Searches in “good faith.”

In United States v. Johnson, the Air Force Court of Criminal Appeals decided that the military judge was correct in denying suppression of evidence gained from searches of his cell phones under the ‘OSI acted “in good faith,” so no reason to suppress evidence.

I. Summary of Facts and Proceedings
In United States v. Johnson, the appellant moved to suppress evidence extracted from two personal cell phones on two grounds: (1) the searches were not authorized by an individual who “has control over the place where the property … is situated or found” under Mil. R. Evid. 315(d); and (2) the military judge abused his discretion by denying suppression of evidence predating the charged offenses (12 August 2022). The trial-level military judge heard testimony from the Office of Special Investigations (OSI) agents and the military magistrate (Colonel JF) regarding three separate requests for search authorization—initially oral, then two written expansions covering broader data and timeframes. Although the magistrate’s initial written affidavit omitted certain orally-provided details (e.g., the December 2021 incident at Incirlik AB), he ultimately signed off on all three authorizations. On motion to suppress, the military judge upheld the magistrate’s probable-cause determinations with “substantial deference,” and in the alternative applied the good-faith exception, concluding that exclusion would not appreciably deter future unlawful searches. The appellant did not contest at trial the magistrate’s control over the search location, waiving that argument on appeal. 【23 M.J. at 6–10; Mil. R. Evid. 315(d)】

II. Applicable Legal Framework

1. Standard of Review. We view suppression rulings in the light most favorable to the prevailing party, reviewing factual findings for clear error and the denial of a motion to suppress for abuse of discretion. United States v. Blackburn, 80 M.J. 205, 211 (C.A.A.F. 2020); United States v. Lattin, 83 M.J. 192, 198 (C.A.A.F. 2023).

2. Search Authorization Requirements. Under Mil. R. Evid. 315, a search authorization is valid only if issued by an impartial magistrate “who has control over the place where the property … is situated.” Mil. R. Evid. 315(d). The Fourth Amendment similarly demands a “neutral and detached” reviewer capable of independently assessing probable cause. Illinois v. Gates, 462 U.S. 213, 239–40 (1983); Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972).

3. Deference and the Good-Faith Exception. Probable-cause determinations by magistrates enjoy “great deference,” and searches pursuant to authorizations are presumptively reasonable. United States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2013). Even if probable cause is later found wanting, Mil. R. Evid. 311(c)(3) codifies the Leon good-faith exception: an otherwise valid search survives exclusion if (1) it stemmed from a magistrate-issued authorization, (2) the magistrate had a substantial basis for finding probable cause, and (3) law enforcement reasonably and in good faith relied on that authorization. United States v. Perkins, 78 M.J. 381, 387–88 (C.A.A.F. 2019); United States v. Leon, 468 U.S. 897, 922–23 (1984). Ritter & Lewis observe that where magistrates receive sworn oral testimony alongside written affidavits, courts often sustain the good-faith exception absent a showing of dishonesty or reckless disregard. George S. Lewis III, The Role of the Military Magistrate in Search Authorizations, 155 Mil. L. Rev. 67, 74–75 (1999).

III. Analysis

1. Waiver of Control Argument. The appellant’s contention that Colonel JF lacked “control” over the appellant’s phones is procedurally waived because it was not raised below. Perkins, 78 M.J. at 390 (requiring “particularized objection” at trial).

2. Magistrate’s Probable-Cause Determination.

   • Oral vs. Written Information. Although the initial affidavit did not mirror the oral sworn testimony about the Incirlik AB incident, the magistrate expressly relied on that oral testimony in finding probable cause. Courts have upheld authorizations where magistrates receive supplemental sworn oral statements contemporaneously with affidavits. See United States v. Rogers, 67 M.J. 162, 165 (C.A.A.F. 2009).

   • Training and Independence. Colonel JF had received formal magistrate training, reviewed legal opinion from the base judge advocate, and affirmed that he acted with “due diligence.” That suffices to satisfy the Fourth Amendment’s “neutral and detached” requirement. See Gates, 462 U.S. at 240.

3. Good-Faith Exception Application.

   • Authorization by Magistrate (Element 1). Each expansion was signed by the duly appointed military magistrate.

   • Substantial Basis for Probable Cause (Element 2). Under the totality of circumstances, facts about the December 2021 incident, the dual-phone possession, and geolocation relevance created a “fair probability” of evidence on the devices. Rogers, 67 M.J. at 165 (probable cause exists where evidence is “fair probability” to be found).

   • Reasonable and Good-Faith Reliance (Element 3). The OSI agents consulted counsel, presented sworn testimony, and did not mislead the magistrate. There is no indication of “bare-bones” affidavits or intentional falsehood. The military judge correctly found that exclusion “would not result in appreciable deterrence” and that the agents’ objectively reasonable reliance precludes suppression. See United States v. Lattin, 83 M.J. 192, 197–98 (C.A.A.F. 2023); United States v. Blackburn, 80 M.J. at 212 (counsel’s advice is “most significant” for good-faith).

IV. Conclusion and Implications
The Air Force Court of Criminal Appeals properly upheld the military judge’s denial of suppression. The appellant waived the “control” argument, and even if probable cause were marginal, the good-faith exception under Mil. R. Evid. 311(c)(3) applies where a trained, impartial magistrate authorizes a search based on sworn testimony and counsel’s concurrence. This decision underscores the judiciary’s deference to combined oral and written magistrate consultations, and reiterates that exclusion remains a remedy of last resort where law-enforcement officers act in objectively reasonable reliance on authorized searches.