Search Broader Than Warrant Authorized Cannot Be Saved By Good Faith

US v. Ray: Ray, a sailor in the US Navy, was alleged to have sexually assaulted an 8-year-old boy while babysitting him. Part of the allegations was that Ray had shown the boy videos of adult pornography as a prelude to the abuse. The boy did not allege that Ray recorded the abuse itself. A NCIS agent sought a “command authorization for search and seizure” – CASS – the military equivalent to a search warrant authorizing the seizure of (among other things) Ray’s phone, on which the agent “intended to do a full extraction.” The CASS ultimately authorized the seizure of the phone, but not the search of it. Nonetheless, the phone was both seized and search, uncovering child sexual abuse material (CSAM), but related to the original allegations. Ray was ultimately charged with five counts, including possession of CSAM and sexual assault of other victims. Ray successfully moved to suppress the evidence recovered from his phone.

On appeal by the Government, a divided Fourth Circuit affirmed the grant of Ray’s  motion to suppress. The Government agreed that the warrant did not authorize a search of the phone, but argued that Leon’s good-faith exception applied, based on the theory that the warrant itself was defective due to a lack of particularity. The court disagreed, holding that there was no deficiency in the warrant at all – it just wasn’t as broad as the Government wanted it to be: “The CASS was no deficient. Law enforcement was. Accordingly, the good faith exception does not apply.”

Judge Rushing dissented, arguing that the “majority today creates an exception to the exception, under which a court need not consider the objectively reasonable basis for an officer’s mistaken belief in the legality of a search if the warrant did not actually authorize the search.”