United States v. Harborth (2025)

I concur in the Court's judgment to set aside the decision of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) and to return the case to the Judge Advocate General of the Navy for remand to the NMCCA for further proceedings. I also join Parts I, II.A, II.B, and III of the Court's opinion. I differ just with respect to Part II.C.

Certified Issue VI asks whether Appellant had ineffective assistance of counsel at trial. Appellant asserts that his trial defense counsel's representation was deficient because his counsel did not ask the military judge to suppress evidence from his devices on the ground that the Government's three-month delay in obtaining a search authorization constituted an unreasonable seizure. The Court rejects this argument, reasoning that even if the military judge had determined that an unreasonable seizure had occurred, the military judge would not have excluded the evidence after applying the balancing test in Military Rule of Evidence 311(d)(5)(A).

I agree with the Court that the Sixth Amendment does not require counsel to make a motion to suppress evidence that is unlikely to succeed. United States v. Jameson, 65 M.J. 160, 164 (C.A.A.F. 2007) (citing United States v. Del Rosario-Puente, 41 F. App'x 483, 484 (1st Cir. 2002)). I also agree with the Court that the military judge was unlikely to grant a motion to suppress the evidence found on Appellant's devices. But my reasoning is different. While the Court decides that the military judge would not have applied the exclusionary rule, I believe that the military judge was unlikely to have found that the police's continued retention of the devices in this case constituted an unreasonable seizure. In my view, this is a simpler and less speculative reason for rejecting Appellant's ineffective assistance of counsel claim. 1

Even assuming that the police's retention of property voluntarily given to the police by a third party constitutes a “seizure,” the Fourth Amendment prohibits only unreasonable seizures. United States v. Jacobsen, 466 U.S. 109, 120-21 (1984) (holding that federal agents’ “assertion of dominion and control” over property was a warrantless seizure, but not an unreasonable one). A key fact in assessing the reasonableness of the police's actions in this case is that Appellant never asked the police to return his devices before they were searched. 2 Appellant has cited no precedent that clearly establishes that the government unreasonably interferes with an accused's possessory interests in property when the police's initial receipt of the property was not a seizure and the accused never requested the return of the property. Accordingly, a trial defense counsel could reasonably decide that seeking suppression would be futile because the military judge would not hold that an unreasonable seizure had occurred. Trial defense counsel's performance in this case therefore was not deficient.

FOOTNOTES

1.   I express no opinion on the correctness of the Court's conclusion that the military judge would not have applied the exclusionary rule even if the military judge had found retention of the devices to be an unreasonable seizure.

2.   The Supreme Court recognized the Fourth Amendment significance of a lack of a request for the return of property in police custody in United States v. Johns, 469 U.S. 478 (1985). In that case, the police properly seized the defendants’ trucks and had authority to search the contents of packages within the trucks. Id. at 483-86. The defendants, however, argued that federal agents had violated the Fourth Amendment by retaining possession of the packages found in the trucks for several days before searching them. Id. at 482-83. The Supreme Court rejected their argument, concluding that the search following the short delay “was reasonable” in part because the defendants “never sought return of the property.” Id. at 487.

Judge MAGGS, with whom Judge HARDY joins, concurring in part and in the judgment.