Criminal – Wrong commanding officer authorized search of defendant’s cell phone

Although evidence obtained during a military search of the defendant’s cell phone was inadmissible because it violated the Military Rules of Evidence, the good-faith exception to the exclusionary rule and “fruit of the poisonous tree” doctrine nonetheless allowed the government to admit evidence discovered via a subsequent search of the same phone.

Background

Appellant Gregory Kyle Seerden was a member of the United States Navy stationed in San Diego, California. In January 2017, Seerden attended a training program at the Little Creek base in Virginia Beach, Virginia. A woman that Seerden had met one night between training sessions told another service member that Seerden had sexually assaulted her, and the service member reported the incident to the Naval Criminal Investigation Service (NCIS).

NCIS began investigating the incident, arranging a controlled text message conversation between Seerden and the woman during which Seerden admitted that he and the woman had sex while she was not sober. NCIS then began coordinating with the commanding officers in San Diego and Virginia to obtain authorizations to search Seerden’s room and cell phone. NCIS, in consultation with Judge Advocate General’s officers, decided that the Little Creek commanding officer should authorize the search of the room while the San Diego commanding officer should authorize the search of Seerden’s cell phone.

The San Diego commanding officer signed a Command Authorization for Search and Seizure (CASS) sanctioning the search of Seerden’s cell phone. A week later a digital forensics examiner executed the search and noticed thumbnail photographs that he believed contained images of child pornography. NCIS then obtained a warrant from the Eastern District of Virginia to search the phone for further evidence of child pornography, and the forensics examiner found 78 images depicting known victims of child exploitation.

A grand jury indicted Seerden for possession, production and transportation of child pornography. Seerden moved to suppress the evidence obtained from the two cell phone searches, but the district court denied the motion. Thereafter Seerden pleaded guilty to production of child pornography, reserving his right to appeal the denial of his motion to suppress. Seerden was sentenced to 324 months of imprisonment to be followed by 25 years of supervised release. This appeal followed.

Analysis

Federal courts consider the Military Rules of Evidence, which outline the rules and procedures that govern how military officers conduct military searches, in evaluating the reasonableness of military searches, but the Fourth Amendment remains the proper standard for determining whether evidence seized pursuant to a non-federal warrant is admissible in federal court.

Even assuming that there was a violation of the Fourth Amendment here, the good-faith exception to the exclusionary rule precludes suppression. Under the exclusionary rule, evidence should only be suppressed if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional. Thus, the good-faith exception allows courts to introduce evidence obtained in violation of the Constitution but in reasonable reliance on a defective warrant.

The fact that the CASS was authorized by the wrong commanding officer did not render it facially deficient. The good faith exception has been applied to warrants authorized by magistrate judges lacking jurisdiction and there is no reason to conclude that a case of the wrong commanding officer should be treated any differently. Notably, several officers, and JAG attorneys at both bases, concluded that Seerden’s commanding officer could authorize the search. While this determination was wrong, we are not prepared to say that all these officials acted unreasonably in making it.

In addition, the affidavit supporting the CASS detailed the allegations of the accuser and noted that the admission’s made by Seerden during the controlled text message conversation were consistent with those allegations. Presented with this information, it would not be entirely unreasonable for an officer to believe that the CASS was supported by probable cause.

Affirmed.

United States v. Seerden (Lawyers Weekly No. 001-034-19, 13 pp.) (Stephanie Thacker, J.) Case No. 18-4124. Feb. 20, 2019. From E.D.Va. (Raymond Jackson, J.) Andrew William Grindrod for Appellant; Richard Daniel Cooke for Appellee.