United States v. Robinson ( 2018 )

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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United States v. Robinson, No. 17-0504/AF
Opinion of the Court
….
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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United States v. Robinson, No. 17-0504/AF
Opinion of the Court
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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Opinion of the Court
[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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Opinion of the Court
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.
6
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Opinion of the Court
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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Opinion of the Court
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).
8
United States v. Robinson, No. 17-0504/AF
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.