Docket – February 20, 2019

4th U.S. Circuit Court of Appeals

United States v. Seerden (P), 4th Cir. (Thacker) from EDVA at Norfolk (Jackson).

In federal criminal proceedings against a member of the U.S Navy, the Fourth Amendment governs whether evidence is admissible, not the Military Rules of Evidence.

Based on a military search warrant arising from sexual assault allegations, the Naval Criminal Investigation Service found child pornography on the servicemember’s cell phone. Investigators then obtained a federal warrant to search the phone a second time and again found child pornography. The servicemember contends that the first search violated the Military Rules of Evidence, but those rules can’t usurp the Fourth Amendment.

Even if the initial warrant had violated the Fourth Amendment, the good faith exception to the exclusionary rule precludes suppression of evidence obtained from the first search. The affidavit supporting the military warrant detailed sexual assault allegations and noted admissions the servicemember made during a controlled text conversation orchestrated by NCIS agents. Presented with such information, it would not be entirely unreasonable for an officer to believe that the military warrant was supported by probable cause.

Affirmed.

U.S. District Court – Virginia Western

Wheeler v. Commonwealth, WDVA at Roanoke (Conrad).

A reasonable jury could find that the the plaintiff, a former employee of the Virginia Alcoholic Beverage Control Board, suffered an objectively hostile or abusive work environment. Her manager engaged in unwanted physical contact on multiple occasions when he and the plaintiff worked together.

Jurors could find that the manager’s conduct was not only sexual but physically threatening or demeaning. The same is true for the subsequent occasions where cornered the plaintiff in the store and made unwanted sexual advances toward her. He also made comments about her attractiveness, both to her and to customers, and he discussed sexually explicit topics.

Although the parties dispute whether the manager was the plaintiff’s supervisor for purposes of vicarious liability, ABC is not entitled to summary judgment in any event because a reasonable jury could find that ABC had notice of the sexual harassment alleged. The plaintiff reported each incident, as provided in ABC’s harassment policy. The fact that the supervisors who received the plaintiff’s complaints failed to report them to ABC Human Resources, in violation of the policy, does not render ABC immune from liability at this stage of the proceedings.

A reasonable jury could also find that ABC did not respond with reasonable corrective action. The offending manager was not disciplined following the allegations of unwanted physical contact and sexual advances; he was just kept from working with the plaintiff. Evidence suggests that during this time, he had inappropriate interactions with other women while on duty, and he immediately engaged in sexually offensive conduct when he and the plaintiff worked together again. Although the harassment policy has been described as having “zero tolerance” for sexual harassment, the manager was merely counseled in 2016 after he was determined to have violated the policy.

However, ABC has proffered a legitimate reason for terminating the plaintiff’s employment, and the plaintiff has failed to create a genuine issue of material fact with respect to her claim of retaliation.

Motion for summary judgment granted in part and denied in part.



Categories: Daily Dockets

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