The Fourth Amendment protects all Americans from search and seizure of their homes and property without a warrant. There are exceptions to this rule, such as for exigent circumstances or when evidence of a crime is in plain sight of law enforcement. Where a law enforcement agent violates the Fourth Amendment rights of an individual, the courts determine whether the evidence that was unlawfully found should be excluded from trial. The idea behind excluding evidence that is illegally obtained is to deter law enforcement from this type of behavior in the future. Courts, therefore, must determine whether exclusion of the evidence will result in deterrence of future unlawful searches and seizures and whether the benefits of such deterrence outweigh the costs to the justice system.
Last month, a panel of the Navy-Marine Corps Court of Criminal Appeals set aside a guilty finding after finding that a NCIS special agent unlawfully searched an accused Sergeant’s cell phone and that the evidence should have been excluded. In United States v. Lee, the accused Sergeant got into an online discussion with an undercover FBI agent concerning potential sex acts with a child. During the ensuing investigation, the NCIS agent was searching his cell phone for evidence related to any crimes against children. The agent came across pictures of the Sergeant with a woman. After clicking on one thumbnail image, the agent could tell that this was an adult woman, and therefore not something he was looking for under the command authorized search of the phone. Despite determining that this woman was an adult, when the agent came across further thumbnail images of this same woman in uniform, he opened them. Based upon his examination of these images, he realized that the Sergeant was involved in a sexual relationship with a female officer. The Sergeant was charged with, and convicted of, adultery for this relationship.
The Military Judge at trial found that the search of the images involving the officer was unlawful because the agent knew they were not related to the authorized search for evidence of crimes against children. However, the Military Judge decided not to exclude the evidence because he found the deterrent effect minimal and the cost to the justice system to be high.
The Navy-Marine Corps Court of Criminal Appeals agreed that the search was unreasonable, but found that the evidence should have been excluded. The Court found the agent’s actions to be intentional violations of the limits of the authorized search. The Court also stated that allowing the introduction of evidence that is intentionally obtained in violation of the Fourth Amendment would make the protections of that Amendment “of no value.” Finally, the Court found that the cost to the justice system of potentially losing an adultery conviction was not too high a price to pay compared to the deterrence effect on future law enforcement behavior.
The guilty finding to the adultery charge was set aside and sent back to the Convening Authority who may authorize a rehearing without any of the unlawfully obtained evidence from the Sergeant’s cell phone.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.