United States v. Robinson

• Court: Court of Appeals for the Armed Forces
• Decided: March 26, 2018
• Docket: 17-0504/AF
• Status: Published

Opinion

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee v. Hank W. ROBINSON, Senior Airman United States Air Force, Appellant No. 17-0504 Crim. App. No. 38942 Argued January 24, 2018—Decided March 26, 2018 Military Judge: Matthew P. Stoffel For Appellant: Major Mark C. Bruegger (argued); Captain Patricia Encarnación-Miranda (on brief). For Appellee: Major Tyler B. Musselman (argued); Colonel Katherine E. Oler and Lieutenant Colonel Joseph Kubler (on brief); Mary Ellen Payne, Esq. Amici Curiae for Appellant: Colonel Mary J. Bradley, Lieu- tenant Colonel Christopher D. Carrier, and Captain Joshua B. Fix (on brief) — for United States Army Defense Appel- late Division; Jamie Williams, Esq., and Mark Rumold, Esq. (on brief) — for Electronic Frontier Foundation; Brett Max Kaufman, Esq., and Patrick Toomey, Esq. (on brief) — for American Civil Liberties Union; Arthur B. Spitzer, Esq. (on brief) — for American Civil Liberties Union of the Dis- trict of Columbia. Judge OHLSON delivered the opinion of the Court, in which Judges RYAN and SPARKS, and Senior Judge EFFRON, joined. Chief Judge STUCKY filed a separate dissenting opinion. _______________

Judge OHLSON delivered the opinion of the Court. Contrary to Appellant’s pleas, a general court-martial composed of officer and enlisted members convicted Appel- lant of one specification of communicating indecent language to a child in violation of Article 120b, Uniform Code of Mili- tary Justice (UCMJ), 10 U.S.C. § 920b (2012). 1 The panel

1 The panel acquitted Appellant of two specifications of rape of a child and three specifications of assault consummated by a bat- United States v. Robinson, No. 17-0504/AF Opinion of the Court

sentenced Appellant to a bad-conduct discharge, confine- ment for one month, and reduction to the grade of E-1. The convening authority approved the sentence as adjudged. The United States Air Force Court of Criminal Appeals affirmed the findings and sentence. This Court then granted review. I. Factual Background

In October of 2014, the Beale Air Force Base detachment of the Office of Special Investigations (OSI) learned of an al- legation that Appellant had sexually abused his minor step- daughter. On the morning of December 22, 2014, OSI agents brought Appellant into their offices for questioning. One of the agents read Appellant his rights under Article 31, UCMJ, 10 U.S.C. § 831 (2012), and informed Appellant that he was under investigation for sexual assault of a child. After acknowledging that he understood his rights, Ap- pellant invoked his right to counsel. The agent then told Ap- pellant that he still had some administrative matters to complete such as taking Appellant’s photograph and finger- prints. In the course of completing these steps, the agent asked for Appellant’s consent to “look through [Appellant’s] phone.” Appellant said he did not mind, but asked the agent what he was looking for. The agent said that he was looking for evidence “related to the offense under investigation.” Ap- pellant then provided the agent with verbal consent to search the contents of his phone saying, “There is nothing [in there], but yeah.” The agent next provided Appellant with a consent to search form. The consent form stated in pertinent part as follows: I know that I have the legal right to either con- sent to a search, or to refuse to give my consent. I understand that if I do consent to a search, any- thing found in the search can be used against me in a criminal trial or in any other disciplinary or ad- ministrative procedure. I also understand that if I do not consent, a search cannot be made without a warrant or other authorization recognized in law.

tery in violation of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920, 928 (2006 & 2012).

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….

Before deciding to give my consent, I carefully considered this matter. I am giving my consent vol- untarily and of my own free will, without having been subjected to any coercion, unlawful influence or unlawful inducement and without any promise of reward, benefit, or immunity having been made to me. The Investigators have my permission to take any letters, papers, materials, articles or other property they consider to be evidence of an offense, including contraband for use as evidence in any criminal prosecution hereafter initiated. I have read and understand this entire acknowledgement of my rights and grant of my consent for search and seizure. After Appellant completed the form, the agent left the room. However, the agent reentered the room approximately one minute later and said to Appellant: “Just so we don’t mess up your phone or anything, can you give us your pass- word?” Appellant then provided his four-digit passcode to the agent. Another agent took Appellant’s cell phone, went into an- other room, entered the passcode, and created a digital copy of the cell phone’s contents. The agent then returned the phone to Appellant. Appellant left the OSI offices and ap- proximately six hours later revoked his consent to search after consulting with his attorney. Upon examining the digi- tal copy of the cell phone’s contents, OSI discovered incrimi- nating text messages between Appellant and his stepdaugh- ter. Prior to trial, Appellant moved to suppress the text mes- sages recovered from his phone. The military judge asked trial defense counsel to clarify the basis for this motion and the following colloquy ensued: [Military Judge]: So Defense Counsel, what exactly is it that you are challenging and what is your legal basis for doing so? [Defense Counsel]: Your Honor, [Military Rule of Evidence] 304 is one of the bases we find that it was an involuntary statement. The prophylactic created by Edwards was for precisely that. After you’ve been read your rights, you can exercise your rights; you don’t have to answer more questions.

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They can’t keep asking you questions. And so it was involuntary because it was after what should have been a valid rights advisement. We’re also asking under just Article 31. Article 31 says you have that right to remain silent, in ef- fect, and have the right to counsel present. He in- voked that right; it wasn’t respected. Also under the Fifth and Sixth Amendment, Your Honor, right to counsel, right to silence. [Military Judge]: Okay. So am I interpreting it cor- rectly, then, that what you’re challenging is that the statement that he made to OSI in response for the request for his phone password was involun- tary? [Defense Counsel]: A moment, Your Honor? [Assis- tant defense counsel conferred with defense coun- sel.] [Defense Counsel]: Your Honor, not just the — not just the password, but also the consent to search it- self. [Military Judge]: The consent itself. Okay. So two bases? [Defense Counsel]: Yes, Your Honor. [Military Judge]: And that’s where the confusion lay, because the burden of proof and persuasion cit- ed by both parties with respect to the motion at hand was that the burden is on the government by a preponderance of the evidence; whereas, if you’re challenging consent, the burden is by clear and convincing evidence to demonstrate that the con- sent was voluntary. So do I then understand it that you are challenging both the statement and wheth- er or not he gave consent? [Defense Counsel]: Yes, Your Honor. [Military Judge]: Even before being asked about the password? [Defense Counsel]: Yes, Your Honor. …. [Military Judge]: So Defense, as I understand your argument, even if this court were to find that the consent was valid and voluntarily given and estab- lished by clear and convincing evidence, your posi- tion is that doesn’t end the analysis because we’re looking at the statement [of the passcode] itself?

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[Defense Counsel]: Yes, Your Honor. After making extensive findings of fact, the military judge denied the defense motion to suppress. II. Issues on Appeal

This Court granted Appellant’s petition for review on the following issues: I. Whether the military judge abused his discretion by failing to suppress evidence obtained from ap- pellant’s cell phone.

II. Whether the Air Force Court erred in holding Appellant waived objections regarding investiga- tors exceeding the scope of Appellant’s consent.

III. Analysis

A. Issue I The first issue in this case presents two interrelated questions. When an accused invokes his right to counsel but then consents to a search of his cell phone, is it constitution- ally permissible for an investigator to ask the accused for the passcode to that cell phone in order to effectuate the consensual search? Or in the alternative, does the investiga- tor’s request for the passcode constitute a reinitiation of in- terrogation under Edwards v. Arizona, 451 U.S. 477 (1981), and thus a violation of the accused’s Fifth Amendment right against self-incrimination? 2 In United States v. Frazier, 34 M.J. 135, 137 (C.M.A. 1992), we held that “[a] request for a consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not in- terrogations and the consent given is ordinarily not a state-

2 Military Rule of Evidence (M.R.E.) 305(c)(4) incorporates the Edwards rule. It states: “If a person chooses to exercise the privi- lege against self-incrimination, questioning must cease immedi- ately. If a person who is subjected to interrogation … chooses to exercise the right to counsel, questioning must cease until counsel is present.” Id.

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ment.” 3 Similarly, in United States v. Burns, 33 M.J. 316, 320 (C.M.A. 1991), we rejected the appellant’s claim that his Fifth Amendment and Article 31, UCMJ, rights were violat- ed because the request for a consent to search came after the appellant invoked his right to counsel. We stated that “re- questing consent to search property in which a suspect has an interest is not prohibited by his prior request for counsel, because Edwards provides protection only as to interroga- tion.” Id. (internal quotation marks omitted) (quoting United States v. Roa, 24 M.J. 297, 301 (C.M.A. 1987)). In applying the holdings of those two cases to the facts presented here, it is clear that when the investigator asked Appellant for consent to search his cell phone, that inquiry fit squarely within the consent to search exception of Ed- wards. Cf. United States v. Hutchins, 72 M.J. 294, 296–98 (C.A.A.F. 2013) (recognizing that under the particular cir- cumstances of the case, a request by law enforcement for consent to search after the accused had invoked his right to counsel constituted a reinitiation of communication in viola- tion of Edwards). 4 Moreover, we conclude that when the in- vestigator shortly thereafter asked Appellant for the passcode to that cell phone for the sole purpose of effectuat- ing the search that he had just voluntarily consented to, that second inquiry was merely a natural and logical extension of the first permissible inquiry. Thus, because of its nature, purpose, and scope, this second inquiry similarly did not rise to the level of a reinitiation of interrogation. Accordingly, we hold that the second inquiry also fit squarely within the con-

3 Article 31(a), UCMJ, provides as follows: “No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.” 4 We reject Appellant’s argument that United States v. Mitch- ell, 76 M.J. 413 (C.A.A.F. 2017), governs the instant case. The facts of Mitchell are distinguishable from Appellant’s case, primar- ily because Mitchell involved a search authorization of the ac- cused’s cell phone, id. at 416, rather than a voluntary consent to search, as here. See id. at 415 (“We address today the Fifth Amendment limits on asking a suspect to unlock his phone when the device has been seized pursuant to a valid search and seizure authorization.” (emphasis added)). Rather, our decisions in Frazier and Burns are directly applicable to this case.

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sent to search exception of Edwards and did not constitute a violation of the accused’s Fifth Amendment right against self-incrimination. Because Appellant voluntarily consented to providing his passcode to investigators, we hold that the military judge did not abuse his discretion in denying the defense motion to suppress the evidence obtained from Appellant’s cell phone. 5 B. Issue II In regard to the second issue, Appellant argues that the CCA erred when it held that Appellant waived any objection about the OSI agents exceeding the scope of the consent to search that was provided by Appellant. Our discussion of this issue need not detain us long. Military Rule of Evidence 311(d)(2)(A) provides as fol- lows: When evidence has been disclosed prior to ar- raignment…, the defense must make any motion to suppress or objection under this rule prior to sub- mission of a plea. In the absence of such a motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the motion or objec- tion. (Emphasis added.) The rule unambiguously establishes that failure to object is waiver, and it is not a rule that uses the term “waiver” but actually means “forfeiture.” See United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (holding that failure to object constituted waiver under M.R.E. 304 (f)(1)). 6 When there is

5 We note that there is nothing in the record that indicates that investigators used the cell phone passcode to unlock any oth- er passcode-protected property, or that trial counsel used the passcode as substantive evidence against Appellant at trial. 6 We note that the issue of waiver under M.R.E. 311(d)(2) was previously reached. United States v. Stringer, 37 M.J. 120, 125 (C.M.A. 1993) (“In view of the absence of a particularized objection at trial … we will consider the issue waived.”); see also id. at 132 (Wiss, J., concurring in the result) (finding that waiver “makes good sense” under M.R.E. 311(d) when defense counsel’s objection to issues other than that raised on appeal prevented appellate is-

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a waiver of an issue, that issue is extinguished and may not be raised on appeal. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). In the instant case—as reflected in the colloquy between the military judge and trial defense counsel—at no time dur- ing the litigation of the motion to suppress did trial defense counsel raise the issue of the scope of Appellant’s consent to search. Rather, trial defense counsel clarified that there were two bases for the motion to suppress: Appellant’s con- sent to search the phone was not voluntary, and the investi- gator’s request for the password to the phone violated M.R.E. 304 and Article 31, UCMJ. Trial defense counsel did not challenge the propriety of the agent’s creation of a digi- tal copy of the cell phone’s contents, nor did he argue that the incriminating evidence found in the cell phone should be suppressed because Appellant had revoked his consent to search prior to OSI’s discovery of the texts introduced at tri- al. We therefore hold that the CCA was correct in ruling that the arguments Appellant now seeks to first raise on ap- peal about the scope of the agents’ search were waived and that they are therefore extinguished. IV. Decision The decision of the United States Air Force Court of Criminal Appeals is affirmed.

sue from being litigated at trial and may have precluded prosecu- tion from submitting evidence which would have clarified matter).

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Chief Judge STUCKY, dissenting.

Unlike the majority, I believe that our recent decision in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. 2017), con- trols the disposition of this case. While I freely concede that a request for consent to search is not an interrogation under long-standing precedent, see United States v. Frazier, 34 M.J. 135, 137 (C.M.A. 1992), the majority extends that rule too far. In Mitchell, this Court unequivocally stated that “asking [a suspect] to state his passcode involves more than a mere consent to search; it asks [him] to provide the Government with the passcode itself, which is incriminating information in the Fifth Amendment sense, and thus privileged.” Mitch- ell, 76 M.J. at 418 (second emphasis added). This is because “ ‘[t]he privilege … not only extends to answers that would in themselves support a conviction … but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute ….’ ” Id. (alterations in original) (quot- ing Hoffman v. United States, 341 U.S. 479, 486 (1951)). The majority distinguishes Mitchell on the ground that Mitchell involved a valid search and seizure authorization rather than a consent to search. I find this distinction to be unpersuasive. Our decision in Mitchell did not turn on the nature of the search. Instead, our analysis focused on whether the accused was in custody and subject to interro- gation. Having found both, we deemed the contents of the accused’s phone inadmissible. Id. at 415. Moreover, the majority cites no authority for extending the consent to search exception of Edwards to follow-up re- quests that effectuate the search. Instead, my colleagues re- ly on the “nature, purpose, and scope” of the inquiry to con- clude that the passcode request did not constitute a reinitiation of interrogation and thus fell within the consent to search exception. I disagree. In my view, while the passcode request here may well have naturally and logically followed a request for consent to search, it also qualified as an interrogation. See id. at 418. Accordingly, I respectfully dissent. As my resolution of this issue would moot the second, I do not address it.