Argument Preview: Determining the reach of CAAF’s decision in Mitchell, in United States v. Robinson
CAAF will hear oral argument in the Air Force case of United States v. Robinson, No.17-0504/AF (CAAFlog case page), on Wednesday, January 24, 2018, after the argument in Blanks. Two granted issues challenge the admission of evidence obtained by military investigators from the appellant’s cell phone, based on the fact that the investigators requested the passcode to the phone from the appellant after he involved his right to counsel:
I. Whether the military judge abused his discretion by failing to suppress evidence obtained from Appellant’s cell phone.
II. Whether the Air Force Court erred in holding Appellant waived objections regarding investigators’ exceeding the scope of Appellant’s consent.
Last term, in the interlocutory case of United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page), CAAF held that because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, the contents of a cell phone must be suppressed when military investigators request the passcode to decrypt the phone after the suspect requests an attorney. The decision was the #4 Military Justice Story of 2017.
Senior Airman (E-4) Robinson was convicted of communicating indecent language to a minor in violation of Article 120b, and sentenced to confinement for one month, reduction to E-1, and a bad-conduct discharge. The evidence admitted against Robinson included text messages extracted from his cell phone. Those messages were obtained after the investigators asked Robinson for the passcode to the phone. That request, however, came after Robinson informed the investigators that he had an attorney and invoked his right to remain silent.
Robinson both consented to a search of the phone and provided the passcode after that invocation, and his defense counsel moved to suppress the contents of the phone at trial.
Now Robinson seeks to apply CAAF’s reasoning in Mitchell to the circumstances of his case.
• AFCCA decision (76 M.J. 663)
• Blog post: CCA opinion analysis
• Blog post: CAAF grants review in related case
• Blog post: CAAF grants review in this case
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) brief
• Appellant’s reply brief
• Amicus brief (supporting Robinson): Army Defense App. Div.
• Amicus brief (supporting Robinson): EFF, ACLU, ACLU of DC
• Blog post: Argument preview