Search and Seizure: Divided court affirms suppression of child sexual abuse evidence

Where a warrant allowed seizure of a cell phone but did not authorize its search, but investigators nevertheless searched the phone and found evidence of child sexual abuse material, a divided court affirmed suppression of the evidence. The government cannot fall back on the good faith exception when it unreasonably exceeds the scope of an unambiguous warrant.

Background

In October 2022, investigators with the Naval Criminal Investigation Service, or NCIS, obtained a military warrant to seize the cell phone of Joshua Lee Ray — but not to search it. In contravention of the express terms of that warrant, the investigators searched appellee’s phone and found evidence of child sexual abuse material. Appellee moved to suppress the evidence, arguing that the search violated the Fourth Amendment because the warrant did not authorize the NCIS to search his phone. The district court granted appellee’s motion.

Good faith

The government argues the good faith exception announced in United States v. Leon, 468 U.S. 897 (1984), justified the NCIS’s search of appellee’s cell phone. To access the good faith exception, the government argues for the first time on appeal that the command authorization for search and seizure, or CASS, the military equivalent of a search warrant, was deficient for a lack of particularity.

The CASS at issue in this case suffers no particularity error, plain or otherwise. It simply did not authorize the NCIS to search appellee’s phone. That conclusion, taken from a plain reading of the document, is underscored by the factual record in this appeal, to which the government has conceded.

Namely, that Commander Washburn did not verbally authorize the special agent (Smith) to search appellee’s cell phone, the CASS did not incorporate Smith’s affidavit and the CASS contained no limitation on the NCIS’s search of appellee’s phone. Indeed, it could not contain any such limitation because, to repeat, the CASS did not authorize the NCIS to search appellee’s cell phone.

Per the government’s theory, any warrant that does not authorize a search of a particular object or person is thereby deficient for lack of particularity. To accept that premise, and use it as a stepping stone to the Leon good faith exception, would facilitate an unfettered and unlimited “exploratory rummaging” at odds with the Fourth Amendment protections set down by our Founders. That, the court will not do.

Beyond that, there is an inherent tension between the government’s particularity theory and its reliance upon the good faith exception. Assuming that the government has correctly alleged a Fourth Amendment particularity error in the CASS, then it has alleged the gravest one possible: a total omission of the item to be searched. This level of deficiency certainly renders a warrant “so facially deficient . . . that the executing officers [could not] reasonably presume it to be valid.”

To correctly frame the conduct at issue in this appeal, the NCIS clearly exceeded the scope of a valid warrant. Nonetheless, the government still argues that the good faith exception applies because, according to the government, Maryland v. Garrison, 480 U.S. 79 (1987) establishes that the good faith exception applies even in this context.

The court does not read Garrison as an extension of the Leon good faith exception to the execution of a valid warrant. Rather, Garrison establishes the more limited rule that there is no Fourth Amendment violation at all where officers reasonably interpret and reasonably execute a valid but ambiguous warrant. The valid warrant in Garrison turned out to be overbroad, but the officers’ obtainment and execution of that warrant was reasonable on the facts of that case. The good faith exception did not apply because there was no deficiency in the warrant itself. To read the Supreme Court’s analysis as an application of the good faith exception is to ignore its prerequisite determination that the warrant was valid.

The remaining decisions relied upon by the government show that it cannot fall back on the good faith exception when it unreasonably exceeds the scope of an unambiguous warrant. Here, the CASS was not ambiguous, nor was the NCIS’s execution of it reasonable. Accordingly, the good faith exception is not implicated.

Affirmed.

Dissenting opinion

Rushing, J., dissenting:

Under all the circumstances, it was objectively reasonable for Smith to believe that the search of Ray’s cell phone was lawful. Suppressing the evidence found on Ray’s phone is too “harsh [a] sanction” for Smith’s honest mistake. I would reverse the district court’s order suppressing the evidence.

United States v. Ray, Case No. 24-4024, June 3, 2025. 4th Cir. (Thacker), from EDVA at Richmond (Gibney, Jr.). Jacqueline Romy Bechara for Appellant. Michael E. Rayfield for Appellee. VLW 025-2-190. 44 pp.