        This opinion is subject to revision before publication


          UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                            Appellee
                                 v.
              Calvin E. PERKINS Jr., Sergeant
             United States Marine Corps, Appellant
                           No. 18-0365
                     Crim. App. No. 201700077
         Argued January 22, 2019—Decided April 23, 2019
       Military Judges: J. K. Carberry and M. D. Zimmerman
   For Appellant: Lieutenant Commander William L. Geraty,
   JAGC, USN (argued).
   For Appellee: Lieutenant Kurt W. Siegal, JAGC, USN (ar-
   gued); Colonel Mark K. Jamison, USMC, Lieutenant Kim-
   berly Rios, JAGC, USN, and Brian K. Keller, Esq. (on
   brief).
   Judge MAGGS delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN and
   SPARKS, joined. Judge OHLSON filed a separate dis-
   senting opinion.
                     _______________

   Judge MAGGS delivered the opinion of the Court.
    A general court-martial with officer and enlisted mem-
bers found Appellant guilty, contrary to his pleas, of one
specification of conspiracy to commit the offense of larceny
and one specification of violating a lawful general order in
violation of Articles 81 and 92, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 881, 892 (2012).1 The court-
martial sentenced Appellant to be reduced to the lowest en-

   1  The court-martial found Appellant not guilty of one specifica-
tion of conspiracy to commit larceny of military property, two spec-
ifications of making false official statements, one specification of
larceny of military property of a value of more than $500, two
specifications of larceny of military property, two specifications of
wrongfully endeavoring to impede an investigation, and one speci-
fication of adultery in violation of Articles 81, 107, 121, 134,
UCMJ, 10 U.S.C. §§ 881, 907, 921, 934 (2012).
              United States v. Perkins, No. 18-0365/MC
                        Opinion of the Court

listed grade and to be discharged from the United States
Marine Corps with a bad-conduct discharge. The convening
authority approved the adjudged findings and sentence and,
except for the punitive discharge, ordered the sentence exe-
cuted. The United States Navy-Marine Corps Court of Crim-
inal Appeals (NMCCA) affirmed. United States v.
Perkins, 78 M.J. 550, 567 (N-M. Ct. Crim. App. 2018).
Acting pursu-ant to Article 67(a)(2), UCMJ, 10 U.S.C. §
867(a)(2), the Judge Advocate General of the Navy
ordered the case to be sent to this Court for review,
requesting that we consider the following two issues:
         I. Whether this Court’s holding in United States v.
            Carter2 as applied by the Navy-Marine Corps
            Court of Appeals in this case, instead of the
            plain reading of MRE 311(c)3 this Court applied
            in United States v. Hoffmann,4 controls in ana-
            lyzing the applicability of the good faith excep-
            tion to the exclusionary rule.
         II. Whether the military judge erred in denying a
             defense motion to suppress evidence obtained
             from a search of Appellant’s home?
    For reasons that we explain below, we conclude that the
NMCCA properly followed our decision in United States v.
Carter, 54 M.J. 414 (C.A.A.F. 2001), when applying M.R.E.
311(c)(3).5 We also affirm the NMCCA’s decision that the
military judge did not abuse his discretion in denying a de-
fense motion to suppress evidence obtained from the search
of Appellant’s home.




   2   United States v. Carter, 54 M.J. 414 (C.A.A.F. 2001).
   3   Military Rule of Evidence (M.R.E.) 311(c).
   4   United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016).
   5  The version of M.R.E. 311 in the Supplement to Manual for
Courts-Martial, United States, Military Rules of Evidence (2012
ed.), applies to this case. The President made several minor
amendments to M.R.E. 311 in the Manual for Courts-Martial,
United States (2019 ed.) (MCM).



                                  2
            United States v. Perkins, No. 18-0365/MC
                      Opinion of the Court

                         I. Background

                 A. The Search Authorization
    On October 1, 2015, a civilian, Ms. MI, contacted the Na-
val Criminal Investigative Service (NCIS) at Marine Corps
Air Station (MCAS) Yuma in Yuma, Arizona. MI reported
that Appellant was threatening to release photographs and
videos that he had taken of her while she was having sexual
intercourse with him unless she met various demands. MI
informed the NCIS that in response to Appellant’s threats,
she had already bought Appellant a television and a gun
safe, she had paid for a year-long storage unit rental, and
she had given Appellant some of her furniture. MI acknowl-
edged that she had never seen Appellant take videos or pho-
tographs of her while they had sex. But she recalled that
Appellant had used his cell phone at least once while they
were engaged in sexual activity. MI also told the NCIS that
Appellant had electronic devices in his home capable of stor-
ing digital videos and photographs.
   On the same day, in response to MI’s allegations, Appel-
lant’s command drafted a Military Protective Order (MPO).6
The command then contacted Appellant, who was away on
leave, and ordered him to return to base to receive and sign
the MPO. The command expected Appellant to arrive at the
base that evening or the next morning.
    Special Agent Jessica Jurj of the NCIS was concerned
that Appellant might destroy evidence upon returning home.
She sought legal advice on how to proceed from the local tri-
al counsel (Captain Angel Alfaro), the remotely located sen-
ior trial counsel (Major Eric Catto), and the base command-
er’s staff judge advocate (Major Gregory Funk). They
advised Special Agent Jurj that she should request the base
commander, Colonel Ricardo Martinez, to authorize the
NCIS to search Appellant’s residence before he returned to
the base. Special Agent Jurj then called Colonel Martinez to
request a verbal command search and seizure authorization.
Her testimony about the call was as follows:



   6 Neither a copy of the MPO nor a description of its contents is
included in the record.



                                3
             United States v. Perkins, No. 18-0365/MC
                       Opinion of the Court

      Q. Can you walk us through that phone conversa-
         tion with as much detail [as you can] remember?
      A. . . . I called Colonel Martinez, after consulting
         with Captain Alfaro, at the time . . . the trial
         counsel here at MCAS Yuma, and explaining all
         the detail to him and Major Funk[,] who’s the
         Staff Judge Advocate for MCAS Yuma at the
         time. And I explained all the known facts to us,
         all the reports that [MI] had made to us during
         her interview, the MPO issuance, the return of
         Sergeant Perkins to base later that night, and
         the potential of him destroying electronic evi-
         dence, due [to] him knowing that there was an
         MPO and that there was a potential investiga-
         tion initiated as a result of that. I explained all
         those known facts at the time to Colonel Mar-
         tinez on the phone. I don’t recall the exact verbi-
         age I used; however, those were the parameters
         of what I explained to him.
      ....
      Q. What did Colonel Martinez say in response?
      A. Colonel Martinez wanted additional information.
         He wanted us to explain all the facts in detail,
         which I went [over] in detail with him as well as
         Major Funk. I explained to him that I had con-
         sulted Captain Funk and Captain Alfaro. I ex-
         plained the residence, where it was located, the
         impact it could have on the community on Ma-
         rine Corps Air Station Yuma. And after explain-
         ing everything, Colonel Martinez agreed to issue
         a verbal command authorized search and seizure
         under exigent circumstances and requested that
         we provide updates, very frequently, as to what
         we had encountered at the residence, upon con-
         ducting our search.
   Colonel Martinez’s recollection of the call was similar. In
a sworn statement, Colonel Martinez recalled:
         [Agent Jurj] informed me that a female civilian,
         Ms. [MI,] reported earlier that day that Sgt
         Perkins was extorting her by threatening to
         reveal personal nude videos and photographs if
         she did not purchase him goods. Agent Jurj
         informed me that the videos and pictures were
         likely contained inside of Sgt Perkins’ home, and
         due to an earlier conversation with [the



                                4
           United States v. Perkins, No. 18-0365/MC
                     Opinion of the Court

         Appellant’s Sergeant Major], she believed Sgt
         Perkins was returning to the home that very
         evening. I determined that there was probable
         cause for a search and granted [a Command
         Authorization for Search and Seizure] over the
         phone that evening authorizing NCIS Agents to
         search Sgt Perkins’ home . . . for all electronic
         devices and media storage containers capable of
         containing videos, photographs, and other
         electronic devices.
    NCIS agents immediately acted on Colonel Martinez’s
verbal search authorization. During an initial protective
sweep of Appellant’s home, NCIS agents entered Appellant’s
detached garage and saw a light anti-tank weapon tube.
They also observed other military gear in the garage. Special
Agent Jurj then stopped the search, called Colonel Martinez,
and requested and obtained an expanded search authoriza-
tion to search for stolen military property. That evening and
the following day, the NCIS discovered and seized ammuni-
tion and other military property from Appellant’s garage.
      B. Denial of the Motion to Suppress and Appeal
    Prior to trial, Appellant moved to suppress the evidence
obtained from the searches and all derivative evidence un-
der M.R.E. 311(a), which generally makes “[e]vidence ob-
tained as a result of an unlawful search or seizure made by a
person acting in a governmental capacity . . . inadmissible
against the accused.” Appellant argued that “the search au-
thorization was unconstitutionally vague, was lacking in
probable cause, and failed to meet the particularity re-
quirement of the Fourth Amendment.” The military judge
concluded that there was probable cause and denied the mo-
tion through an oral ruling on the record. The Government
used the seized evidence at trial against Appellant, and the
court-martial found him guilty of conspiracy to commit the
offense of larceny as described above.
   On appeal to the NMCCA, Appellant made several ar-
guments for concluding that the military judge had abused
his discretion in denying the motion to suppress the seized
evidence. Appellant asserted, for the first time, that “Colonel
Martinez, the Commanding Officer (CO) of the MCAS Yuma,
did not make an independent determination of probable



                               5
              United States v. Perkins, No. 18-0365/MC
                        Opinion of the Court

cause; instead he simply ratified the bare conclusions of
[Special Agent] Jurj.” Brief for Appellant at 8, United States
v. Perkins, 78 M.J. 550 (N-M. Ct. Crim. App. 2018) (No.
201700077). Appellant also argued that Colonel Martinez
“did not have a substantial basis for concluding that proba-
ble cause existed to search [Appellant’s] home and seize any
electronic devices found therein.” Id. at 12. Appellant fur-
ther contended that neither the good faith exception in
M.R.E. 311(c)(3) nor the inevitable discovery exception de-
scribed in United States v. Hoffmann, 75 M.J. at 125, ap-
plied. Brief for Appellant at 16−17, Perkins, 78 M.J. 550.
    The NMCCA agreed with Appellant that Colonel Mar-
tinez lacked probable cause to issue the search authoriza-
tion. Perkins, 78 M.J. at 557−58. The NMCCA reasoned that
Colonel Martinez had insufficient information to assess MI’s
veracity or to conclude that a search of Appellant’s home
might uncover evidence. Id. The court explained:
           Special Agent [Jurj] could not . . . identify a par-
           ticular device that was the proper subject of the
           search or a reason why such a device would be in
           the appellant’s house. MI had made a general-
           ized contention that the appellant had “other de-
           vices in his house, electronic devices capable of
           storing such media,” but this tells us almost
           nothing about what they might be or why in-
           criminating images might be on them. The most
           concrete nexus between the requested authoriza-
           tion and potential evidence is the possibility that
           the appellant removed the SD card from his
           phone and stored it in his house while he (and
           his cell phone) were out of state. Special Agent
           [Jurj], however, did not provide the CO with any
           reason to think that was at all probable.
Id. at 558.
   Despite determining that Colonel Martinez lacked prob-
able cause to issue the search authorization, the NMCCA
concluded that the evidence should not be suppressed be-
cause all three elements of the good faith exception in
M.R.E. 311(c)(3) were met.7 Id. at 562–63. The first element,



   7   M.R.E. 311(c)(3) provides:



                                    6
           United States v. Perkins, No. 18-0365/MC
                     Opinion of the Court

as stated in M.R.E. 311(c)(3)(A), is that “the search or sei-
zure resulted from an authorization . . . issued by an indi-
vidual competent to issue the authorization.” The NMCCA
concluded that Colonel Martinez was competent to authorize
the search of an on-base residence. 78 M.J. at 561. The se-
cond element, as stated in M.R.E. 311(c)(3)(B), is that “the
individual issuing the authorization or warrant had a sub-
stantial basis for determining the existence of probable
cause.” The NMCCA observed that, in Carter, this Court re-
jected a literal reading of this element, which would require
that the person issuing the authorization actually have a
substantial basis for determining the existence of probable
cause. 78 M.J. at 560 (citing Carter, 54 M.J. at 422). This
Court in Carter held instead that M.R.E. 311(c)(3)(B) re-
quires only that “the law enforcement official [have] an ob-
jectively reasonable belief that the [the person issuing the
authorization] had a ‘substantial basis’ for determining the
existence of probable cause.” 54 M.J. at 422. Following this
precedent, the NMCCA concluded that Special Agent Jurj
reasonably believed that Colonel Martinez had a substantial
basis for determining the existence of probable cause. Per-
kins, 78 M.J. at 561. The third requirement, under M.R.E.
311(c)(3)(C), is that “the officials seeking and executing the
authorization or warrant reasonably and with good faith re-
lied on the issuance of the authorization or warrant.” The

         (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 au-
         thorization to search, seize or apprehend issued
         by an individual competent to issue the authori-
         zation 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 au-
         thorization 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.



                               7
            United States v. Perkins, No. 18-0365/MC
                      Opinion of the Court

NMCCA concluded that Special Agent Jurj and other
NMCCA agents involved in the search reasonably and with
good faith relied on the issuance of the authorization. 78
M.J. at 561. The NMCCA decided that Special Agent Jurj’s
actions were reasonable because she articulated a basis for
the search that the appropriate lawyers had approved and
she did not disregard Appellant’s Fourth Amendment rights.
Id. The NMCCA did not address Appellant’s contention that
Colonel Martinez had failed to act in a neutral and detached
manner and also did not address the inevitable discovery
exception.
    Although the NMCCA relied on Carter in applying the
second element of the good faith exception in M.R.E.
311(c)(3)(C), the NMCCA recognized a discrepancy between
Carter and our subsequent decision in Hoffmann. Perkins,
78 M.J. at 558–60. In Hoffmann, this Court held that M.R.E.
311(c)(3)(B) was not satisfied simply because “the individual
issuing the authorization did not have a substantial basis for
determining the existence of probable cause.” 75 M.J. at 128.
The Court did not cite Carter or consider the possibility
M.R.E. 311(c)(3)(B) could be satisfied if the officials execut-
ing a search authorization believed that the person issuing
the authorization had a substantial basis for determining
the existence of probable cause. Id. The apparent conflict be-
tween Carter and Hoffmann led the Judge Advocate General
of the Navy to order review of this case.
                        II. Discussion

   Under M.R.E. 311(a), the seized evidence should have
been excluded if there was no probable cause for the search
authorization unless an exception applies. Although the
Government continues to argue that Colonel Martinez had
probable cause, the Government agrees that, if we decide
that the good faith exception in M.R.E. 311(c)(3) applies,
then we do not have to revisit the NMCCA’s determination
that there was no probable cause for the search
authorization.8 We will therefore take this approach. We will

   8  Although the Government did not address the good faith ex-
ception in responding to Appellant’s motion before the military
judge, the Government was permitted to raise the good faith ex-
ception in responding to Appellant’s appeals to the NMCCA and to


                               8
            United States v. Perkins, No. 18-0365/MC
                      Opinion of the Court

assume for this appeal that there was no probable cause and
will focus on the good faith exception. See United States v.
Lopez, 35 M.J. 35, 39 (C.M.A. 1992) (explaining that a court
need not determine if there was sufficient probable cause if
it concludes that the good faith exception to the exclusionary
rule applies).
    In their arguments about the good faith exception in
M.R.E. 311(c)(3), the parties do not dispute the NMCCA’s
conclusion that the first requirement, found in M.R.E.
311(c)(3)(A), was met because Colonel Martinez was compe-
tent to issue a search authorization of Appellant’s on-base
residence.9 They disagree, however, about whether the se-
cond and third requirements of the good faith exception in
M.R.E. 311(c)(3)(B) and (C) were satisfied. Appellant also
argues that the good faith exception cannot make the evi-
dence admissible because Colonel Martinez did not act in a
neutral and detached manner. We address each of these
points in turn.



this Court. A familiar principle of appellate practice is that “[a]n
appellee or respondent may defend the judgment below on a
ground not earlier aired.” Greenlaw v. United States, 554 U.S. 237,
250 n.5 (2008); see Schweiker v. Hogan, 457 U.S. 569, 584−85 &
n.24 (1982) (“Although appellees did not advance this argument in
the District Court, they are not precluded from asserting it as a
basis on which to affirm that court’s judgment” because of the
“well accepted” rule that “an appellee may rely upon any matter
appearing in the record in support of the judgment below.”). In
addition, because the military judge did not rule on whether the
government agents in this case acted in good faith, our law of the
case doctrine does not preclude appellate consideration of the
Government’s argument. United States v. Mack, 65 M.J. 108, 112
(C.A.A.F. 2007) (law of the case doctrine did not apply to an issue
upon which the military judge did not rule).
   9  M.R.E. 311(c)(3)(A) requires a search authorization to be is-
sued by “an individual competent to issue the authorization under
Mil. R. Evid. 315(d).” M.R.E. 315(d) and (d)(1) make a commander
competent to issue a search authorization provided that the com-
mander is “an impartial individual” and “has control over the
place where the property or person to be searched is situated or
found.” In his brief, Appellant does not address M.R.E.
311(c)(3)(A) and does not contest that Colonel Martinez was com-
petent under M.R.E. 315(d).



                                 9
             United States v. Perkins, No. 18-0365/MC
                       Opinion of the Court

                      A. M.R.E. 311(c)(3)(B)
    Under M.R.E. 311(c)(3)(B), as noted above, the second
requirement for the good faith exception is that “the indi-
vidual issuing the authorization or warrant had a substan-
tial basis for determining the existence of probable cause.”
In Carter, we recognized a difficulty in construing the lan-
guage of this provision.10 54 M.J. at 421−22. The trouble is
that under United States Supreme Court precedent, when a
defendant seeks to exclude evidence on grounds that proba-
ble cause does not exist, “the duty of a reviewing court is
simply to ensure that the magistrate had a ‘substantial basis
for . . . [concluding]’ that probable cause existed.” Illinois v.
Gates, 462 U.S. 213, 238 (1983) (alterations in original) (ci-
tation omitted). This test for reviewing whether there was
probable cause is nearly identical in language to the test
stated in M.R.E. 311(c)(3)(B) for the second requirement of
the good faith exception. Accordingly, if M.R.E. 311(c)(3)(B)
were read literally, in any situation in which a court con-
cluded that probable cause did not exist, the court would al-
so have to conclude that the requirement of M.R.E.
311(c)(3)(B) was not met. Under such an interpretation, as
we explained in Carter, “the good-faith exception would not
be an exception at all, and the language would serve no pur-
pose.” 54 M.J. at 421.
    In Carter, to prevent M.R.E. 311(c)(3)(B) from becoming
a nullity, we looked to the purpose of the provision. Id. at
421−22. We decided that the President in promulgating the
provision was seeking to codify the good faith exception as
stated in United States v. Leon, 468 U.S. 897 (1984), and
Massachusetts v. Sheppard 468 U.S. 981 (1984). 54 M.J. at
420. Those cases indicated that the evidence could be admit-
ted if the magistrate authorizing the search had a substan-
tial basis, in “the eyes of a reasonable law enforcement offi-
cial executing the search authorization,” for concluding that
probable cause existed. Id. at 422. Accordingly, we held that
M.R.E. 311(c)(3)(B) is satisfied “if the law enforcement offi-

   10  Under the version of the Military Rules of Evidence in force
at the time of the trial in Carter, the good faith exception was codi-
fied in M.R.E. 311(b)(3), MCM (1995 ed.). The same language now
appears in M.R.E. 311(c)(3).



                                 10
             United States v. Perkins, No. 18-0365/MC
                       Opinion of the Court

cial had an objectively reasonable belief that the magistrate
had a ‘substantial basis’ for determining the existence of
probable cause.” Id.
   In this case, we agree with the NMCCA that M.R.E.
311(c)(3)(B) is satisfied under the test in Carter.11 The
NMCCA properly identified factors indicating that Special
Agent Jurj had an objectively reasonable belief that Colonel
Martinez had a substantial basis for determining the
existence of probable cause. Most significantly, Special
Agent Jurj received and apparently relied on the advice of
appropriate government lawyers: the local trial counsel, the
regional trial counsel, and the staff judge advocate. When
Colonel Martinez issued the authorization, Special Agent
Jurj could reasonably have concluded that Colonel Martinez
was confirming what these three lawyers had already told
her.
    Appellant, however, requests this Court “reexamine
Carter and require the application of the plain language of
[M.R.E. 311(c)(3)(B)].” Appellant asserts that in Hoffmann,
this Court quoted and applied M.R.E. 311(c)(3)(B) literally.
75 M.J. at 128. Appellant contends that if the Court were to
follow the same approach in this case, the good faith excep-
tion could not apply because Colonel Martinez did not have a
substantial basis for determining that there was probable
cause to authorize the search.
    Appellant’s argument requires us to review our decision
in Hoffmann. In that case, the accused’s commander issued
an authorization to search the accused’s computer and other
electronic media for child pornography. Id. at 123. Although
there was information that the accused had attempted to
entice children on the street to commit sex acts, there was

   11   Because the military judge determined that there was
probable cause for the search, the military judge did not make
findings of fact or conclusions of law regarding to M.R.E.
311(c)(3)(B). These matters of findings and conclusions therefore
fell to the NMCCA. Appellant does not challenge the facts as
determined by the NMCCA. We review the NMCCA’s conclusions
of law de novo. See United States v. Catrett, 55 M.J. 400, 404
(C.A.A.F. 2001) (explaining the standard of review when a Court
of Criminal Appeals is the finder of fact relevant to an exception to
an exclusionary rule).



                                 11
           United States v. Perkins, No. 18-0365/MC
                     Opinion of the Court

no information that linked the accused’s acts to his posses-
sion of child pornography. Id. at 127. Accordingly, we deter-
mined that the commander did not have probable cause to
issue the search authorization. Id. We then cursorily decided
that the good faith exception did not prevent suppression of
the seized evidence, saying:
         The military good-faith exception need not long
         detain us in this case. As noted above . . . , the
         individual issuing the authorization did not have
         a substantial basis for determining the existence
         of probable cause, a requirement for application
         of the good-faith exception.
Id. at 128. The opinion did not address the possibility, rec-
ognized in Carter, that the good faith exception could be sat-
isfied if the agents executing the search had an objectively
reasonable belief that the magistrate had a substantial basis
for determining the existence of probable cause, even if the
magistrate did not have such a basis.
    Overruling precedent by implication is disfavored. See
United States v. Davis, 76 M.J. 224, 228 n.2 (C.A.A.F. 2017).
We accordingly reject the suggestion that this Court implic-
itly overruled Carter in Hoffmann and adopted a literal in-
terpretation of M.R.E. 311(c)(3)(B). The most sensible un-
derstanding of Hoffmann is that the Court simply did not
consider the reasonable beliefs of the agents executing the
search. In their briefs in Hoffmann, the parties neither cited
Carter nor addressed the law enforcement agents’ beliefs.
The Court’s opinion in Hoffmann likewise did not cite Carter
or consider Carter’s interpretation of M.R.E. 311(c)(3)(B).
The Hoffmann opinion also did not recognize or address the
interpretive problem, explained above, that reading M.R.E.
311(c)(3)(B) literally would render the provision a nullity
and eliminate the good faith exception as a practical matter.
    To be sure, when precedents conflict, we typically follow
the more recent decision. See United States v. Hardy, 77
M.J. 438, 441 n.5 (C.A.A.F. 2018). But in this case, we see
strong reasons to adhere to Carter. Carter contains a thor-
ough consideration of a complicated issue, giving effect to all
parts of M.R.E. 311. Hoffmann does not. In addition, Carter
is a longstanding precedent, while Hoffmann is not. We have
recognized that “[w]e will not overturn ‘precedent . . . [that]


                               12
            United States v. Perkins, No. 18-0365/MC
                      Opinion of the Court

has been treated as authoritative for a long time . . . unless
the most cogent reasons and inescapable logic require it.’ ”
United States v. Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018)
(alterations in original) (citation omitted). Accordingly, we
disapprove the decision in Hoffmann to the extent that it
differs from Carter.
                     B. M.R.E. 311(c)(3)(C)
    The third requirement of the good faith exception, found
in M.R.E. 311(c)(3)(C), is that “the officials seeking and exe-
cuting the authorization or warrant reasonably and with
good faith relied on the issuance of the authorization or war-
rant.” M.R.E. 311(c)(3)(C) further provides that “[g]ood faith
is to be determined using an objective standard.” We agree
with the NMCCA that this element was satisfied.12
    Appellant argues that Special Agent Jurj did not act in
good faith because she was unreasonably mistaken about
the law. He points to Special Agent Jurj’s testimony, in
which she explained: “Due to Sergeant Perkins returning
from leave and regaining access to his residence, we re-
quested a command authorized search and seizure under
exigent circum[stances] because of the possibility of him de-
stroying evidence.” We believe that Special Agent Jurj’s ref-
erence to urgency was more likely made to justify the lack of
a written authorization than to suggest application of a di-
minished probable cause standard. But see M.R.E. 315(a)(1)
(exigent circumstances are not necessary for granting an
oral, as opposed to written, authorization). However, Appel-
lant is correct that, to the extent, if any, Special Agent Jurj
relied on the urgent need to conduct the search to establish
probable cause, her rationale was defective. Regardless, a
flaw in legal reasoning is not a determinative factor in decid-
ing whether a law enforcement agent acted in good faith.
    Instead, we held in Carter, law enforcement agents do
not act in good faith if they “know that the magistrate mere-
ly ‘rubber stamped’ their request, or when the warrant is fa-
cially defective.” 54 M.J. at 421. In this case, even if Colonel


   12 As with the previous issue, Appellant does not challenge the
facts determined by the NMCCA, and we have reviewed the
NMCCA’s conclusion of law de novo.



                               13
            United States v. Perkins, No. 18-0365/MC
                      Opinion of the Court

Martinez had “rubber-stamped” the application for the
search authorization—a contention that we address below—
there is no evidence to support a finding of fact that Special
Agent Jurj “knew” this. On the contrary, her testimony
shows the opposite. After Special Agent Jurj made her
presentation to Colonel Martinez, he did not immediately
authorize the search. Instead, Special Agent Jurj testified,
“Colonel Martinez wanted additional information. He want-
ed us to explain all the facts in detail, which I went [over] in
detail with him as well as Major Funk.” Colonel Martinez’s
request for “all the facts in detail” before making a decision
would have indicated to Special Agent Jurj that Colonel
Martinez was not rubber-stamping the application. Fur-
thermore, the search authorization was not facially defective
because it identified the place to search (Appellant’s home)
and described in detail what to look for (“all electronic devic-
es and media storage containers capable of containing vide-
os, photographs, and other electronic evidence”). Although
Special Agent Jurj may have misunderstood the law regard-
ing what constitutes probable cause, she made the mistake
by relying on the opinion of multiple attorneys. We also note
that upon entering Appellant’s garage and viewing military
gear in the garage—evidence not explicitly covered by the
initial search authorization—Special Agent Jurj halted the
search and immediately requested an expanded search au-
thorization from Colonel Martinez. We therefore conclude
that all the requirements of the good faith exception in
M.R.E. 311(c)(3) were satisfied.
                  C. Lack of Judicial Review
    Citing Leon, rather than the specific language of M.R.E.
311, Appellant also argues that the evidence must be
suppressed because Colonel Martinez “ ‘wholly abandoned
his judicial role’ ” and “simply rubber-stamped Special Agent
[Jurj’s] bald assertion that probable cause existed.” The
Supreme Court in Leon held that it will deny deference to a
magistrate’s determination of probable cause if the
magistrate acted as a rubber stamp for the police, and
further held that the good faith exception does “not apply in
cases where the issuing magistrate wholly abandoned his
judicial role” because “in such circumstances, no reasonably
well trained officer should rely on the warrant.” 468 U.S. at


                              14
            United States v. Perkins, No. 18-0365/MC
                      Opinion of the Court

914, 923. We have followed this principle in several cases.
See United States v. Leedy, 65 M.J. 208, 217 (C.A.A.F. 2007);
see also United States v. Cravens, 56 M.J. 370, 373, 376
(C.A.A.F. 2002).
    In this case, however, we decline to consider Appellant’s
argument because Appellant has waived this argument. Un-
der M.R.E. 311(d)(2)(A), arguments for suppression of evi-
dence under M.R.E. 311 that are not made at trial are
waived. Applying this rule in United States v. Stringer, 37
M.J. 120, 125 (C.M.A. 1993), and United States v. Robinson,
77 M.J. 303, 307 & n.6 (C.A.A.F. 2018) (internal quotation
marks omitted) (citation omitted), we clarified that the ac-
cused must make a “particularized objection” to the admis-
sion of evidence, otherwise the issue is waived and may not
be raised on appeal. As Judge Wiss explained in a separate
opinion in Stringer, a particularized objection is necessary so
that the government has the opportunity to present relevant
evidence that might be reviewed on appeal. 37 M.J. at 132
(Wiss, J., concurring in the result). Here, Appellant did not
raise his rubber-stamping argument at trial when he argued
that there was no probable cause for the search authoriza-
tion. Instead, as explained above, Appellant argued only
that “the search authorization was unconstitutionally vague,
was lacking in probable cause, and failed to meet the partic-
ularity requirement of the Fourth Amendment.” Appellant
argued that Colonel Martinez had failed to act in a neutral
and detached manner for the first time on appeal to
NMCCA. Like the NMCCA, we will not address this argu-
ment on the merits.13

   13  The dissent asserts that Appellant did not waive the “rub-
ber-stamping” argument in this case because he “was not required
to invoke an ‘exception to this exception’ at trial” given that “the
good faith exception was not raised by the Government or the mil-
itary judge at the trial court level.” United States v. Perkins, __
M.J. __, __ (2) (Ohlson, J, dissenting). This assertion assumes that
rubber-stamping is merely an exception to the good faith excep-
tion. This assumption is incorrect. A fundamental principle of the
Fourth Amendment is that “[a] magistrate failing to ‘manifest
that neutrality and detachment demanded of a judicial officer
when presented with a warrant application’ and who acts instead
as ‘an adjunct law enforcement officer’ cannot provide valid au-
thorization for an otherwise unconstitutional search.” Leon, 468


                                15
            United States v. Perkins, No. 18-0365/MC
                      Opinion of the Court

                         III. Judgment

   The judgment of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.




U.S. at 914 (quoting Lo-Ji Sales, Inc. v. New York, 442 U.S. 319,
326–27 (1979)). Accordingly, the accused can argue in the first in-
stance that a search authorization was invalid because the com-
mander rubber-stamped the government’s application; the accused
need not first show that the search authorization was invalid for
some other reason and then wait for the government to argue that
its agents acted in good faith before raising a rubber-stamping ob-
jection. See, e.g., United States v. Clayton, 68 M.J. 419, 425−26
(C.A.A.F. 2010) (upholding the military judge’s determination that
a warrant was valid because, among other reasons, the magistrate
did not abandon his judicial role and act as a rubber stamp for the
government).



                                16
            United States v. Perkins, No. 18-0365/MC


   Judge OHLSON, dissenting.
   The facts known by the commanding officer at the time
he approved the search authorization in this case were so
lacking in any indicia of probable cause that this Court is
compelled under the dictates of the Supreme Court’s
decision in United States v. Leon, 468 U.S. 897 (1984), to
hold in favor of Appellant. Specifically, this Court should
conclude that the commanding officer served simply as a
“rubber stamp” in the search authorization process because
his actions constituted a mere ratification of the facially
deficient, bare bone assertions that were presented to him.
Id. at 914 (internal quotation marks omitted) (citation
omitted). We should hold, therefore, that the military judge
in the instant case abused his discretion in denying the
defense motion to suppress evidence seized from Appellant’s
home. Because the majority has ruled to the contrary, I
respectfully dissent.1
                      Assertion of Waiver

    The majority concludes that Appellant waived the
argument that the commanding officer improperly “rubber-
stamped” the search authorization. Specifically, the majority
takes the position that because an accused may object at
trial to the “rubber-stamping” of a search authorization
request, then an accused must object at trial to this
impermissible conduct or this argument will be deemed
waived on appeal. Under the specific facts of this case, I am
unpersuaded by this reasoning.


   1 I note at the outset of this separate opinion that I reluctantly
   concur with the majority’s resolution of Issue I regarding the
   question of “[w]hether this Court’s holding in United States v.
   Carter [or] in United States v. Hoffmann controls in analyzing
   the applicability of the good faith exception to the exclusionary
   rule.” The principal of stare decisis, as recently articulated in
   United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018), pre-
   vails in this matter, and consistent with our holding in United
   States v. Carter, 54 M.J. 414 (C.A.A.F. 2001), we must act as if
   the plain language of Military Rule of Evidence (M.R.E.)
   311(c)(3)(B) does not really say what it in fact clearly says.
   Therefore, the majority’s harmonization of Hoffmann with
   Carter is appropriate.
            United States v. Perkins, No. 18-0365/MC
                  Judge OHLSON, dissenting

   As is evident from the record, during motions practice at
the court-martial the Government argued that there was
probable cause to search Appellant’s home. Appellant
argued that there was no probable cause. The military judge
then ruled in the Government’s favor by holding that there
was indeed probable cause. Thus, neither the Government
nor the military judge raised the argument that (a) there
was no probable cause to search Appellant’s home but (b) the
good faith exception applied, thereby rendering the fruits of
that search admissible at trial. Rather, this line of reasoning
arose for the first time at the United States Navy-Marine
Corps Court of Criminal Appeals (CCA).
    In my view, because the good faith exception was not
raised by the Government or the military judge at the trial
court level, Appellant was not required to invoke an
“exception to this exception” at trial in order to preserve the
issue on appeal. Under the majority’s approach, trial defense
counsel now need to be not only learned, alert, and reactive,
they also must be clairvoyant. That is, during trial they
must be able to foresee—and then object to—legal issues
that are neither raised nor ripe until the case wends its way
to a court of criminal appeals. I do not subscribe to such an
approach.2



   2 The majority’s disparate treatment of the prosecution and
   the defense is noteworthy. As is permissible, for the first time
   on appeal to the CCA the Government argued that the good
   faith exception applies to this case. Brief for Appellee at 10,
   United States v. Perkins, 78 M.J. 550 (N-M. Ct. Crim. App.
   2018) (No. 201700077). The majority now endorses and adopts
   this approach. Similarly, for the first time on appeal to the
   CCA, Appellant argued that the good faith exception does not
   apply to this case because the commanding officer rubber-
   stamped the search authorization request. Brief for Appellant
   at 16, Perkins, 78 M.J. 550 (N-M. Ct. Crim. App. 2018) (No.
   201700077). Not only does the majority reject this argument,
   however, it actually prevents Appellant from even making this
   argument, asserting that it was waived because Appellant did
   not raise it at trial. Thus, even though the Government can
   raise the good faith exception for the first time on appeal, un-
   der the majority’s approach Appellant is foreclosed from rais-
   ing for the first time on appeal one of the four explicit limita-




                                2
            United States v. Perkins, No. 18-0365/MC
                  Judge OHLSON, dissenting

           Overview of the Good Faith Exception

    Turning to the issue at the heart of this case, in Leon, the
Supreme Court held that there was a good faith exception to
the exclusionary rule under the Fourth Amendment of the
Constitution. 468 U.S. at 905, 912. Specifically, the Court
held that the use of evidence obtained by law enforcement
officers acting in reasonable reliance on a search warrant
issued by a neutral and detached magistrate should not be
barred at trial simply because that warrant was ultimately
found to be invalid. Id. at 918. The President then
promulgated this good faith exception in the M.R.E. See
M.R.E. 311(c)(3).
    Importantly, however, in Leon the Supreme Court
specifically noted that in the course of applying the good
faith exception to particular cases, the great deference that
should be given to a magistrate’s probable cause
determination “is not boundless.” Leon, 468 U.S. at 914
(emphasis added). In fact, the Supreme Court spelled out
certain scenarios where the good faith exception is not
applicable despite the issuance of a warrant. One such
instance that is relevant to the instant case is when the
official authorizing the search fails to act in a neutral and
detached manner and instead “serve[s] merely as a rubber
stamp” for law enforcement officers. Id. (internal quotation
marks omitted) (quoting Aguilar v. Texas, 378 U.S. 108, 111
(1964)). This principle was underscored by this Court in
Carter where we held that the good faith exception does not
apply “[w]here the magistrate ‘wholly abandoned his judicial
role’ or was a mere rubber stamp for the police.” 54 M.J. at
419 (emphasis added) (quoting Leon, 468 U.S. at 923). The
good faith exception does not apply in this circumstance
because “no reasonably well trained officer should rely on
the warrant.” Leon, 468 U.S. 923.
   An analysis of relevant case law demonstrates that there
are two dimensions to the issue of whether a magistrate
merely “rubber-stamped” a search warrant; one is
procedural and one is substantive. Procedural rubber-


   tions to the good faith exception that the Supreme Court spe-
   cifically listed in Leon. In my mind, this is a curious result.




                                3
           United States v. Perkins, No. 18-0365/MC
                 Judge OHLSON, dissenting

stamping occurs, for example, when: (a) the magistrate fails
to engage in the necessary process of reviewing the
supporting affidavit, see 1 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 1.3(f), at 96
(5th ed. 2012) (“the magistrate gave the affidavit such a
quick scan that meaningful judicial review of the allegations
therein simply could not have occurred”); or (b) “the
magistrate functionally occupied a different, non-neutral
role while making the probable cause determination.”
United States v. Barnes, 895 F.3d 1194, 1202 (9th Cir. 2018).
As an example of the latter, in Lo-Ji Sales, Inc. v. New York,
the magistrate accompanied police and prosecutors when
they executed the search warrant he had just authorized,
thereby becoming an “adjunct law enforcement officer.” 442
U.S. 319, 327 (1979).
    Substantive rubber-stamping, on the other hand, arises
when it can be said that the magistrate necessarily must
have acted as a rubber stamp for law enforcement because it
was facially and objectively clear from the paucity or the
quality of the information contained in the affidavit that
there was no probable cause. This point was perhaps best
articulated by the United States Court of Appeals for the
Fourth Circuit when it held as follows: “We find that the
good faith exception to the exclusionary rule should not
apply in this case due to the ‘bare bones’ nature of the
affidavit, and because the state magistrate could not have
acted as other than a ‘rubber stamp’ in approving such an
affidavit.” United States v. Wilhelm, 80 F.3d 116, 121 (4th
Cir. 1996).
                            Facts

    In determining whether substantive rubber-stamping
improperly occurred in the instant case, we need merely
review the salient facts provided by the CCA in its laudably
insightful and comprehensive majority opinion. The points
cited below, which are adopted verbatim from the CCA
opinion except as otherwise noted, are accompanied by
parenthetical commentaries as warranted. See United States
v. Perkins, 78 M.J. 550, 554–58 (N-M. Ct. Crim. App. 2018).


      “[There is only] a limited factual record. As this was a




                              4
           United States v. Perkins, No. 18-0365/MC
                 Judge OHLSON, dissenting

      telephonic request for a search authorization, Special
      Agent JJ did not create an affidavit in support of her
      request to the CO.”3 Id. at 556.

     “[T]he record does not include any evidence address-
      ing MI’s4 veracity or provide any reason for the CO to
      have found MI’s account credible.” Id. at 557.

     “MI’s account to Special Agent JJ was, so far as we
      can tell, unsupported by any corroborating evidence.”
      Id.

     “MI denied ever seeing any [illicit] pictures or video
      [of herself] and did not specifically claim to have seen
      the appellant take any.” Id. at 554.

     “[At the time that Special Agent JJ sought the search
      authorization of Appellant’s home, t]here was no rea-
      son to believe the appellant’s cell phone was any-
      where except with the appellant, who was out of the
      state.” Id. at 557.

     “There is no evidence that MI claimed that these al-
      leged images were created in the appellant’s home or
      with a device likely to be found in the appellant’s
      home.” Id.

     “No one identified any particular device in the appel-
      lant’s home that would have been a likely place for
      the appellant to have stored any such videos or imag-
      es.” Id.

     “MI did not say where she thought the recordings
      might have happened, nor did she suggest that the
      appellant kept any cameras in his home that could
      have been used to make these recordings.” Id. at 554.

     “Since the appellant’s squadron had directed the ap-

3   “CO” refers to “commanding officer.”
4   MI was the complainant in this case.




                               5
        United States v. Perkins, No. 18-0365/MC
              Judge OHLSON, dissenting

    pellant [who was on leave] to come back to [the base]
    that night, Special Agent JJ decided to ask the base
    CO for ‘a command authorized search and seizure
    under exigent circum[stances] because of the possibil-
    ity of [Appellant] destroying evidence.’ ” Id.
    (This was a pretty nifty trick on the Government’s
    part. The Government created the purported exigency
    by calling Appellant back from leave, then the Gov-
    ernment cited Appellant’s imminent arrival as an ex-
    igent circumstance for seeking a search authorization
    on an expedited basis. Moreover, it must be noted
    that exigency is an exception to the warrant require-
    ment—it is not a basis for a finding of probable cause
    to search. Missouri v. McNeely, 569 U.S. 141, 148–49
    (2013). And finally, any exigent circumstances actual-
    ly present in the instant case did not make it any
    more likely that the evidence—if it existed—could be
    found in Appellant’s home.)

   “[Special Agent JJ] called the base CO. She told him
    ‘all [the] known facts at the time[.]’ When the CO re-
    sponded by asking Special Agent JJ to ‘explain all the
    facts in detail,’ she told him that she had consulted
    the staff judge advocate and the trial counsel, and
    ‘explained the residence, where it was located, the
    impact it could have on the community on Marine
    Corps Air Station Yuma.’ ” 78 M.J. at 554–55 (altera-
    tions in original).
    (Precisely nothing in this response by Special Agent
    JJ to the commanding officer’s inquiry increased the
    indicia of probable cause in this case. But this re-
    sponse apparently did have the desired effect of
    steamrolling the commanding officer into granting
    the search authorization by blatantly appealing to his
    role as a commander rather than to his responsibili-
    ties as a neutral and detached official who needed to
    decide whether there was probable cause to conduct a
    search of Appellant’s home. In explaining why it was
    appropriate to limit the scope of the exclusionary rule
    through the invocation of the good faith exception, the
    Supreme Court in Leon specifically cited the fact that




                           6
        United States v. Perkins, No. 18-0365/MC
              Judge OHLSON, dissenting

    neutral and detached officials “have no stake in the
    outcome of particular criminal prosecutions.” 468 U.S.
    at 917. But in the instant case, that patently was not
    so. Special Agent JJ emphasized that the safety and
    security of the commanding officer’s Marines and
    their family members were dependent upon the com-
    manding officer’s approval of the search authoriza-
    tion. This type of scenario presumably was on the
    minds of the drafters of M.R.E. 313 when they wrote:
    “[C]ommanders cannot be equated constitutionally to
    magistrates. As a result, commanders’ authorizations
    may be closely scrutinized for evidence of neutrality in
    deciding whether [the good faith exception] will ap-
    ply.” Manual for Courts-Martial, United States, Anal-
    ysis of the Military Rules of Evidence app. 22 at A22-
    20 (2016 ed.) (emphasis added).)

   “Special Agent JJ testified [at the suppression hear-
    ing] that, based on this information, the CO ‘agreed to
    issue a verbal command authorized search and sei-
    zure under exigent circumstances . . . .’ The authori-
    zation covered the entire residence.” 78 M.J. at 555
    (alterations in original).

   “Because Special Agent JJ thought that the evidence
    she sought could have been stored on a cell phone’s
    memory, or ‘SD’ card, and that the SD card might
    have been removed from the cell phone, she under-
    stood the authorization to extend to ‘anything that
    was small enough to contain . . . a very, very small
    media storage device . . . it can be something as small
    as a nail.’ ” Id. (alterations in original).
    (The problems with Special Agent JJ’s approach and
    reasoning are manifold. First, there was no evidence
    that Appellant’s specific cell phone had an SD card.
    Second, there was no evidence that even if his cell
    phone did have an SD card that Appellant transferred
    any illicit images of MI to that SD card. Third, even if
    there were illicit images on an SD card, there was no
    evidence that Appellant had removed that SD card
    and stored it someplace other than in his cell phone.




                           7
        United States v. Perkins, No. 18-0365/MC
              Judge OHLSON, dissenting

    United States v. Nieto, 76 M.J. 101, 107 (C.A.A.F.
    2017) (“[The] cell phone, by itself, had the ability to
    serve both as the instrumentality of the crime and as
    a storage device for the fruit of that crime.”). And
    fourth, even if all of Special Agent JJ’s imaginings
    were true, there was no evidence that the storage
    place was Appellant’s home.)

   “According to Special Agent JJ, MI said that the ap-
    pellant ‘possibly was storing electronic media contain-
    ing all these videos and footage of them having sex,’
    and [MI] ‘did [al]lude to the potential of him using
    other devices . . . in his house, electronic devices ca-
    pable of storing such media.’ ” 78 M.J. at 554 (altera-
    tions in original).
    (The wording of this testimony by Special Agent JJ
    stands in stark contrast to the universally accepted
    principle that probable cause must be based on a “fair
    probability” and not on a “mere possibility.” United
    States v. Rogers, 67 M.J. 162, 165 (C.A.A.F. 2009)
    (probable cause exists when a “common sense judg-
    ment would lead to the conclusion that there is a fair
    probability that evidence of a crime will be found at
    the identified location”).)

   “Special Agent JJ could not even identify a particular
    device that was the proper subject of the search or a
    reason why such a device would be in the appellant’s
    house.” 78 M.J. at 558.
    (It is evident from the last series of facts that the
    search authorization in this case runs directly afoul of
    our holding in Nieto where we held that there must
    be a demonstrated “particularized nexus” between the
    thing to be seized and the place to be searched.
    76 M.J. at 103. Here the only thing linking the
    hypothetical illicit images of MI to Appellant’s home
    was conjecture stacked upon innuendo founded on
    speculation.)

   “At the hearing on the motion, the government also
    provided an affidavit signed by the base CO explain-




                           8
         United States v. Perkins, No. 18-0365/MC
               Judge OHLSON, dissenting

    ing his probable cause determination. The relevant
    portion of the affidavit is short:
           [JJ] informed me that a female civilian,
           [MI], reported earlier that day that Sgt
           Perkins    was    extorting    her    by
           threatening to reveal personal nude
           videos and photographs if she did not
           purchase him goods. Agent [JJ]
           informed me that the videos and
           pictures were likely contained inside of
           Sgt Perkins’ home, and due to an earlier
           conversation with [the appellant’s
           sergeant major], she believed Sgt
           Perkins was returning to the home that
           very evening. I determined that there
           was probable cause for a search.”

    78 M.J. at 555 (alterations in the original).

    (The commanding officer’s affidavit, prepared for the
    purpose of supporting his probable cause determina-
    tion at the motion hearing, is remarkably conclusory
    and devoid of any analytical reasoning. Instead, it
    contains nothing more than a mere recital of the alle-
    gation against Appellant and the fact that Special
    Agent JJ told him that she thought it likely that
    NCIS would find the alleged nude images of MI in
    Appellant’s home. And yet, this grossly deficient affi-
    davit was apparently the best the Government could
    do in explaining and supporting the commanding of-
    ficer’s decision to grant the search authorization in
    this case.)
   “The government presented no other evidence sup-
    porting the CO’s probable cause determination.” Id.

   “The search of the appellant’s home did not reveal
    any nude photos or videos of MI. It did, however, re-
    sult in NCIS’s discovery of government property in
    the appellant’s garage.” Id.




                            9
            United States v. Perkins, No. 18-0365/MC
                  Judge OHLSON, dissenting

                            Analysis

    As noted above, consistent with this Court’s decision in
Carter, 54 M.J. at 419, where we said that the good faith
exception does not apply where the commanding officer “was
a mere rubber stamp for the police,” this Court should hold
that commanding officers can be said to have necessarily
acted as a rubber stamp in those cases where, based on the
paucity or quality of the facts presented to them, it was
facially, clearly, and objectively unreasonable for the
commander to conclude that there was probable cause to
authorize the search of a servicemember’s home.5
    In the instant case, the facts presented in support of the
search authorization were bare bones; those facts were
predicated on uncorroborated assertions of a single
individual of unknown credibility; the facts failed to
articulate any particularized nexus linking the item to be
seized with the place to be searched; the Government
improperly invoked exigent circumstances as a basis for the
search authorization; the commander abdicated his role as a
neutral and detached official upon the Government’s appeal
to his duties and responsibilities as a commanding officer;
there is nothing in the record indicating the degree to which
the commanding officer actually substantively analyzed the
facially deficient information presented to him at the time of
the search authorization request; and at a hearing on a
suppression motion, the commanding officer was notably
unable to articulate in an affidavit how the facts of the case
caused him to conclude that probable cause existed at the
time he granted the search authorization. Therefore, it was
facially, clearly, and objectively unreasonable for the


   5   The right to privacy in one’s home is a most im-
       portant interest protected by the Fourth Amend-
       ment and a continuing theme in constitutional ju-
       risprudence. See, e.g., Payton v. New York, 445 U.S.
       573, 585 (1980) (“ ‘physical entry of the home is the
       chief evil against which the wording of the Fourth
       Amendment is directed’ ” (quoting United States v.
       United States Dist. Court, 407 U.S. 297, 313
       (1972))).
   Wilhelm, 80 F.3d at 120–21.




                                 10
           United States v. Perkins, No. 18-0365/MC
                 Judge OHLSON, dissenting

commander to authorize the search. Under these
circumstances, no reasonable law enforcement officer would
rely on the commander’s search authorization. See Leon, 468
U.S. at 923. Further, because the military judge’s denial of
the motion to suppress was influenced by an erroneous view
of the law, he abused his discretion by failing to suppress
the evidence seized from Appellant’s home. Accordingly,
Appellant’s conviction for conspiracy to commit larceny
should be reversed.
                         Conclusion

    Today’s majority opinion has wide-ranging and serious
implications. In the instant case the commander’s probable
cause determination was facially, clearly, and objectively
unreasonable, and yet the majority has voted to affirm
Appellant’s conviction, seemingly heedless of the Supreme
Court’s admonition that the deference that is to be afforded
an official’s probable cause determination “is not boundless.”
Leon, 468 U.S. at 914. As a result, judges at the service
courts of criminal appeals will undoubtedly conclude that a
commander’s probable cause determination—no matter how
meritless—is, for all intents and purposes, immune from
appellate review. And, it must be emphasized, this result is
a direct consequence of the Carter decision which we are
regrettably compelled to adhere to pursuant to the doctrine
of stare decisis, but which inarguably ignored the plain
language written by the President in M.R.E. 311(c)(3). This
is a shaky foundation indeed upon which to authorize a law
enforcement officer to conduct an invasive search of a
servicemember’s home.
    In the military’s search authorization process, this Court
must not permit the good faith exception to the exclusionary
rule to so subvert the essential role that a commanding
officer is required to play in providing the “detached scrutiny
of a neutral magistrate,” Leon 468 U.S. at 913 (internal
quotation marks omitted) (quoting United States v.
Chadwick, 433 U.S. 1, 9 (1977)), that we will place our
imprimatur on those instances where a commanding officer
merely rubber- stamps the request of a law enforcement
officer to search every crevice of a servicemember’s home. To
do so, as the majority has done in the instant case, renders




                              11
           United States v. Perkins, No. 18-0365/MC
                 Judge OHLSON, dissenting

illusory the protections afforded our servicemembers under
the Fourth Amendment to the Constitution.
   This Court should set aside the findings and sentence for
Specification 1 of Additional Charge III.




                             12
