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Revising the Exclusionary Rule

 

 

 
 
   
   
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(Credit: istockphoto.com/Dmitrii_Guzhanin)

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Justice Ginsburg’s dissent champions what she describes as “‘a more majestic conception’ of...the exclusionary rule,” which would exclude evidence even where deterrence does not justify doing so. Majestic or not, our cases reject this conception, and perhaps for this reason, her dissent relies almost exclusively on previous dissents to support its analysis.1

A Mundane Explanation2

To stop law enforcement from violating the Constitution during a search, the Supreme Court created the exclusionary rule.3 This rule denies the admission of incriminating evidence, which may result in the guilty going free because of law enforcement misconduct. Military Rule of Evidence (MRE) 311 implements the exclusionary rule for military courts; recently, Congress added a balancing test that must be met before applying the rule.4 The new balancing test limits the application of the rule, but it is not an exception.5 Moreover, MRE 311 does not explain how to apply this balancing test.6

The MRE 311 balancing test requires exclusion of unlawfully obtained evidence, but only if the exclusion of the evidence would result in an “appreciable deterrence” of future violations of the Fourth Amendment and the benefits of the deterrence “outweigh the costs to the justice system.”7 Under this test, for deterrence to be appreciable, the actions that violate the Fourth Amendment must be “deliberate enough to yield meaningful deterrence.”8 Additionally, the appreciable deterrence must pay the cost to the justice system of “letting a guilty and possibly dangerous defendant go free.”9 In other words, a negligent violation of the Fourth Amendment is not enough to warrant the harsh results of exclusion.10

This article explains why MRE 311 should be revised and recommends modifications to MRE 311 to make it easier for practitioners to understand. First, there is a discussion of the purpose of the exclusionary rule and the origin of the balancing test. Second, an explanation that the new balancing test subsumes both the “good faith” and “reliance” exceptions listed in MRE 311. Last, a proposed modification makes the rule more comprehensible by deleting the unnecessary exceptions, adding a discussion section explaining how to analyze the balancing test, providing guidance of the proper procedure when applying the rule, and including a robust analysis of the rule in the appendix of the Manual for Courts-Martial (MCM).11

Modest Foundation

Understanding the exclusionary rule requires a basic understanding of the constitutional right from which it derives. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”12 The Fourth Amendment, however, does not explain how the right is protected or what remedy there is for violations of that right.13 The Supreme Court of the United States, therefore, forged the exclusionary rule.

The exclusionary rule prohibits the use of unlawfully obtained evidence in a criminal trial. The Supreme Court acknowledged that the rule is meant as a “‘prudential’ doctrine” to “compel respect for the constitutional guaranty” of freedom from unlawful searches and seizures.14 Subjects of Fourth Amendment violations cannot independently seek redress for those violations; but rather, the only remedy is exclusion of the unlawfully obtained evidence. In Calandra, the Supreme Court acknowledged that “the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through the deterrent effect, rather than a personal constitutional right of the party aggrieved.”15 In other words, the rule cannot restore the privacy rights that were violated; however, they can help prevent such violations in the future. As laid out in Supreme Court cases, “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”16 The Supreme Court created the exclusionary rule; one must understand the purpose of the rule to know when it applies.

Purpose of the Exclusionary Rule

Determining when the exclusionary rule applies can be difficult, because even if a Fourth Amendment violation occurs, i.e., an unlawful search or seizure, it “does not necessarily mean that the rule applies” to exclude the evidence obtained.17 As one scholar amusingly explains, “The term ‘exclusionary rule’ is a bit like the canned cooked pork Spam—virtually everybody is familiar with it, only a few people are sure about its precise contents, and most people can stomach it only occasionally and in small portions.”18 It may be unpalatable, but understanding the purpose of the exclusionary rule is essential to determine when the rule should or should not apply.19 Dissenting justices and scholars have advocated different purposes for the exclusionary rule, but this article ignores these majestic concepts and focuses on Supreme Court precedent from which MRE 311(a)(3) derives.20

The sole purpose of the exclusionary rule, as repeatedly held by the Supreme Court, “is to deter future Fourth Amendment violations.”21 “The exclusionary rule is not an individual right”22 attached to the Fourth Amendment, “nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search,” thus it cannot be used to compensate an injured criminal.23 Instead, excluding unlawfully obtained evidence is only meant to deter Fourth Amendment violations. That being said, applying the rule to exclude evidence is a “‘last resort, not [a] first impulse’” and “applies only where it ‘results in appreciable deterrence.’”24 To that end, the Supreme Court developed and Congress adopted a balancing test to determine whether to apply the exclusionary rule.

Origin of the Balancing Test

This balancing test weighs the benefits of deterrence against the social costs to the justice system. The 2016 amendment to MRE 311(a)(3) “incorporates the balancing test...set forth in Herring v. United States.”25 In Herring, the Supreme Court held that “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”26 The Court explains sufficiently deliberate as “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”27 Additionally, the price paid by the justice system is “something that ‘offends basic concepts of the criminal justice system.’”28

The cost-benefit analysis of the balancing test requires that police conduct be more than merely negligent, and if police conduct is sufficiently deliberate, then deterring such conduct must outweigh the cost of letting a guilty defendant go free by excluding evidence.29 The appropriateness of excluding evidence with the exclusionary rule can only “be resolved by weighing the costs and benefits of preventing the use...of...evidence.”30 Put another way, the possible benefit of the deterrent effect by excluding evidence “must be weighed against the ‘substantial social costs exacted by the exclusionary rule.’”31

The MCM credits Herring with creating the balancing test amended to MRE 311, but the cost-benefit analysis language of the balancing test has been part of Supreme Court exclusionary rule decisions for decades.32 The significance of Herring is the Court’s clarification that “[t]he pertinent analysis of deterrence and culpability is objective, not an inquiry into the subjective awareness of arresting officers.”33 Echoing the good faith examination language from a 1984 case, the Court in Herring held that the objective analysis of an officer’s conduct is “‘whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.’”34 The Supreme Court reaffirmed this objective analysis in Davis v. United States, stating, “the harsh sanction of exclusion ‘should not be applied to deter objectively reasonable law enforcement activity.’”35 Therefore, the negligent conduct of an objectively reasonable officer would not merit deterrence, and any marginal deterrence would not outweigh the costs—“[i]n such a case, the criminal should not ‘go free because the constable has blundered.’”36 Separate from this balancing test analysis are exceptions to the exclusionary rule that allow admission of evidence, even if exclusion would be appropriate under the balancing test.

Meager Exceptions and Analysis

Military Rule of Evidence 311(c) lists four exceptions to the exclusionary rule: (1) impeachment, (2) inevitable discovery, (3) good faith execution of a warrant or search authorization, and (4) reliance on statute or binding precedent.37 Because law enforcement conduct that meets the latter two exceptions would not trigger the exclusionary rule after a proper analysis of the balancing test, they are now redundant. Knowing the exceptions and understanding how to analyze the exclusionary rule will make clear the reason why the balancing test subsumes these exceptions.

The Objectively Reasonable Good Faith Exception

The “good faith” exception permits evidence from an unlawful search if law enforcement acted in good faith while executing an invalid warrant. Military Rule of Evidence 311(c)(3) states this exception as follows:

Evidence that was obtained as a result of an unlawful search or seizure may be used if: (A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civilian authority; (B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and (C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.38

This addition to the rule in 1986 incorporated the Supreme Court’s holding in United States v. Leon.39 In Leon, the Court stated that “where the officer’s conduct is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way...unless it is to make [the officer] less willing to do [their] duty.”40 The Court concluded that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial cost of exclusion.”41 A few years later, in 1987, the Supreme Court in Illinois v. Krull extended this principle of “objectively reasonable reliance” from invalid warrants to invalid statutes, and this generated the reliance exception.42

The Objectively Reasonable Reliance Exception

The “reliance” exception to MRE 311(c)(4) states that “[e]vidence that was obtained as a result of an unlawful search or seizure may be used when the official seeking the evidence acted in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment.”43 This addition to the rule in 2016 adopted the Supreme Court’s holding in Illinois v. Krull.44 In Krull, the Court held that there is no significant deterrent effect in excluding evidence seized pursuant to a statute reasonably relied upon in good faith, prior to the declaration of its invalidity, and the possible benefit of applying the exclusionary rule is unjustified when weighed against the social cost.45 The Court’s opinion in Krull is an expansion of the principles of Leon and applies the same approach to the exclusionary rule in evaluating reasonableness.46

The Objectively Reasonable Balancing Test

The balancing test of MRE 311(a)(3) states that unlawfully obtained evidence is inadmissible against the accused if “exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”47 This balancing test derives from Herring v. United States.48 The “good faith” exception of MRE 311(c)(3) derives from United States v. Leon.49 The “reliance” exception of MRE 311(c)(4) derives from Illinois v. Krull.50 Herring is a clarification of the principles laid out in Leon and Krull, and Krull is an extension of Leon.51 Therefore, MRE 311(a)(3)’s balancing test gleans from the same principles as both the “good faith” and “reliance” exceptions.

“The basic insight of the Leon line of cases is that the deterrence benefits of exclusion ‘var[y] with the culpability of the law enforcement conduct’ at issue.”52 In Herring, the Court explains that “the exclusionary rule does not apply if the police acted ‘in objectively reasonable reliance’” and admits, “[w]e (perhaps confusingly) called this objectively reasonable reliance ‘good faith.’”53 Accordingly, “when police act with an objectively ‘reasonable good-faith basis belief’ that their conduct is lawful, or when their conduct involves only simple, ‘isolated’ negligence, the ‘deterrence rationale loses much of its force,’ and exclusion cannot ‘pay its way.’”54 This means objectively reasonable conduct that cannot yield an appreciable deterrence under the balancing test is the same as objectively reasonable conduct that would qualify for either the “good faith” or “reliance” exceptions. Furthermore, the pointlessness of the exceptions is even more obvious when appropriately analyzing the exclusionary rule.

The Objectively Reasonable Analysis of the Rule

The proper way to analyze an issue under MRE 311 is to follow the sequence of the rule itself.55 Under MRE 311, evidence against an accused is inadmissible if the requirements of the exclusionary rule are satisfied.56 First, the “[e]vidence [was] obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity.”57 Second, “the accused makes a timely motion to suppress or an objection to the evidence under the rule.”58 Third, the military judge decides that:

the accused had a reasonable expectation of privacy in the person, place, or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the Armed Forces.59

Fourth, the military judge determines that “exclusion of the evidence would result in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”60 Lastly, the military judge must consider any exception to the rule that may apply to the facts of the case.61 Simply put, one must first determine that the rule applies before looking for exceptions to the rule.

To illustrate how a proper analysis of the rule nullifies both the “good faith” and “reliance” exceptions, consider the conduct of two officers who obtained evidence from unlawful searches, and assume that the accused made a timely objection.62 Officer Finkle executed a search pursuant to a warrant that he reasonably and with good faith relied on, but the military judge determined that there was no probable cause to support the warrant.63 Officer Einhorn executed a search pursuant to a statute that she reasonably relied on, but subsequently the statute is held to be unconstitutional in a different case.64 In both examples, the military judge concludes that the officers did not intentionally violate the Fourth Amendment and that neither acted in reckless disregard of constitutional requirements. Thus, the conduct of both officers was objectively reasonable under that balancing test, and the evidence would be admissible at trial.65

Importantly, the military judge never had to consider the exceptions to the rule, even though Officer Finkle’s conduct would have qualified for the “good faith” exception and Officer Einhorn’s conduct would have qualified for the “reliance” exception.66 In other words, the objectively reasonable standard is the same for both the balancing test and the exceptions. Therefore, if the conduct of law enforcement is objectively reasonable, then the rule does not apply, and there is no need to consider the exceptions.

The Supreme Court also follows the procedure of analyzing the balancing test before considering exceptions when discussing the exclusionary rule.67 In Davis, the Supreme Court addressed the question of “whether to apply the exclusionary rule when the police conduct a search in objectively reasonable reliance on binding judicial precedent,” before considering any exceptions.68 First, the Court analyzed the balancing test and found the evidence “is not subject to the exclusionary rule.”69 Then, the Court acknowledged that even without the balancing test, the inevitable discovery exception would have been applicable and “suppression would thus be inappropriate.”70 This procedure is not readily apparent in MRE 311, and modifications to the rule will make it easier for practitioners to understand.

Minor Modifications

Military Rule of Evidence 311 needs further modifications to help military practitioners better understand the exclusionary rule. “Judge advocates today are comfortable with the [MREs], and also accept that the rules will be modified on a regular basis to conform to changes in both the [Federal Rules of Evidence] and case law from the Supreme Court and Court of Appeals for the Armed Forces.”71 The recommendations for modification from this article will simplify the rule and are in accordance with current case law. These modifications are no more extensive than changes the rule has undergone over the past few years.

MRE 311’s Evolution

The title of MRE 311 is “Evidence Obtained From Unlawful Searches or Seizures,” and it is comprised of five parts: (a) the general rule, (b) definitions of whose conduct the rule seeks to deter, (c) exceptions to the rule, (d) motions to suppress and objections under the rule, and (e) effects of a guilty plea on the rule.72 The rule’s current form is the result of several modifications over the past few years.

In 2013, the rule underwent its first major changes in decades, trimming down from nine parts to the current five parts.73 The most significant change in 2013 was that the “definitions” section was moved in front of the “exceptions” section, and it subsumed many of the previous parts.74 In 2016, besides the balancing test, the other notable addition was the “reliance” exception.75 The only relevant modifications since 2018 include the language added to the “reliance” exception and the removal of the analysis of the rule from the appendix of the MCM.76

The current exclusionary rule under MRE 311(a) is:

Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if: (1) the accused makes a timely motion to suppress or an objection to the evidence under this rule; (2) the accused had a reasonable expectation of privacy in the person, place, or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the Armed Forces; and (3) exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.77

The lone explanation in MRE 311 for proper analysis of the exclusionary rule is within the definition section, and it describes which government actors can make a search or seizure unlawful.78 Without providing further discussion on the proper way to analyze the rule or guidance on the procedure for applying it, the exclusionary rule is difficult to digest.

MRE 311’s Proposed Modifications

Like Spam, only a few comprehend the contents of MRE 311 and are willing to consume it, but modifications to the rule will make it palatable.79 Such modifications include deleting the unnecessary exceptions, adding a discussion section explaining how to analyze the balancing test, providing guidance of the proper procedure when applying the rule, and including an analysis of the rule in the appendix of the MCM. These modifications will make the rule more user-friendly for practitioners.

Discussing the Balancing Test

Deleting the unnecessary exceptions and adding a discussion section immediately after the general rule will help explain how to analyze the balancing test. As discussed, the balancing test subsumes the “good faith” and “reliance” exceptions, but the principles that created them should be part of the discussion of the balancing test.80 The MCM states that a “[d]iscussion [within a rule] is intended by the drafters to serve as a treatise” in order to make users aware of principles or requirements derived from “Executive Order, judicial decisions, or other sources of binding law.”81 The following discussion section should appear in the rule directly after the general rule subsection, so that practitioners understand how to analyze the balancing test:

The balancing test of Mil. R. Evid. 311(a)(3) requires an objective analysis of the conduct of government personnel obtaining evidence as a result of an unlawful search or seizure. For deterrence to be appreciable, the conduct must be sufficiently deliberate that exclusion can meaningfully deter it, such as conduct that is deliberate, reckless, grossly negligent, or in some circumstances recurring or systemically negligent. Additionally, the conduct must be sufficiently culpable that such deterrence is worth the price paid by the justice system. The price of exclusion is something that offends the basic concepts of the criminal justice system, for instance letting a guilty defendant go free by excluding evidence. The pertinent analysis of deterrence and culpability is objective, not an inquiry into the subjective awareness of government personnel. The objective analysis is whether a reasonably well trained person acting in a government capacity would have known that the search was illegal in light of all the circumstances.

The harsh sanction of exclusion is not appropriate to deter objectively reasonable conduct. Moreover, negligent conduct that is objectively reasonable would not result in an appreciable deterrence, and any marginal deterrence would not outweigh the cost to the justice system.82

This proposed discussion will alert practitioners to the importance of the exclusionary rule’s balancing test requirement.83 Even if practitioners understand how to analyze the balancing test, MRE 311 should also provide the proper procedure for applying the exclusionary rule.

Delineating the Procedure

Providing guidance in the procedure section of the rule will ensure proper use of the rule. The addition of guidance to practitioners on the procedure of applying MRE 311 will parallel other rules of evidence that exclude otherwise relevant evidence.84 Rules 311, 412, 513, and 514 have similar structure—they all include the general rule, definitions, exceptions, and the procedure for applying the rule.85 Military Rule of Evidence 311(d), titled “Motions to Suppress and Objections,” is the procedure section of the rule; but, it does not explain the procedure the military judge should use when applying the rule.86 Military Rule of Evidence 311(d)(7) only discusses the timing of the military judge’s ruling.87 The title of subsection (d) of MRE 311 should change to “Procedure to Exclude Evidence from an Unlawful Search and Seizure,” and the following additional subsection should directly precede the subsection discussing the timing of the military judge’s ruling:

Guidance on Application. Before excluding evidence under this rule, the military judge must find that the evidence was obtained as a result of an unlawful search or seizure, and that exclusion would result in an appreciable deterrence of future unlawful searches or seizures, and that such deterrence outweighs the costs to the justice system. If the military judge concludes that the facts meet the requirements of the rule, evidence may still be admissible if the military judge determines that an exception under Mil. R. Evid. 311(c) applies.88

This new subsection ensures that practitioners know the proper procedure in applying the rule. In addition to understanding the balancing test and the procedure of applying MRE 311, practitioners would also benefit from a detailed analysis of the principles of the exclusionary rule.

Detailing the Analysis

As previous manuals have done, including a detailed analysis of the rule in the appendix of the MCM will guide interpretations of the law under the rule.89 The MCM states that an “[a]nalysis sets forth the nonbinding views of the drafters as to the basis for each rule” and that it “is intended to be a guide in interpretation.”90 The 2019 MCM does not provide an analysis to MRE 311; it only guides practitioners to the analysis in the appendix of the 2016 MCM.91 The analysis of MRE 311 should be restored to the appendix of the MCM, and a corrected version of the analysis is an appendix to this article.92 Modifying MRE 311 and adding an analysis for the rule will allow practitioners to both understand and properly apply the exclusionary rule.

Meaningless Conclusion

The balancing test of MRE 311 is not another exception to the exclusionary rule, nor is it a new concept. The balancing test incorporates principles from a line of cases that have spawned the “good faith” and “reliance” exceptions and thus subsumes these exceptions. The current version of MRE 311 neither explains how to analyze the balancing test nor properly applies the exclusionary rule. The rule modifications to MRE 311 proposed herein explain how to analyze the balancing test, explain the proper procedure for applying the rule, and put an analysis section back in the appendix of the MCM so that practitioners can correctly interpret the principles of the exclusionary rule. By incorporating these modifications into MRE 311, the rule will be more in line with Supreme Court case law, and it will be easier for practitioners to understand. TAL

 


Maj Mossor is the Senior Defense Counsel for the Marine Corps Defense Services Organization in Okinawa, Japan.



Appendix A. Military Rule of Evidence 31193

Rule 311. Evidence obtained from unlawful searches and seizures

(a) General rule. Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if:

(1) the accused makes a timely motion to suppress or an objection to the evidence under this rule;

(2) the accused had a reasonable expectation of privacy in the person, place, or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the Armed Forces; and

(3) exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

Discussion

The balancing test of Mil. R. Evid. 311(a)(3) requires an objective analysis of the conduct of government personnel obtaining evidence as a result of an unlawful search or seizure. For deterrence to be appreciable, the conduct must be sufficiently deliberate that exclusion can meaningfully deter it, such as conduct that is deliberate, reckless, grossly negligent, or in some circumstances recurring or systemically negligent. Additionally, the conduct must be sufficiently culpable that such deterrence is worth the price paid by the justice system. The price of exclusion is something that offends the basic concepts of the criminal justice system, for instance letting a guilty defendant go free by excluding evidence. The pertinent analysis of deterrence and culpability is objective, not an inquiry into the subjective awareness of government personnel. The objective analysis is whether a reasonably well trained person acting in a government capacity would have known that the search was illegal in light of all the circumstances.

The harsh sanction of exclusion is not appropriate to deter objectively reasonable conduct. Moreover, negligent conduct that is objectively reasonable would not result in an appreciable deterrence, and any marginal deterrence would not outweigh the cost to the justice system.

(b) Definition. As used in this rule, a search or seizure is “unlawful” if it was conducted, instigated, or participated in by:

(1) military personnel or their agents and was in violation of the Constitution of the United States as applied to members of the Armed Forces, a federal statute applicable to trials by court-martial that requires exclusion of evidence obtained in violation thereof, or Mil. R. Evid. 312–317;

(2) other officials or agents of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States or any political subdivision of such a State, Commonwealth, or possession, and was in violation of the Constitution of the United States, or is unlawful under the principles of law generally applied in the trial of criminal cases in the United States district courts involving a similar search or seizure; or

(3) officials of a foreign government or their agents, where evidence was obtained as a result of a foreign search or seizure that subjected the accused to gross and brutal maltreatment. A search or seizure is not “participated in” by a United States military or civilian official merely because that person is present at a search or seizure conducted in a foreign nation by officials of a foreign government or their agents, or because that person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign search or seizure.

(c) Exceptions.

(1) Impeachment. Evidence that was obtained as a result of an unlawful search or seizure may be used to impeach by contradiction the in-court testimony of the accused.

(2) Inevitable Discovery. Evidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made.

(3) Good Faith Execution of a Warrant or Search Authorization. Evidence that was obtained as a result of an unlawful search or seizure may be used if:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civilian authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

(4) Reliance on Statute or Binding Precedent. Evidence that was obtained as a result of an unlawful search or seizure may be used when the official seeking the evidence acted in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment.

(d) Motions to Suppress and Objections. Procedure to Exclude Evidence from an Unlawful Search and Seizure.

(1) Disclosure. Prior to arraignment, the prosecution must disclose to the defense all evidence seized from the person or property of the accused, or believed to be owned by the accused, or evidence derived therefrom, that it intends to offer into evidence against the accused at trial.

(2) Time Requirements.

(A) When evidence has been disclosed prior to arraignment under subdivision (d)(1), the defense must make any motion to suppress or objection under this rule prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the motion or objection.

(B) If the prosecution intends to offer evidence described in subdivision (d)(1) that was not disclosed prior to arraignment, the prosecution must provide timely notice to the military judge and to counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interest of justice.

(3) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence described in subdivision (d)(1). If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the search or seizure, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection.

(4) Challenging Probable Cause.

(A) Relevant Evidence. If the defense challenges evidence seized pursuant to a search warrant or search authorization on the ground that the warrant or authorization was not based upon probable cause, the evidence relevant to the motion is limited to evidence concerning the information actually presented to or otherwise known by the authorizing officer, except as provided in subdivision (d)(4)(B).

(B) False Statements. If the defense makes a substantial preliminary showing that a government agent included a false statement knowingly and intentionally or with reckless disregard for the truth in the information presented to the authorizing officer, and if the allegedly false statement is necessary to the finding of probable cause, the defense, upon request, is entitled to a hearing. At the hearing, the defense has the burden of establishing by a preponderance of the evidence the allegation of knowing and intentional falsity or reckless disregard for the truth. If the defense meets its burden, the prosecution has the burden of proving by a preponderance of the evidence, with the false information set aside, that the remaining information presented to the authorizing officer is sufficient to establish probable cause. If the prosecution does not meet its burden, the objection or motion must be granted unless the search is otherwise lawful under these rules.

(5) Burden and Standard of Proof.

(A) In general. When the defense makes an appropriate motion or objection under subdivision (d), the prosecution has the burden of proving by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure; that the deterrence of future unlawful searches or seizures is not appreciable or such deterrence does not outweigh the costs to the justice system of excluding the evidence; or that the evidence would have been obtained even if the unlawful search or seizure had not been made. that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of an authorization to search, seize, or apprehend or a search warrant or an arrest warrant; that the evidence was obtained by officials in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment; or that the deterrence of future unlawful searches or seizures is not appreciable or such deterrence does not outweigh the costs to the justice system of excluding the evidence.94

(B) Statement Following Apprehension. In addition to subdivision (d)(5)(A), a statement obtained from a person apprehended in a dwelling in violation of R.C.M. 302(d)(2) and (e), is admissible if the prosecution shows by a preponderance of the evidence that the apprehension was based on probable cause, the statement was made at a location outside the dwelling subsequent to the apprehension, and the statement was otherwise in compliance with these rules.

(C) Specific Grounds of Motion or Objection. When the military judge has required the defense to make a specific motion or objection under subdivision (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or objected to the evidence.

(6) Defense Evidence. The defense may present evidence relevant to the admissibility of evidence as to which there has been an appropriate motion or objection under this rule. An accused may testify for the limited purpose of contesting the legality of the search or seizure giving rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense must inform the military judge that the testimony is offered under subdivision (d). When the accused testifies under subdivision (d), the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(7) Guidance on Application. Before excluding evidence under this rule, the military judge must find that the evidence was obtained as a result of an unlawful search or seizure and that exclusion would result in an appreciable deterrence of future unlawful searches or seizures and that such deterrence outweighs the costs to the justice system. If the military judge concludes that the facts meet the requirements of the rule, evidence may still be admissible if the military judge determines that an exception under Mil. R. Evid. 311(c) applies.

(78) Rulings. The military judge must rule, prior to plea, upon any motion to suppress or objection to evidence made prior to plea unless, for good cause, the military judge orders that the ruling be deferred for determination at trial or after findings. The military judge may not defer ruling if doing so adversely affects a party’s right to appeal the ruling. The military judge must state essential findings of fact on the record when the ruling involves factual issues.

(89) Informing the Members. If a defense motion or objection under this rule is sustained in whole or in part, the court-martial members may not be informed of that fact except when the military judge must instruct the members to disregard evidence.

(e) Effect of Guilty Plea. Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all issues under the Fourth Amendment to the Constitution of the United States and Mil. R. Evid. 311–317 with respect to the offense, whether or not raised prior to plea.

Appendix B. Analysis of Military Rule of Evidence 31195

Rule 311. Evidence obtained from unlawful searches and seizures

Rules 311–317 express the manner in which the Fourth Amendment to the Constitution of the United States applies to trials by court-martial, Cf. Parker v. Levy, 417 U.S. 733 (1974).

(a) General rule. Rule 311(a) restates the basic exclusionary rule for evidence obtained from an unlawful search or seizure and is taken generally from Para. 152 of the 1969 Manual although much of the language of para. 152 has been deleted for purposes of both clarity and brevity. The Rule requires suppression of derivative as well as primary evidence and follows the 1969 Manual rule by expressly limiting exclusion of evidence to that resulting from unlawful searches and seizures involving governmental activity. Those persons whose actions may thus give rise to exclusion are listed in Rule 311(b) and are taken generally from Para. 152 with some expansion for purposes of clarity. Rule 311 recognizes that discovery of evidence may be so unrelated to an unlawful search or seizure as to escape exclusion because it was not “obtained as a result” of that search or seizure.

The Rule recognizes that searches and seizures are distinct acts the legality of which must be determined independently. Although a seizure will usually be unlawful if it follows an unlawful search, a seizure may be unlawful even if preceded by a lawful search. Thus, adequate cause to seize may be distinct from legality of the search or observations which preceded it. Note in this respect Rule 316(d)(4)(C)(c)(5)(C), Plain View.

(1) Objection. Rule 311(a)(1) requires that a motion to suppress or, as appropriate, an objection be made before evidence can be suppressed. Absent such motion or objection, the issue is waived. Rule 311(i)(d)(2)(A). See United States v. Robinson, 77 M.J. 303 (C.A.A.F. 2018).

(2) Adequate interest. Rule 311(a)(2) represents a complete redrafting of the standing requirements found in para. 152 of the 1969 Manual. The Committee viewed the Supreme Court decision in Rakas v. Illinois, 439 U.S. 128 (1978), as substantially modifying the Manual language. Indeed, the very use of the term “standing” was considered obsolete by a majority of the Committee. The Rule distinguishes between searches and seizure. To have sufficient interest to challenge a search, a person must have “a reasonable expectation of privacy in the person, place, or property searched.” “Reasonable expectation of privacy” was used in lieu of “legitimate expectation of privacy,” often used in Rakas, supra, as the Committee believed the two expressions to be identical. The Committee also considered that the expression “reasonable expectation” has a more settled meaning. Unlike the case of a search, an individual must have an interest distinct from an expectation of privacy to challenge a seizure. When a seizure is involved rather than a search the only invasion of one’s rights is the removal of the property in question. Thus, there must be some recognizable right to the property seized. Consequently, the Rule requires a “legitimate interest in the property or evidence seized.” This will normally mean some form of possessory interest. Adequate interest to challenge a seizure does not per se give adequate interest to challenge a prior search that may have resulted in the seizure.

The Rule also recognizes an accused’s rights to challenge a search or seizure when the right to do so would exist under the Constitution. Among other reasons, this provision was included because of the Supreme Court’s decision in Jones v. United States, 302 U.S. 257 (1960), which created what has been termed the “automatic standing rule.” The viability of Jones after Rakas and other cases is unclear, and the Rule will apply Jones only to the extent that Jones is constitutionally mandated.

1986 Amendment: The words “including seizures of the person” were added to expressly apply the exclusionary rule to unlawful apprehensions and arrests, that is, seizures of the person. Procedures governing apprehensions and arrests are contained in R.C.M. 302. See also Mil. R. Evid. 316(c)(b).

2016 Amendment: Rule 311(a)(3) incorporates the balancing test limiting the application of the exclusionary rule set forth in Herring v. United States, 555 U.S. 135 (2009), where the Supreme Court held that to trigger the exclusionary rule, “the deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” Id. at 147; see also United States v. Wicks, 73 M.J. 93, 104 (C.A.A.F. 2014) (“The exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs” (internal quotation marks omitted)).

2020 Amendment: A discussion section was added to the rule to explain how to analyze the balancing test and it is based on the principles set forth in United States v. Leon, 468 U.S. 897 (1984), expanded by Illinois v. Krull, 480 U.S. 340 (1987), and clarified by Herring v. United States, 555 U.S. 135 (2009).

(b) Nature of search or seizure. Rule 311(cb) defines “unlawful” searches and seizures and makes it clear that the treatment of a search or seizure varies depending on the status of the individual or group conducting the search or seizure.96*

(1) Military personnel. Rule 311(cb)(1) generally restates prior law. A violation of a military regulation alone will not require exclusion of any resulting evidence. However, a violation of such a regulation that gives rise to a reasonable expectation of privacy may require exclusion. Compare United States v. Dillard, 8 M.J. 213 (C.M.A. 1980), with United States v. Caceres, 440 U.S. 741 (1979).

(2) Other officials. Rule 311(cb)(2) requires that the legality of a search or seizure performed by officials of the United States, of the District of Columbia, or of a state, commonwealth, or possession or political subdivision thereof, be determined by the principles of law applied by the United States district courts when resolving the legality of such a search or seizure.

(3) Officials of a foreign government or their agents. This provision is taken in part from United States v. Jordan, 1 M.J. 334 (C.M.A. 1976). After careful analysis, a majority of the Committee concluded that portion of the Jordan opinion which purported to require that such foreign searches be shown to have complied with foreign law is dicta and lacks any specific legal authority to support it. Further the Committee noted the fact that most foreign nations lack any law of search and seizure and that in some cases, e.g., Germany, such law as may exist is purely theoretical and not subject to determination. The Jordan requirement thus unduly complicates trial without supplying any protection to the accused. Consequently, the Rule omits the requirement in favor of a basic due process test. In determining which version of the various due process phrasings to utilize, a majority of the Committee chose to use the language found in para. 150b of the 1969 Manual rather than the language found in Jordan (which requires that the evidence not shock the conscience of the court) believing the Manual language is more appropriate to the circumstances involved.

Rule 311(cb) also indicates that persons who are present at a foreign search or seizure conducted in a foreign nation have “not participated in” that search or seizure due either to their mere presence or because of any actions taken to mitigate possible damage to property or person. The Rule thus clarifies United States v. Jordan, 1 M.J. 334 (C.M.A. 1976) which stated that the Fourth Amendment would be applicable to searches and seizures conducted abroad by foreign police when United States personnel participate in them. The Court’s intent in Jordan was to prevent American authorities from sidestepping Constitutional protections by using foreign personnel to conduct a search or seizure that would have been unlawful if conducted by Americans. This intention is safeguarded by the Rule, which applies the Rules and the Fourth Amendment when military personnel or their agents conduct, instigate, or participate in a search or seizure. The Rule only clarifies the circumstances in which a United States official will be deemed to have participated in a foreign search or seizure. This follows dicta in United States v. Jones, 6 M.J. 226, 230 (C.M.A. 1979), which would require an “element of causation,” rather than mere presence. It seems apparent that an American service member is far more likely to be well served by United States presence—which might mitigate foreign conduct—than by its absence. Further, international treaties frequently require United States cooperation with foreign law enforcement. Thus, the Rule serves all purposes by prohibiting conduct by United States officials which might improperly support a search or seizure which would be unlawful if conducted in the United States while protecting both the accused and international relations.

The Rule also permits use of United States personnel as interpreters viewing such action as a neutral activity normally of potential advantage to the accused. Similarly the Rule permits personnel to take steps to protect the person or property of the accused because such actions are clearly in the best interests of the accused.

(c) Exceptions: Rule 311(b)(c)(1) states incorporates the impeachment exception from the holding of Walder v. United States, 347 U.S. 62 (1954), and restates with minor change the rule as found in para. 152 of the 1969 Manual.

1986 Amendment: Rule 311(b)(2) was added to incorporate the “inevitable discovery” exception to the exclusionary rule of Nix v. Williams, 467 U.S. 431 (1984). There is authority for the proposition that this exception applies to the primary evidence tainted by an illegal search or seizure, as well as to evidence derived secondarily from a prior illegal search or seizure. United States v. Romero, 692 F.2d 699 (10th Cir. 1982), cited with approval in Nix v. Williams, supra, 467 U.S. 431, n.2. See also United States v. Kozak, 12 M.J. 389 (C.M.A. 1982); United States v. Yandell, 13 M.J. 616 (A.F.C.M.R. 1982). Contra, United States v. Ward, 19 M.J. 505 (A.F.C.M.R. 1984). There is also authority for the proposition that the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the investigative authority and were being actively pursued prior to the occurrence of the illegal conduct which results in discovery of the evidence (United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1984)).

As a logical extension of the holdings in Nix and United States v. Kozak, supra, the leading military case, the inevitable discovery exception should also apply to evidence derived from apprehensions and arrests determined to be illegal under R.C.M. 302 (State v. Nagel, 308 N.W.2d 539 (N.D. 1981) (alternative holding)). The prosecution may prove that, notwithstanding the illegality of the apprehension or arrest, evidence derived therefrom is admissible under the inevitable discovery exception.

Rule 311(b)(3) was added in 1986 to incorporate the “good faith” exception to the exclusionary rule based on United States v. Leon, 468 U.S. 897 (1984) and Massachusetts v. Sheppard, 468 U.S. 981 (1984). The exception applies to search warrants and authorizations to search or seize issued by competent civilian authority, military judges, military magistrates, and commanders. The test for determining whether the applicant acted in good faith is whether a reasonably well-trained law enforcement officer would have known the search or seizure was illegal despite the authorization. In Leon and Sheppard, the applicant’s good faith was enhanced by their prior consultation with attorneys.

The rationale articulated in Leon and Sheppard that the deterrence basis of the exclusionary rule does not apply to magistrates extends with equal force to search or seizure authorizations issued by commanders who are neutral and detached, as defined in United States v. Ezell, 6 M.J. 307 (C.M.A. 1979). The United States Court of Military Appeals demonstrated in United States v. Stuckey, 10 M.J. 347 (C.M.A. 1981), that commanders cannot be equated constitutionally to magistrates. As a result, commanders’ authorizations may be closely scrutinized for evidence of neutrality in deciding whether this exception will apply. In a particular case, evidence that the commander received the advice of a judge advocate prior to authorizing the search or seizure may be an important consideration. Other considerations may include those enumerated in Ezell and: the level of command of the authorizing commander; whether the commander had training in the rules relating to search and seizure; whether the rule governing the search or seizure being litigated was clear; whether the evidence supporting the authorization was given under oath; whether the authorization was reduced to writing; and whether the defect in the authorization was one of form or substance.

As a logical extension of the holdings in Leon and Sheppard, the good faith exception also applies to evidence derived from apprehensions and arrests which are effected pursuant to an authorization or warrant, but which are subsequently determined to have been defective under R.C.M. 302 (United States v. Mahoney, 712 F.2d 956 (5th Cir. 1983); United States v. Beck, 729 F.2d 1329 (11th Cir. 1984)). The authorization or warrant must, however, meet the conditions set forth in Rule 311(b)(3).

It is intended that the good faith exception will apply to both primary and derivative evidence.

2016 Amendment: Rule 311(c)(4) was added. It adopts the expansion of the “good faith” exception to the exclusionary rule set forth in Illinois v. Krull, 480 U.S. 340 (1987), where the Supreme Court held that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held violative of the Fourth Amendment.

2020 Amendment: Deleted both the “good faith” and “reliance” exceptions from the rule because they were subsumed by the balancing test of Rule 311(a)(3). The “good faith” exception was based on the holding United States v. Leon, 468 U.S. 897 (1984). See also Massachusetts v. Sheppard, 468 U.S. 981 (1984). The “reliance” exception was derived from the holding of Illinois v. Krull, 480 U.S. 340 (1987). These exceptions relied on an objectively reasonable standard, which is the same standard of the balancing test. Therefore, any objectively reasonable conduct that would have met one of these exceptions would not have resulted in exclusion under the balancing test and been found admissible without considering the exceptions.

(d) Motion to suppress and objections. Procedure to Exclude Evidence from an Unlawful Search and Seizure. Rule 311(d) provides for challenging evidence obtained as a result of an allegedly unlawful search or seizure. The procedure, normally that of a motion to suppress, is intended with a small difference in the disclosure requirements to duplicate that required by Rule 304(d) for confessions and admissions, the Analysis of which is equally applicable here.

Rule 311(d)(1) differs from Rule 304(c)(1) in that it is applicable only to evidence that the prosecution intends to offer against the accused. The broader disclosure provision for statements by the accused was considered unnecessary. Like Rule 304(d)(2)(C), Rule 311(d)(2)(C) provides expressly for derivative evidence disclosure of which is not mandatory as it may be unclear to the prosecution exactly what is derivative of a search or seizure. The Rule thus clarifies the situation.

(2) Time Requirements. Rule 311(d)(2) “unambiguously establishes that failure to object is waiver, and it is not a rule that uses the term ‘waiver’ but actually means ‘forfeiture.’” United States v. Robinson, 77 M.J. 303, 307 (C.A.A.F. 2018).

(g4) Scope of motions and objections c Challenging Probable Cause. Rule 311(d)(4)(A) follows the Supreme Court decision in Franks v. Delaware, 422 U.S. 928 (1978), see also United States v. Turck, 49 C.M.R. 49, 53 (A.F.C.M.R. 1974), with minor modifications made to adopt the decision to military procedures. Although Franks involved perjured affidavits by police, Rule 311(a) is made applicable to information given by government agents because of the governmental status of members of the armed services. The Rule is not intended to reach misrepresentations made by informants without any official connection.97*

1995 Amendment: Subsection (d)(4)(B) was amended to clarify that in order for the defense to prevail on an objection or motion under this rule, it must establish, inter alia, that the falsity of the evidence was “knowing and intentional” or in reckless disregard for the truth. Accord Franks v. Delaware, 438 U.S. 154 (1978).

(e5) Burden of proof. Rule 311(e)(d)(5) requires that a preponderance of the evidence standard be used in determining search and seizure questions. Lego v. Twomey, 404 U.S. 477 (1972). Where the validity of a consent to search or seize is involved, a higher standard of “clear and convincing,” is applied by Rule 314(e). This restates prior law.

February 1986 Amendment: Subparagraphs (e)(1) and (2) (d)(5)(A) was amended to state the burden of proof for the inevitable discovery as prescribed in Nix v. Williams, 467 U.S. 431 (1984) and United States v. Leon, 468 U.S. 897 (1984).

1993 Amendment: The amendment to Mil. R. Evid. 311(e)(2)(d)(5)(B) was made to conform Rule 311 to the rule of New York v. Harris, 495 U.S. 14 (1990). The purpose behind the exclusion of derivative evidence found during the course of an unlawful apprehension in a dwelling is to protect the physical integrity of the dwelling not to protect suspects from subsequent lawful police interrogation. See id. A suspect’s subsequent statement made at another location that is the product of lawful police interrogation is not the fruit of the unlawful apprehension. The amendment also contains language added to reflect the “good faith” exception to the exclusionary role set forth in United States v. Leon, 468 U.S. 897 (1984), and the “inevitable discovery” exception set forth in Nix v. Williams, 467 U.S. 431 (1984).

2016 Amendment: Subparagraph (d)(5)(A) was amended adding the balancing test of subparagraph (a)(3) of the rule as prescribed in Herring v. United States, 555 U.S. 135 (2009).

2020 Amendment: Subparagraph (d)(5)(A) was rearranged, deleting language from the “good faith” and “reliance” exceptions and placing the burden of the Rule 311(a)(3) balancing test before the burden of the inevitable discovery exception.

(f6) Defense evidence. Rule 311(d)(6) restates prior law and makes it clear that although an accused is sheltered from any use at trial of a statement made while challenging a search or seizure, such statement may be used in a subsequent “prosecution for perjury, false swearing or the making of a false official statement.”

(7) Guidance on Application. Rule 311(d)(7) describes the procedure for military judges to use when applying the exclusionary rule. Simply put, the proper procedure of the rule is the military judge answering the followed five questions. First, was evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity? Second, did the accused makes a timely motion to suppress or an objection to evidence under this rule? Third, did the accused had a reasonable expectation of privacy in the person, place, or property searched? Fourth, would the exclusion of the evidence result in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system? Lastly, if exclusion is appropriate under the rule, do any exceptions apply that permits admission of the evidence over the rule? See Davis v. United States, 564 U.S. 229 (2011).

2020 Amendment: Subparagraph (d)(7) was amended to the rule in order provide practitioners guidance on the proper procedure when applying the exclusionary rule, that is to analyze whether the requirement of the rule are met before considering exceptions. See Davis v. United States, 564 U.S. 229 (2011) (the Court acknowledged that the inevitable discovery would have applied to the case, but the evidence was already admissible under the balancing test).

(h9) Objections to evidence seized unlawfully. Rule 311(h)(d)(9) is new and is included for reasons of clarity.

(ie) Effect of guilty plea. Rule 311(i)(e) restates prior law. See, e.g., United States v. Hamil, 15 U.S.C.M.A. 110, 35 C.M.R. 82 (1964).

2013 Amendment. The definition of “unlawful” was moved from subsection (c) to subsection (b) and now immediately precedes the subsection in which the term is first used in the rule. Other subsections were moved and now generally follow the order in which the issues described in the subsections arise at trial. The subsections were renumbered and titled; this change makes it easier for the practitioner to find the relevant part of the rule. Former subsection (d)(2)(C), addressing a motion to suppress derivative evidence, was subsumed into subsection (d)(1). This change reflects how a motion to suppress seized evidence must follow the same procedural requirements as a motion to suppress derivative evidence.

This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility

2020 Amendment. Besides the amendments to the rule discussed supra, the amendment rearranged the appendix to correspond with the 2013 rearrangement of the rule and corrected errors left from that amendment, bring the analysis up to date with the current version of the rule.

Notes

1. Herring v. United States, 555 U.S. 135, 141 n.2 (2009) (Chief Justice Roberts delivered the opinion of the Court and in this footnote dismantles Justice Ginsburg’s dissenting opinion.).

2. Id. The titles of the main headers are a satirical repartée to Justice Ginsburg’s grandiose vision of the exclusionary rule, because there is nothing “majestic” about Military Rule of Evidence (MRE) 311. See id. at 148 (Ginsburg, J., dissenting, joined by Justices Stevens, Souter, and Breyer) (rejecting the Court’s conception of the exclusionary rule and arguing for “a more majestic conception” (internal quotation and citation omitted)).

3. See Mapp v. Ohio, 367 U.S. 643 (1961) (Miss Dollree Mapp was convicted of possessing obscene literature in violation of state law—i.e., she had pornographic books and pictures, officers seeking to question a man about a recent bombing of Don King’s house arrived at Miss Mapp’s residence in Cleveland and requesting to enter and search, but she refused to allow them to enter without a warrant. Police then forcibly gained entrance and produced a paper claiming to be a warrant, which Miss Mapp grabbed and placed in her bosom. The Supreme Court found this to be an illegal warrantless search in violation of the Fourth Amendment and excluded the seized evidence from a criminal trial.); Weeks v. United States, 232 U.S. 383 (1914) (Mr. Fremont Weeks was charged with the use of the “mails” to send tickets representing chances at a lottery—i.e., sending junk mail, while he was absent at his “daily vocation,” government officials unlawfully and without a warrant searched his home. The Supreme Court reversed the lower court’s decision to admit unlawfully seized evidence because the Government had violated the Fourth Amendment.). See generally William Yardley, Dollree Mapp, Who Defied Police Search in Landmark Case, Is Dead, N.Y. Times (Dec. 9, 2014), https://www.nytimes.com/2014/12/10/us/dollree-mapp-who-defied-police-search-in-landmark-case-is-dead.html (gives Miss Mapp’s history and provides context for what lead to the landmark case of Mapp v. Ohio).

4. Manual for Courts-Martial, United States, Mil. R. Evid. 311(a)(3) (2016) [hereinafter 2016 MCM] (the Manual for Courts-Martial (MCM) was updated in 2018, but MRE 311(a)(3) did not change). See Exec. Order. No. 13730, 81 Fed. Reg. 33,352 (May 20, 2016) (amending MRE 311).

5. See 2016 MCM, supra note 4, Mil. R. Evid. 311.

6. See id.

7. Id. See also Herring v. United States, 555 U.S. 135 (2009).

8. Davis v. United States, 564 U.S. 229, 240 (2011).

9. Herring, 555 U.S. at 142. See United States v. Leon, 468 U.S. 897, 908 (1984).

10. See Herring, 555 U.S. at 148–49 (quoting Leon, 468 U.S. at 907-08).

11. See infra apps. A & B (proposed modified MRE 311 and the corrected analysis for the appendix of the MCM are appendices to this article).

12. U.S. Const. amend. IV (full text states: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).

13. See id. See also Arizona v. Evans, 514 U.S. 1, 10 (1995) (the Court recognized “that the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands” (citing Leon, 468 U.S. at 906)).

14. Davis v. United States, 564 U.S. 229, 236 (2011) (first quoting Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363 (1998); and then quoting Elkins v. United States, 364 U.S. 206, 217 (1960)). See also Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914).

15. United States v. Calandra, 414 U.S. 338, 348 (1974) (Mr. John Calandra was a mobster in the Cleveland crime family and while he was being investigated for illegal gambling, federal agents searched his place of business pursuant to a warrant for evidence of illegal gambling operations. During the search, an agent that was aware of a separate investigation for illegal loansharking, discovered evidence of loansharking. The Supreme Court held that the evidence could be suppressed at a criminal trial, but that the exclusionary rule did not extend to grand jury proceedings, because such an extension would not result in an incremental deterrent effect to prevent future police misconduct.). See generally Edward P. Whelan, The Life and Hard Times of Cleveland’s Mafia: How Danny Greene’s Murder Exploded the Godfather Myth, Cleveland Mag. (Feb. 15, 2011, 12:00 AM), https://clevelandmagazine.com/entertainment/film-tv/articles/the-life-and-hard-times-of-cleveland’s-mafia-how-danny-greene’s-murder-exploded-the-godfather-myth (exploring the final years of the Cleveland Mob and discusses Mr. John Calandra’s role).

16. Herring v. United States, 555 U.S. 135, 144 (2009).

17. Id. at 140 (citing Illinois v. Gates, 462 U.S. 213, 223 (1983)).

18. Eugene R. Milhizer, Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule, 211 Mil. L. Rev. 211, 214 (2012) (The article is from a speech presented at the 54th Judge’s Course at The Judge Advocate General’s School on 5 May 2011, and suggests that evidence obtained from an unlawful search and seizure should always be admitted and that the exclusionary rule should be abolished.).

19. See Lieutenant Colonel Patrick Walsh and Paul Sullivan, The Posse Comitatus Act and the Fourth Amendment’s Exclusionary Rule, 8 Am. U. Nat’l Sec. L. Brief 3, 23 (2018) (examining the use of the military as domestic law enforcement and how the exclusionary rule is misused when courts apply it to deter the military’s domestic law enforcement activities that may violate the Posse Comitatus Act).

20. See Davis v. United States, 564 U.S. 229, 259 (2011) (Breyer, J., dissenting, joined by Justice Ginsburg) (arguing that the exclusionary rule is being “watered-down,” and will only protect ordinary Americans from “searches and seizures that are egregiously unreasonable”); Herring, 555 U.S. at 148 (Ginsburg, J., dissenting, joined by Justices Stevens, Souter, and Breyer) (embracing “‘a more majestic conception’ of the Fourth Amendment and its adjunct, the exclusionary rule” in that exclusion is a remedy for a violation and not a mere deterrent (quoting Arizona v. Evans, 514 U.S. 1, 18 (1995) (Stevens, J., dissenting))); Calandra, 414 U.S. at 357 (Brennan, J., dissenting) (proposes the rule’s purpose is judicial integrity, “enabling the judiciary to avoid the taint of partnership in official lawlessness”). See also Wayne R. LaFave, The Smell of Herring: A Critique of the Supreme Court’s Latest Assault on the Exclusionary Rule, 99 J. Crim. L. & Criminology 757 (2009) (discussing that the ruling in Herring is a sign of continued assault against the exclusionary rule); Scott E. Sundby & Lucy B. Ricca, Is the Exclusionary Rule a Good Way of Enforcing Fourth Amendment Values?: The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule, 43 Tex. L. Rev. 391 (2010) (championing Justice Ginsburg’s majestic dissent in Herring as the correct conception of the exclusionary rule); Claire Angelique Nolasco, Rolando V. del Carmen, & Michael S. Vaughn, What Herring Hath Wrought: An Analysis of Post-Herring Cases in the Federal Courts, 38 Am. J. Crim. L. 221 (2011) (postulating that the ruling in Herring has weakened the exclusionary rule by “significantly loosen[ing] the rule and, in effect, makes its boundaries difficult to delineate”).

21. Davis, 564 U.S. at 236–37 (citing Herring, 555 U.S. at 141; United States v. Leon, 468 U.S. 897, 909 (1984); Elkins v. United States, 364 U.S. 206, 217 (1960)). See Stone v. Powell, 428 U.S. 465, 486 (1976) (“The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights.”); Calandra, 414 U.S. at 347–55 (“the rule is...designed to safeguard Fourth Amendment rights through its deterrent effect”). See also Illinois v. Krull, 480 U.S. 340, 352 (1987) (“the exclusionary rule was historically designed ‘to deter police misconduct’” (quoting Leon, 468 U.S. at 916)).

22. Herring, 555 U.S. at 141.

23. Davis, 564 U.S. at 236 (quoting Stone, 428 U.S. at 486).

24. Herring, 555 U.S. at 140–41 (first quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006); then quoting Leon, 468 U.S. at 909 (internal quotation marks and citation omitted)).

25. 2016 MCM, supra note 4, app. 22 at 20 (the 2016 MCM is cited here, because the analysis of Military Rule of Evidence 311 in the 2019 MCM appendix explicitly incorporates the analysis in the 2016 MCM appendix).

26. Herring, 555 U.S. at 144 (Mr. Bennie Dean Herring was searched incident to an arrest pursuant to an outstanding warrant for a failure to appear on felony charges, but after the search was conducted, it was discovered that the warrant database was not up to date and that the warrant had been recalled five months earlier. The Supreme Court held that the evidence was admissible and concluded that the conduct was negligent and exclusion would not result in an appreciable deterrence.).

27. Id. at 144.

28. Id. at 142 (quoting Leon, 468 U.S. at 908).

29. See id. at 141–45.

30. Leon, 468 U.S. at 907.

31. Illinois v. Krull, 480 U.S. 340, 352-53 (1987) (quoting Leon, 468 U.S. at 907).

32. 2016 MCM, supra note 4, app. 22 at 20. See Krull, 480 U.S. at 352–53 (the possible benefit of applying the exclusionary rule must be weighed against the social costs); Leon, 468 U.S. at 907–10 (if the benefit of suppressing evidence is marginal or nonexistent, then deterrence cannot justify the “substantial costs of exclusion”). See also United States v. Janis, 428 U.S. 433, 454 (1976) (the Court concluded that “exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion”); United States v. Calandra, 414 U.S. 338, 354 (1974) (the Court believed that the damage of extending the exclusionary rule to a grand jury process “outweighs the benefit of any possible incremental deterrent effect”).

33. Herring, 555 U.S. at 145 (internal quotation marks and citation omitted).

34. Id. at 145 (quoting Leon, 468 U.S. at 922).

35. Davis v. United States, 564 U.S. 229, 241 (2011) (quoting Leon, 468 U.S. at 919).

36. Herring, 555 U.S. at 147–48 (quoting People v. Defore, 242 N.Y. 13, 21 (1926)).

37. Manual for Courts-Martial, United States, Mil. R. Evid. 311(c) (2019) [hereinafter 2019 MCM].

38. Id. Mil. R. Evid. 311(c)(3).

39. 2016 MCM, supra note 4, app. 22 at 20. See Leon, 468 U.S. 897 (Mr. Alberto Leon was involved in dealing cocaine and Quaaludes in Burbank, CA. Law enforcement searched Mr. Leon and his residence pursuant to a facially valid warrant, but the lower court found that there was not probable cause to support the warrant. The Supreme Court found that the officers objectively reasonably relied on the warrant and that “application of the extreme sanction of exclusion was inappropriate.”).

40. Leon, 468 U.S. at 919–20.

41. Id. at 921–22.

42. See Illinois v. Krull, 480 U.S. 340 (1987).

43. 2019 MCM, supra note 37, Mil. R. Evid. 311(c)(4).

44. 2016 MCM, supra note 4, app. 22 at 21. See Krull, 480 U.S. 340 (Mr. Albert Krull operated a wrecking yard that was in the possession of at least three stolen vehicles that were discovered during a search pursuant to a state statute that permitted state officials to inspect records of wrecking yards, but the statute was later found to be unconstitutional. The Supreme Court concluded that the exclusionary rule did not apply because the detective “relied, in objectively good faith, on a statute.”).

45. Krull, 480 U.S. at 352–60.

46. Id. at 349–50.

47. 2019 MCM, supra note 37, Mil. R. Evid. 311(a)(3).

48. 2016 MCM, supra note 4, app. 22 at 20. See Herring v. United States, 555 U.S. 135 (2009).

49. 2016 MCM, supra note 4, app. 22 at 20. See United States v. Leon, 468 U.S. 897 (1984).

50. 2016 MCM, supra note 4, app. 22 at 21. See Krull, 480 U.S. 340.

51. See Herring, 555 U.S. at 142 (explaining that the principles for the balancing test are consistent with the holding in Leon and that Krull extends the Leon holding).

52. Davis v. United States, 564 U.S. 229, 238 (2011) (quoting Herring, 555 U.S. at 143).

53. Herring, 555 U.S. at 142 (quoting Leon, 468 U.S. at 922).

54. Davis, 564 U.S. at 238 (first quoting Leon, 468 U.S. at 922; and then quoting Herring, 555 U.S. at 143).

55. See 2019 MCM, supra note 37, Mil. R. Evid. 311. See also Davis, 564 U.S. 229; Herring, 555 U.S. 135. Cf. United States v. Epps, 77 M.J. 339, 347–49 (C.A.A.F. 2018) (The Court first finds that the inevitable discovery exception applies ,and then acknowledges that even if it did not apply that “any marginal deterrent benefit to be gained is far outweighed by the heavy costs of exclusion.”); United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (The Court follows the balancing test from Herring and determines that the exclusionary rule does not apply, but only after finding that no exceptions apply to the facts.).

56. 2019 MCM, supra note 37, Mil. R. Evid. 311(a) (the “General Rule” listing the requirements of the rule).

57. Id.

58. Id. Mil. R. Evid. 311(a)(1).

59. Id. Mil. R. Evid. 311(a)(2).

60. Id. Mil. R. Evid. 311(a)(3).

61. Id. Mil. R. Evid. 311(c)(1)-(4).

62. See id. Mil. R. Evid. 311(a)(1)-(2).

63. See United States v. Leon, 468 U.S. 897 (1984); 2019 MCM, supra note 37, Mil. R. Evid. 311(c)(3).

64. See Illinois v. Krull, 480 U.S. 340, 349-50 (1987); 2019 MCM, supra note 37, Mil. R. Evid. 311(c)(4).

65. See Herring v. United States, 555 U.S. 135, 142 (2009); 2019 MCM, supra note 37, Mil. R. Evid. 311(a)(3).

66. See 2019 MCM, supra note 37, Mil. R. Evid. 311(c)(3)-(4).

67. See Davis v. United States, 564 U.S. 229 (2011) (Mr. Willie Gene Davis was a convicted felon riding in a vehicle that was pulled over, and police arrested him for providing a false name. Additionally, pursuant to appellate precedent that was later overturned, police searched the vehicle and discovered a firearm in Mr. Davis’s jacket. The Supreme Court held that since the police in this case were relying on binding appellate precedent, the exclusionary rule did not apply.)

68. Id. at 239.

69. Id. at 241.

70. Id. at 244.

71. Fred L. Borch, The Military Rules of Evidence: A Short History of Their Origin and Adoption at Courts-Martial, Army Law., June 2012, at 9, 12 (explaining that while the Military Rules of Evidence are well accepted today, they had a tumultuous origin).

72. 2019 MCM, supra note 37, Mil. R. Evid. 311.

73. Manual for Courts-Martial, United States, Mil. R. Evid. 311 (Supp. 2014) [hereinafter Supp. 2014 MCM]. See Exec. Order. No. 13,643, 78 Fed. Reg. 29,566 (2013) (amending Military Rule of Evidence 311).

74. Supp. 2014 MCM, supra note 73, Mil. R. Evid. 311(b).

75. 2016 MCM, supra note 4, Mil. R. Evid. 311(c)(4) (“Reliance on Statute. Evidence that was obtained as a result of an unlawful search or seizure may be used when the official seeking the evidence acts in objectively reasonable reliance on a statute later held violative of the Fourth Amendment.”). See Exec. Order. No. 13,730, 81 Fed. Reg. 33,352 (2016) (amending Military Rule of Evidence (MRE) 311).

76. 2019 MCM, supra note 37, Mil. R. Evid. 311(c)(4) (adding the words “or binding precedent” after the word “statute”); 2019 MCM, supra note 37, app. 16 at 2. See Exec. Order. No. 13,825, 83 Fed. Reg. 9899 (2018) (amending MRE 311).

77. 2019 MCM, supra note 37, Mil. R. Evid. 311(a).

78. See id. Mil. R. Evid. 311(b).

79. See Milhizer, supra note 18, at 214.

80. See supra Meager Exceptions and Analysis.

81. 2019 MCM, supra note 37, app. 15 at 2.

82. Infra app. A. See Herring v. United States, 555 U.S. 135 (2009); Illinois v. Krull, 480 U.S. 340 (1987); United States v. Leon, 468 U.S. 897 (1984).

83. See Herring, 555 U.S. 135. See also 2019 MCM, supra note 37, app. 15 at 2.

84. See 2019 MCM, supra note 37, Mil. R. Evid. 412(c)(2)(3) (directing the military judge that evidence offered to prove a victim engaged in other sexual behavior or the victim’s sexual predisposition is inadmissible unless the requirements for one of the enumerated exceptions are met); 2019 MCM, supra note 37, Mil. R. Evid. 513(e) (directing the military judge that evidence of confidential communications between the patient and a psychotherapist are inadmissible unless the requirements for one of the enumerated exceptions are met); 2019 MCM, supra note 37, Mil. R. Evid. 514(e) (directing the military judge that evidence of confidential communications between the victim and the victim advocate are inadmissible unless the requirements for one of the enumerated exceptions are met).

85. 2019 MCM, supra note 37, Mil. R. Evid. 311 (subdivision (a) is the “General Rule,” subdivision (b) is the “Definition” of a person acting in a government capacity, subdivision (c) is the “Exceptions,” and subdivision (d) is the procedure, but is titled “Motions to Suppress and Objections”); 2019 MCM, supra note 37, Mil. R. Evid. 412 (subdivision (a) is the general rule titled “Evidence generally inadmissible,” subdivision (b) is the “Exceptions,” and subdivision (d) is the procedure titled “Procedure to determine admissibility”); 2019 MCM, supra note 37, Mil. R. Evid. 513 (subdivision (a) is the “General Rule,” subdivision (b) are the “Definitions,” subdivision (d) is the “Exceptions, and subdivision (e) is the procedure titled “Procedure to Determine Admissibility of Patient Records or Communications”); 2019 MCM, supra note 37, Mil. R. Evid. 514 (subdivision (a) is the “General Rule,” subdivision (b) is the “Definitions,” subdivision (d) is the “Exceptions,” and subdivision (e) is the procedure titled “Procedure to Determine Admissibility of Victim Records of Communication”).

86. 2019 MCM, supra note 37, Mil. R. Evid. 311(d) (subdivision (d)(1) explains when evidence should be disclosed, subdivision (d)(2) provides the time requirement for making a motion and objection under the rule, subdivision (d)(3) discusses the requirement for specificity of a motion or objection, subdivision (d)(4) discusses challenging probable cause of a search warrant or authorization, subdivision (d)(5) discusses the burden of proof applied to the parties when arguing a motion or objection, subdivision (d)(6) discusses the evidence that the defense may present in support of a motion or objection, subdivision (d)(7) discusses the timing of the military judge’s ruling on a motion or objection, and subdivision (d)(8) discusses how to inform the members when a motion or objection is sustained and evidence is excluded).

87. 2019 MCM, supra note 37, Mil. R. Evid. 311(d)(7) (“Rulings. The military judge must rule, prior to plea, upon any motion to suppress or objection to evidence made prior to plea unless, for good cause, the military judge orders that the ruling be deferred for determination at trial or after findings. The military judge may not defer ruling if doing so adversely affects a party’s right to appeal the ruling. The military judge must state essential findings of fact on the record when the ruling involves factual issues.”).

88. Infra app. A. See Davis v. United States, 564 U.S. 229 (2011).

89. See 2016 MCM, supra note 4, app. 22 at 19; Supp. 2014 MCM, supra note 73, app 22 at 20.

90. 2019 MCM, supra note 37, app. 15 at 2.

91. See 2019 MCM, supra note 37, app. 16 at 2; 2016 MCM, supra note 3, app. 22 at 19.

92. See infra app. B.

93. Modifications are underlined and deletions have a strike through them.

94. This section is arranged in line with the correct procedure for applying the rule. This article did not discuss this change, because it is not substantive and the error was likely an administrative oversight of the drafters. The drafters presumably placed the balancing test at the end of this subdivision without consideration of inserting it in the order it should appear.

95.As with the rule modifications in appendix A, supra, the modifications are underlined and deletions have a strike through them. The analysis of the definition section is moved before the exceptions section to reflect the rule. The Challenging Probable Cause section was moved to correspond with the rule.