CAAF is considering the impact of questioning of a military suspect, after he invoked his right to remain silent and requested an attorney, in order to give investigators access to the suspect’s cell phone for a search, in the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page). The case was argued at the Notre Dame Law School on Tuesday, April 4, 2017.

While we await CAAF’s decision, the Air Force CCA decided a closely-analogous issue in two cases, one post-conviction and the other an interlocutory prosecution appeal under Article 62.

Without any reference to Mitchell, or to the uniquely-military Mil. R. Evid. 305(c)(2) (discussed in my argument preview in Mitchell as a way to decide the case in favor of suppression), the Air Force court holds that:

[W]e have a request by law enforcement for Appellant’s passcode, made after he invoked his right to counsel. Because there was no dispute as to Appellant’s ownership, dominion, or control over the phone, his knowledge of the passcode did not incriminate him. Investigators had no reason to believe that the passcode itself would be incriminating or communicate any information about the crime.

Therefore, applying Roa and Innis, we conclude that the request for the passcode did not constitute interrogation in violation of the Fifth Amendment. We also conclude that under the facts of this case, unlike in Hutchins, we need not determine whether investigators’ request for the passcode constituted a reinitiation of communication that represented a desire to open a more “generalized discussion relating directly or indirectly to the investigation.” Hutchins, 72 M.J. at 298 (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983)). This is because here, Appellant never engaged in a post-invocation “generalized discussion.” Consequently, there was no post-invocation interrogation or statement that the Government sought to admit against Appellant.

United States v. Robinson, 76 M.J. 663, __, No. 38942, slip op. at 11 (A. F. Ct. Crim. App. May 15, 2017) (link to slip op.). See also United States v. Blatney, No. 2016-16, slip op. at 7 (A. F. Ct. Crim. App. May 22, 2017) (link to slip op.) (interlocutory appeal) (“In other words, whether agents or the suspect re-initiated communication only becomes relevant if the suspect ultimately communicated an incriminating statement to the agents.”).

Mil. R. Evid. 305(c)(2) (formerly Mil. R. Evid. 305(g)(2)(B) (2012)) draws a pretty bright line:

If a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation.

This Rule may be read in a number of ways: as a codification of Edwards, as a uniquely-military rule to scrupulously protect the uniquely-military Article 31 rights, or as a combination of these factors. But its basic principle seems perfectly clear: that custodial interrogation must stop when a suspect requests an attorney, else any evidence obtained from further questioning will be inadmissible at court-martial.

The Air Force court’s opinion in Robinson, however, goes to significant length to frame this as a purely Fifth Amendment issue, asking:

Did investigators’ request for the passcode to Appellant’s cellular telephone, after Appellant had invoked his right to counsel but also voluntarily consented to a search of that phone, violate the Fifth Amendment where investigators had no reason to believe that the passcode itself would be incriminating? This is a question of law we review de novo and appears to be a question of first impression

Robinson, __ M.J. at __, slip op. at 8. The CCA does not consider the entirely different question of whether the Military Rules of Evidence are more protective of an accused than the Fifth Amendment. Cf. Article 31(b) (more protective than 5th Amendment). That’s a remarkable omission.

That the CCA would publish the decision in Robinson before CAAF decides Mitchell is also somewhat remarkable, though the NMCCA did the same thing last year when it published an opinion in United States v. Rendon, 75 M.J. 908 (N. M. Ct. Crim. App. Nov. 1, 2016) (discussed here), that found no error in the instruction at issue in United States v. McClour, 76 M.J. 23 (C.A.A.F. Jan. 24, 2017) (CAAFlog case page).


3 Responses to “The Air Force CCA considers two requests for cell phone passcodes (after invocations of rights) ahead of CAAF’s decision in Mitchell”

  1. Matt says:

    But the following the rules as written is hard!

  2. Brian Bouffard says:

    But the following the rules as written is hard!

    Exactly.  There’s nothing ambiguous in Articles 31(b), 36, or 46, either.  Congressional intent is quite clear.  But following the law is too inconvenient for the government, so we get RCMs and MREs that utterly eviscerate that clear language.  Because the G has to get its convictions, doesn’t it?

  3. DCGoneGalt says:

    If told to turn over your password, the only acceptable response is GFY.  
    And it ain’t “good for you”.