More Than 30 Years Dedicated Exclusively to Military Law | Learn More About Philip D. Cave

In United States v. Robertson the accused was charged with CP related offenses and violation of restriction.

Here is why as a trial I and my colleagues would, and you should consider–pick the serious and solid charges and leave the detritus out. When you have a solid CP case you don’t need a minor charge on the sheet–it may screw things up a bit. Fortunately no serious effect in Robertson, but there could have been.

That which is simple need not be made complex, and creative charging decisions in cases that are based upon simple facts can lead to legally insufficient convictions. This is such a case.

NMCCA has an interesting case on the scope of a consent search and subsequent actions when looking for evidence on a cellphone. I think many times we have seen this issue.

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.

There was a substantial basis for finding probable cause, and this didn’t even approach “bare bones.” “We must take care not to confuse a bare bones affidavit with one that merely lacks probable cause.” The motion to suppress was properly denied. United States v. Gilbert, 2020 U.S. App. LEXIS 7590 (6th Cir. Mar. 11, 2020):

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))).


Sometimes appellate counsel find themselves looking at ineffective representation in advising a client to plead guilty and then the conduct of the negotiations.

Taylor v. Crowther, USDC Utah may be worth the read. (The court opinion is within the article.)

Here the issue was related to sentencing.

When two people jointly buy drugs for their individual use and then transfer the drugs between themselves, does that amount to distribution for prosecution purposes–apparently so based on a new case from ACCA.

United States v. Myers, ACCA March 2020.

This appeal raises a compelling question: whether joint purchasers and possessors of a controlled substance, who intend to share it between themselves as users, may be found guilty of wrongful distribution of a controlled substance under Article 112a, Uniform Code of Military Justice [UCMJ].

Here’s is an essay for those interested in defining or otherwise addressing consent in military sexual assault cases.

Aya Gruber, “The Complexity of College Consent,” Adjudicating Campus Sexual Misconduct and Assault: Controversies and Challenges, ed. Claire M. Renzetti and Diane R. Follingstad. Copyright © 2020 Cognella, Inc. Uploaded to SSRN with permission.

Contact Information