United States v. Smith

• Court: Court of Appeals for the Armed Forces
• Decided: February 22, 2019
• Docket: 18-0211/AR
• Status: Published

Opinion

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee v. Graham H. SMITH, Warrant Officer One United States Army, Appellant No. 18-0211 Crim. App. No. 20160150 Argued January 22, 2019—Decided February 22, 2019 Military Judge: Deidra J. Fleming For Appellant: William E. Cassara, Esq. (argued); Major Julie L. Borchers and Bryan E. DePowell, Esq. (on brief); Captain Daniel C. Kim. For Appellee: Captain Meredith M. Picard (argued); Colonel Steven P. Haight and Major Hannah E. Kaufman (on brief). _______________

PER CURIAM:

We granted review to determine (1) whether the military judge abused her discretion in denying a defense motion to suppress evidence from Appellant’s cell phone, and (2) whether the United States Army Court of Criminal Appeals (CCA) erred in concluding that Appellant waived the issue he now raises by failing to raise it at trial. We hold that Appellant waived his current objection, and thus need not reach the issue of whether the evidence was inadmissible. I. Posture and Background Appellant’s conviction stemmed from an incident in July 2014 in which he used his iPhone to take “upskirt” photos of a woman at the Fort Rucker commissary. For his conduct, a military judge sitting alone as a general court-martial con- victed Appellant, contrary to his pleas, of indecent recording in violation of Article 120c, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920c (2012 & Supp. I 2014). Appellant United States v. Smith, No. 18-0211/AR Opinion of the Court

was sentenced to a dishonorable discharge and confinement for two months. The convening authority approved the ad- judged sentence, and the CCA affirmed. United States v. Smith, 77 M.J. 631, 637 (A. Ct. Crim. App. 2018). At trial, defense counsel moved to suppress evidence de- rived from Appellant’s iPhone on two grounds: (1) the un- lawful seizure of Appellant’s phone; and (2) the lack of prob- able cause justifying the search. After initially granting the motion, the military judge reconsidered and ultimately re- versed her ruling. II. Law and Discussion On appeal before the CCA, Appellant challenged for the first time the search of his iPhone because it was opened us- ing the connection to his laptop computer. He argues that defense counsel’s failure to specifically articulate a challenge on this ground “should not be considered waiver and thus fatal to further review.” We disagree. This Court has recognized that “[w]aiver can occur either by operation of law or by the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (citations omitted) (emphasis added). Indeed, in United States v. Rob- inson, we held that Military Rule of Evidence (M.R.E.) 311(d)(2)(A) “unambiguously establishes that failure to ob- ject is waiver, and is not a rule that uses the term ‘waiver’ but actually means ‘forfeiture.’ ” 77 M.J. 303, 307 (C.A.A.F. 2018). In light of our unambiguous holding in Robinson, we re- ject the Government’s concession that “[w]here [an] appel- lant moves to suppress evidence under M.R.E. 311 but fails to articulate a possible ground upon which to suppress the evidence, this forfeits (but does not waive) the issue.” While the Government correctly notes that “this Court has found that there are instances where the plain language of a mili- tary rule for court-martial or rule of evidence reads ‘waiver’ but may be interpreted as ‘forfeiture,’ ” it somehow missed the fact that we have already decided that this is not one of those instances. Given the parties’ confusion, we take this opportunity today to reiterate that failure to object under

2 United States v. Smith, No. 18-0211/AR Opinion of the Court

M.R.E. 311 constitutes waiver, not forfeiture. Robinson, 77 M.J. at 307. In the instant case, it is indisputable that Appellant failed to raise the use of his computer as a “key” to open his iPhone as a possible ground for suppression in either his written motion to suppress or at the suppression hearing. Appellant concedes this point. Thus, he waived the issue. Given this conclusion, we need not reach the first issue raised by Appellant. III. Judgment The judgment of the United States Army Court of Crimi- nal Appeals is affirmed.