happens if a target consents to a computer search, the agents quickly make a copy, and then the target revokes consent before the image is searched? Everyone agrees that the officer can’t search the target’s own computer after consent was withdrawn. But can the officer search the copy? Is the copy now the government’s to search regardless of the suspect’s revocation, or should the revocation of consent cover both the original and the copy?

h/t CrimProfBlog.

This is not an uncommon situation in military cases. I suspect we all have cases where the computer is taken and imaged, and then we send in a notice of representation and notice of withdrawal of consent.

And see also, Edward J. Imwinkelried (University of California, Davis – School of Law) has posted The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence IProceedings of the Fifth International Conference on Evidence Law and Forensic Science, Forthcoming) on SSRN.

[D]istrict courts generally enjoy a fair amount of discretion in choosing the procedures they find most helpful for resolving pretrial motions, including whether to take the matter on the briefs, hear oral argument, or hold an evidentiary hearing. And often enough courts will choose to err on the side of granting more process than might be strictly necessary in order to ensure not only that justice is done but that justice is seen to be done. Whether because of intuition born of experience that a meritorious issue may lurk in an imperfectly drawn application, or simply out of a jealous wish to guard individual rights against governmental intrusions, judges sometimes allow a claimant a fuller hearing than the law demands. In a democratic legal order built on the promise of due process and the vindication of individual rights that’s often thought laudable or at least generally permissible — and in any event not the stuff of automatic reversal.

United States v. Herrera, __ F.3d ___ (10th Cir. 2015).