Digest of a federal district case in the September 28, 2017 Virginia Lawyers Weekly
A digest of a federal district case in the September 28, 2017 Virginia Lawyers Weekly highlights federal and military criminal procedure and rules of evidence. The facts that led to this interesting analysis begin with the arrest of a Navy seal stationed in San Diego, but at a training course in Virginia. While in Virginia, Petty Officer first Class Seerden was accused of sexually assaulting a woman in a hotel on the base. In the course of the investigation of that accusation, the Naval Criminal Investigative Service secured his phone. Based upon guidance from judge advocates at the base and in the officer’s chain of command, they concluded that Seerden’s commanding officer in San Diego was the proper person to grant authority to search the officer’s phone. During that search, child pornography was discovered. The search was discontinued and a warrant was sought from a federal magistrate to continue the search under a warrant. Seerden’s attorneys attempted to have the evidence of child pornography tossed out on the grounds that the seizure was unconstitutional because Seerden’s commanding officer in San Diego was not the correct person to grant permission for the initial search of the phone. The Court analyzed this issue under the military rules of evidence. Seerden’s commanding officer in San Diego was not the correct person to grant permission for Seerden’s phone to be searched. So, that initial search was illegal. The Court found that there is a good faith exception under military law which allows evidence obtained as the result of an unlawful search to be used. The second search, made under the warrant issued by the federal magistrate, but which was based upon information in an affidavit based on that first, unlawful, search was held to be a valid search under the good faith rule. The court held that the mistake in this case was merely technical and did not rise to the level where exclusion of the evidence was warranted and the investigating agents relied , in good faith, upon the advice of the judge advocates. Seerden pleaded guilty and waived his right to appeal.