Battle of footnotes on E Street, or "what's mine is mine, what's yours is waivable"

United States Court of Appeals
for the Armed Forces

Yesterday, the United States Court of Appeals for the Armed Forces decided United States v. Perkins, No. 18-365/MC, a 4-1 decision. The case, which concerns the application of the good faith exception to the exclusionary rule, is a rare example of a pro-defense certification to the Court of Appeals by a Judge Advocate General (see p. 2). Of particular interest (and concern) is the majority's invocation of waiver against the defense while permitting the government to defend the decision below on a ground it had not pressed. The disparity--leniency for one party but severity for the other--is jarring. If anything, Judge Ohlson's treatment of that disparity in a footnote is understated.

The majority’s disparate treatment of the prosecution and the defense is noteworthy. As is permissible, for the first time on appeal to the CCA the Government argued that the good faith exception applies to this case. Brief for Appellee at 10, United States v. Perkins, 78 M.J. 550 (N-M. Ct. Crim. App. 2018) (No. 201700077). The majority now endorses and adopts this approach. Similarly, for the first time on appeal to the CCA, Appellant argued that the good faith exception does not apply to this case because the commanding officer rubber-stamped the search authorization request. Brief for Appellant at 16, Perkins, 78 M.J. 550 (N-M. Ct. Crim. App. 2018) (No. 201700077). Not only does the majority reject this argument, however, it actually prevents Appellant from even making this argument, asserting that it was waived because Appellant did not raise it at trial. Thus, even though the Government can raise the good faith exception for the first time on appeal, under the majority’s approach Appellant is foreclosed from raising for the first time on appeal one of the four explicit limitations to the good faith exception that the Supreme Court specifically listed in [United States v. Leon, 468 U.S. 897 (1984)]. In my mind, this is a curious result.

Here is what the majority opinion, per Maggs, J., said in response in this duel of footnotes:

The dissent asserts that Appellant did not waive the “rubber-stamping” argument in this case because he “was not required to invoke an ‘exception to this exception’ at trial” given that “the good faith exception was not raised by the Government or the military judge at the trial court level.” United States v. Perkins, __ M.J. __, __ (2) (Ohlson, J, dissenting). This assertion assumes that rubber-stamping is merely an exception to the good faith exception. This assumption is incorrect. A fundamental principle of the Fourth Amendment is that “[a] magistrate failing to ‘manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application’ and who acts instead as ‘an adjunct law enforcement officer’ cannot provide valid authorization for an otherwise unconstitutional search.” Leon, 468 U.S. at 914 (quoting Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–27 (1979)). Accordingly, the accused can argue in the first instance that a search authorization was invalid because the commander rubber-stamped the government’s application; the accused need not first show that the search authorization was invalid for some other reason and then wait for the government to argue that its agents acted in good faith before raising a rubber-stamping objection. See, e.g., United States v. Clayton, 68 M.J. 419, 425−26 (C.A.A.F. 2010) (upholding the military judge’s determination that a warrant was valid because, among other reasons, the magistrate did not abandon his judicial role and act as a rubber stamp for the government).

Read the whole case and see who you think has the better of the argument in this respect. Can logic mask unfairness?