110 - The "Bad Faith" Exception (Johnson)

Send us Fan MailOn this week's episode, Sam and Trevor tackle the CAAF's most recent decision on the good faith exception: United States v. Johnson, No. 25-0202/AF, 2026 CAAF LEXIS 464 (C.A.A.F. May 26, 2026). Before diving into that case, though, the duo discuss a new Supreme Court case on Batson challenges: Pitchford v. Cain, No. 24-7351, 2026 U.S. LEXIS 2296 (May 28, 2026). There, the Supreme Court reversed the Fifth Circuit, concluding that a criminal defendant has the right under Batson to have the trial judge fully analyze a Batson claim once a prima facie showing is made. The two then turn to Johnson. There, the CAAF held that the good faith exception applies so long as a judge advocate advises law enforcement/the search authority that there is probable cause (even when there is no probable cause…). For this, the CAAF relied heavily on United States v. Perkins, 78 M.J. 381 (C.A.A.F. 2019), where the CAAF found the good faith exception applies whenever search authorities rely on the advice of government lawyers. The CAAF also relied on United States v. Leon, 468 U.S. 897 (1984), a Supreme Court case discussing the good faith exception, Mil. R. Evid. 311, which incorporates Leon's test, and United States v. Hernandez, 81 M.J. 432 (C.A.A.F. 2021).This expansive view of the good faith exception draws the ire of both Sam and Trevor, as well as Chief Judge Ohlson, who writes a powerful dissent. Referencing the problems highlighted in United States v. Lattin, 83 M.J. 192 (C.A.A.F. 2023), Chief Judge Ohlson emphasized that “it is judicially necessary to penalize reckless or grossly negligent government behavior. . . . Otherwise, 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.”Please send your questions, comments, or concerns to [email protected]. We look forward from hearing from you!