Challenge MRE 311!




In many courts-martial, your military defense counsel will have to deal with evidence obtained from digital devices, like cell phones. The prosecution’s use of texts, images, and social media accounts is prevalent in sex offense cases. As your civilian military defense lawyers, we are experienced in dealing with digital evidence and have excellent working relationships with several experts in computer forensics who help us and you.

For law enforcement to seize and search your phone, they need your consent (NEVER give it), a warrant from a civilian court, or search authorization from a proper commander. 

To get a warrant, they need to show that they have probable cause to believe you committed a crime and that relevant evidence is likely to be found on your cell phone.

The search is likely unlawful if they do not have your consent or a warrant. However, there are situations where even consent or a warrant can lead a court to find the search was unlawful. There are several ways in which a court can say the search was unlawful (1) that there was no probable cause to issue it in the first place, (2) the searchers exceeded the scope of the consent or warrant.

We are aware of several cases where the accused consented to a limited search of their cell phone, and the agents went beyond that, and there are several cases where the agents exceeded the scope of the warrant. We will discuss one of the scope cases shortly.

The Military Rules of Evidence (M.R.E.) set out the procedures for the agents to follow, for the military defense lawyer to challenge the search, and for the courts to evaluate the validity of the search.

Today the focus is on challenges to searches of phones beyond the scope that was authorized. The issue comes up often because there is so much data on a cell phone, and there is a tendency for the MCIO agent to believe they can search everything once they have possession of the cell phone. This abusive practice has come up in a pending Supreme Court petition we have filed.

In Lattin v. United States (, the O.S.I. agent created an affidavit of probable cause and created and prefilled the authorization by the commander. The language broadly allowed a complete fishing expedition on the Appellant’s cell phone because it was not limited to the specific information they sought. This is a “scope” issue. Generally, the search cannot go beyond the limited scope of the authorization unless investigators see something in “plain view” and then get a second authorization.

In Lattin, the O.S.I. agent went on a fishing expedition. They were looking for some texts between the Appellant and a specific individual. However, once they found those texts, they decided to go fishing for other information. The agent testified that once they had the cell phone, it belonged to the government, and they could search it for anything and everything.

Our petition begins,

The scope of the Exclusionary Rule has been settled law for over a decade. Nevertheless, the Court of Appeals for the Armed Forces, over the dissent of two judges, set out to craft its own test. In doing so, it narrowed the scope of the Exclusionary Rule by requiring that the social cost of exclusion be assessed anew in every case. This ruling places the CAAF in conflict with every geographical circuit. Neither the decision below nor the drafters’ explanation for the pertinent provision of the Military Rules of Evidence points to anything unique to the military justice system that renders it impracticable to apply the rules followed in United States district courts. See 10 U.S.C. § 836(a).

At trial, one of the “defenses” the prosecution raised was the good faith reliance on a properly authorized search as an exception to the Fourth Amendment exclusionary rule. This exception is one of several in M.R.E. 311; the others are that the MCIO agent acted “with good faith” on the legality of the authorization (measured by an objective standard), and they relied on “Statute or Binding Legal Precedent. Again, the problem is measured by the objectively reasonable standard.

The Supreme Court in United States v. Leon (1984) declared that suppressing evidence is not required where the investigators acted in good faith, relying on a search warrant even if later found invalid. The exclusionary rule is only intended to deter future police misconduct, so punishing officers who acted in good faith would be unfair.

In United States v. Herring and United States v. Davis, the Supreme Court clarified what the exclusionary rule meant and the standard of review to be applied when challenging a search. First, they decided the good faith exception applied when the investigator’s mistake was due to negligence or administrative errors. And second, the exclusion is not applied to “isolated, unintentional errors” that do not reflect “systemic negligence.” The court created a categorical test. Davis extended Herring to apply the good faith exception applies when officers rely on binding appellate precedent. The officers should be able to rely on the rulings of appellate courts existing at the time of the search, even if those rulings are later overturned.

Scholars have criticized the good faith exception because it undermines the exclusionary rule’s deterrent effect. However, the Court has repeatedly reaffirmed the good faith exception, now an established part of Fourth Amendment law. The good faith exception applies to a wide range of situations. It is a complex legal doctrine with many factors to consider prosecuting a case and your military defense counsel should be researching the factors thoroughly. However, the basic rule is that if police officers act in good faith and reasonably believe that their actions are lawful, then evidence obtained in violation of the Fourth Amendment may be admissible in court.

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