Let me tell you about the most reassuring five words in military justice.
“Assuming without deciding” — followed by “the good faith exception applies” (United States v. Johnson, No. 25-0202/AF, slip op. at 2, 12–13 (C.A.A.F. May 26, 2026)). The good faith exception to the exclusionary rule can admit evidence when investigators reasonably rely on a search authorization, even if the probable-cause showing was deficient.
Translation for the folks who don’t read appellate opinions for fun: the highest court in the military looked at a search of a man’s phone, shrugged, said “maybe there wasn’t probable cause — we’re not going to bother figuring that out,” and then let the evidence in anyway. Because the Air Force Office of Special Investigations (OSI) agent tried real hard. Bless his heart.
If that makes you feel warm and fuzzy about the sanctity of your Fourth Amendment rights, read on. As good faith exception examples go, this one is hard to beat, and I’ve got a bridge in Bavaria to sell you too.
United States v. Johnson: What Happened
Now let’s talk about how that sausage got made — and, more importantly, what you do with your phone so you’re not the next case caption.
Who Signed Off on the Search — and Why the Good Faith Exception Rests on It
Here’s my favorite footnote in the whole opinion, and I say that as a man who reads footnotes the way other people read menus.
The commander who approved this military search authorization? It was “the first search authorization ever granted by this commander” (slip op. at 4 n.3).
His qualification to serve as the neutral and detached magistrate standing between a citizen and the Government? “[O]ne mandatory training for new commanders” consisting of “approximately 80 PowerPoint slides” (id.).
Eighty slides.
I have sat through eighty-slide briefings. I have given eighty-slide briefings. And I can tell you with the authority of twenty-six years in uniform that nobody — nobody — remembers slide fifty-three. Somewhere around slide thirty the human soul leaves the body and hovers near the ceiling, waiting for the coffee break.
But this is the individual the law entrusts to independently weigh probable cause. See M.R.E. 315(d)(1). The “neutral and detached magistrate” the Supreme Court had in mind in United States v. Leon, 468 U.S. 897, 914 (1984), when it talked about according “great deference” to a magistrate’s probable-cause determination.
Great deference. To slide forty-one.
How OSI Justified an Eight-Month Phone Search
Here’s the part service members need to tattoo on the inside of their eyelids.
Theory One: He “Sanitized Himself”
The OSI agent, SA JA, built his case for searching eight months of phone data on a theory. The theory went like this: Johnson left his keys, wallet, and gym bag in his unlocked car parked near the building — but he carried two cell phones into the building (slip op. at 3–4).
From this, the agent reasoned that Johnson had “sanitized himself” — deliberately shed his identifying effects — but kept the phones because he was using the phones during the offense (slip op. at 4).
Read that again. The fact that he had his phones on him became evidence that the phones were instruments of the crime, which became the justification to search everything on them going back the better part of a year.
You carry a phone. I carry a phone. My eighty-year-old Turkish mother-in-law carries a phone, and she thinks Bluetooth is a dental condition. Possessing a phone is not a clue. It’s Tuesday.
Theory Two: A 2021 Incident in Turkey
And then the agent stacked a second theory on top: a “mirrored” unsolved intruder incident at Incirlik Air Base, Turkey, back on December 29, 2021 — roughly eight months before Aviano — where Johnson had been stationed, and the intruder’s description supposedly matched (slip op. at 4).
That “similarity” is what stretched the cell phone search window from one night to seven-and-a-half months (slip op. at 5).
Military Judge Doubted Probable Cause
Even the military judge — the one who ultimately let the evidence in — called it “a closer call” and said the Aviano and Incirlik facts alone “would not support probable cause on their own” to “go rummaging about in [Appellant’s] cell phones” (slip op. at 5–6). What “save[d]” the evidence, in the judge’s own words, was the two-phones-in-the-building business (id.).
So the whole eight-month digital strip-search hung on a hunch about why a man brought his phones inside.
How the Good Faith Exception to the Exclusionary Rule Works
Now here’s the legal mechanism, because you should understand exactly how the door closes on you.
M.R.E. 311(a) — The Exclusionary Rule
- Search violates the Fourth Amendment
- You had a privacy interest and objected in time
- Suppression deters more than it costs
- Evidence is kept out
M.R.E. 311(c)(3) — The Good Faith Exception
- Evidence comes in when all three are met:
- Competent authority issued the authorization
- Substantial basis for probable cause
- Reasonable, good faith reliance by law enforcement
What the Exclusionary Rule Normally Does
When a search violates the Fourth Amendment, the exclusionary rule normally keeps that evidence out — if you object in time, if you had a privacy interest in what was searched, and if suppression would deter future violations more than it costs the system (M.R.E. 311(a)). That’s the whole point — it’s the consequence that supposedly keeps the Government honest.
The Good Faith Test Under M.R.E. 311(c)(3)
But United States v. Leon created an escape hatch: the good faith exception to the exclusionary rule. If law enforcement “reasonably relied” on a warrant issued by a neutral magistrate, the evidence comes in even if the warrant was garbage (468 U.S. at 922). In the military, that’s codified at M.R.E. 311(c)(3), and it turns on three things:
- A competent authority issued the authorization
- That authority had a “substantial basis” for finding probable cause
- Law enforcement “reasonably and with good faith relied” on it
(Nieto, 76 M.J. 101, 107, (C.A.A.F. 2017); M.R.E. 311(c)(3)).
When Good Faith Does Not Save the Evidence
And United States v. Leon itself listed the situations where good faith does not save you — including a warrant “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” and a magistrate who “wholly abandoned his judicial role” and became a “rubber stamp” (Carter, 54 M.J. 414, 419–20, (C.A.A.F. 2001) citing Leon, 468 U.S. at 923).
Why CAAF Skipped Probable Cause Entirely
So CAAF didn’t even decide whether the search was legal. It went straight to good faith, “assum[ed] without deciding” there was no probable cause, and held the agent relied on the authorization in good faith (slip op. at 12–13).
Why was the reliance reasonable? Because — and I want you to appreciate this — the agent had talked to a judge advocate who also thought there was probable cause (slip op. at 14–15). A JAG blessed it.
Let me make sure I’ve got the logic straight. The search might have been unconstitutional. But it’s fine, because a lawyer who was also wrong told the agent it was fine. Two wrongs don’t make a right, but apparently they make an admissible.
The Dissent: Good Faith Should Not Have Applied
Now, in fairness — and I always give you the other side, because you deserve to know where the real fight is — one judge saw exactly what I see.
Chief Judge Ohlson dissented, and he came out swinging. He opened by quoting himself from a 2023 case, Lattin, where he’d called an OSI search “a classic and straightforward example of a blatantly unconstitutional fishing expedition.” Then: “Three years later, here we are again” (slip op. at 1, Ohlson, C.J., dissenting).
Ohlson didn’t assume-without-deciding anything.
He’d have found a “glaring lack of probable cause” (id. at 1 n.1). He said the affidavit was “so lacking in indicia of probable cause” that the good faith exception to the exclusionary rule couldn’t save it, and that the commander “abdicated his judicial role” and served as “an exemplar of a commander acting as a ‘rubber stamp'” (id. at 2–3, quoting Leon, 468 U.S. at 923; Carter, 54 M.J. at 419).
And as for the JAG’s blessing? Ohlson called it “woefully incorrect advice” and “governmental gross negligence” that the exclusionary rule exists precisely to deter (id. at 4 n.2).
His closing line ought to be read aloud at every OSI in-processing briefing: if we don’t penalize this, “we should not be surprised if government investigators come to believe that there will be no negative consequences if they fail to comply with the rule of law” (id. at 5).
One judge. In dissent. Which means it’s the losing side. Which means it’s the law that wasn’t adopted. Which means you plan your life around the majority.
How to Protect Your Phone From a Military Search
Here’s where I stop being sarcastic for exactly ninety seconds, because this is the part that matters.
Your phone can become the case against you. Not part of it. All of it. Everything you’ve ever texted, photographed, searched, saved, or forgot to delete is sitting in your pocket in a device the Government can crack open with a commander’s signature and a JAG’s shrug. Johnson is the proof: the man was acquitted of the sexual-contact charge, but the phone contents — feet photos, locker-room video, images going back months — locked in the convictions that stuck (slip op. at 2, 6).
So let’s talk about what you control. Because United States v. Johnson teaches something the opinion never says out loud: how you secure your device shapes what the Government can actually get.
Use a Passcode
A real one. Not your birthday. Here’s the distinction that matters more than any other on this page. In the civilian world and in most military practice, a numeric or alphanumeric passcode — something you know, stored in your head — gets the strongest protection against being compelled out of you, because forcing you to speak a password can implicate your right against self-incrimination.
A fingerprint or a face — Touch ID, Face ID — is something you are, and many courts have been more willing to let the Government compel a biometric unlock, though the law is unsettled and varies by jurisdiction. Your face can be held up to a phone. Your thumb can be pressed to a sensor. The number in your head is a lot harder to pry loose.
Know How to Disable Biometrics Fast
So set a strong alphanumeric passcode and know how to disable biometrics fast. On an iPhone, holding the side button and a volume button (or five quick presses of the side button) forces the phone back to requiring the passcode — biometrics are temporarily off. Learn the equivalent on your Android. Learn it now, not in the back of a security-forces vehicle.
Turn on the setting that requires a passcode after a restart, and know how to power your phone all the way down. A phone that’s been powered off requires the passcode on boot — biometrics won’t open it cold. That single habit changes the math.
“I Don’t Consent” Is a Complete Sentence
Understand: “I don’t consent” is a complete sentence. In most situations, you are not required to hand over your PIN, and you are never required to answer questions — but lawful orders, grants of immunity, and compelled process are separate questions a lawyer has to sort out. Johnson’s phones got searched under an authorization, not his consent — but plenty of service members hand over passwords voluntarily because someone with a badge asked nicely. Don’t. Invoke. Ask for a lawyer. Then stop talking.
Never Delete or ”Sanitize” Anything
Do not “sanitize” anything. I mean this precisely. The Johnson record shows how ordinary behavior gets spun into a narrative of guilt — carrying two phones became “he was using them in the offense” (slip op. at 4). If you start deleting, wiping, or staging your device after you know you’re under investigation, you have just handed the Government a consciousness-of-guilt argument, and depending on the facts, exposure to additional charges. The time to control what’s on your phone is every ordinary day — not the day the agents show up.
Assume the Search Will Be Broad
United States v. Johnson let an eight-month rummage stand without ever deciding whether it was lawful. If the Government gets into your device, they are not politely confining themselves to one date. Live your digital life like the whole thing could be read aloud in a courtroom. Because in Johnson, it was.
Where the Good Faith Exception Leaves You
The Government searched a man’s phone. The court would not even say the search was legal. And the evidence came in anyway — not because the affidavit was strong, but because the paperwork got cleaned up and a judge advocate signed off on the theory.
That’s the state of the good faith exception to the exclusionary rule in 2026. “Assuming without deciding” there was no probable cause — affirmed.
If you are under military investigation, or you think you might be, the single most valuable thing you own is the phone in your pocket and the right to keep your mouth shut. Protect both. Get a court-martial lawyer who has actually argued a motion to suppress evidence — before the panel walks in, not after.
At the Law Office of Will M. Helixon, that’s the fight we know cold. We’ve stood in that courtroom when the Government’s whole case is sitting in a forensic extraction report. If OSI, CID, or NCIS is looking at your device — or has already cracked it open — call us before you say one more word.
FAQ
Can a Commander Authorize a Search of a Service Member's Phone?
Yes. Under Military Rule of Evidence 315, a commander may authorize a search when the commander has authority over the place or person to be searched and finds probable cause based on the information presented. The commander must act as a neutral and detached issuing official — not as an investigator or a rubber stamp. That neutrality matters, because the good faith exception to the exclusionary rule assumes the issuing official actually weighed probable cause.
Do Service Members Have to Give OSI Their Phone PIN?
Not merely because OSI asks. Consent must be voluntary, and a request for a PIN can raise self-incrimination issues. A lawful order, a search authorization, and compelled disclosure are different questions, so do not guess at the scene: state that you do not consent, request counsel, and stop discussing the device.
Can Investigators Compel Face ID or a Fingerprint Unlock?
Sometimes, but the answer is not uniform. Whether agents may compel Face ID or a fingerprint depends on the controlling jurisdiction, the device’s state, the requested act, and whether that act communicates testimonial information. Do not consent or physically resist. Ask for counsel and require the Government to rely on lawful authority.
How Do I Challenge an Unlawful Military Phone Search on Appeal?
An appellate challenge starts with the trial record. Appellate counsel should identify the search authorization, the supporting affidavit or testimony, the defense motion to suppress evidence, the military judge’s findings and legal conclusions, and the precise evidence admitted from the phone. The appeal must then attack the ruling under the correct standard of review and explain prejudice — how the admitted phone evidence affected the findings or sentence. An appellate court can rarely repair a record the defense never made.
What Must a Defense Lawyer Preserve for a Suppression Issue on Appeal?
Preserve the authorization, affidavit, attachments, extraction reports, agent notes produced in discovery, hearing exhibits, witness testimony, and the military judge’s findings. File a specific motion to suppress evidence, litigate both probable cause and the Government’s claimed good faith reliance, and state every objection and requested remedy on the record. If the ruling changes or new evidence appears, renew the objection. Silence leaves appellate counsel fighting with one hand tied behind the back.
What Is the Good Faith Exception to the Exclusionary Rule?
It is the rule that lets illegally obtained evidence stay in the case when law enforcement reasonably relied on a search authorization that later turns out to be invalid. In the military, M.R.E. 311(c)(3) requires that a competent authority issued the authorization, that the authority had a substantial basis for probable cause, and that investigators relied on it reasonably and in good faith. Johnson is a good faith exception example: the court never decided whether the search was legal, and the phone evidence came in anyway.
This post is written for general educational purposes and is not legal advice to any person or matter.
