Argument Preview: If the inevitable discovery doctrine does not apply, then CAAF must grapple with third-party revocation of consent to search in United States v. Eugene
CAAF will hear oral argument in the Army case of United States v. Eugene, No. 18-0209/AR (CAAFlog case page), on Wednesday, September 12, 2018, at 3 p.m., at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York. The court granted review of two issues involving consent to a search:
I. Whether Appellant’s request to Criminal Investigation Command (CID) that his cell phone be returned was a withdrawal of the third party consent to search given by Appellant’s wife in Appellant’s absence.
II. Whether the Army Court erred in determining the applicability of the inevitable discovery doctrine where (1) the CID agents failed to take any steps to obtain a warrant and (2) the case took a “dead-end” until the warrantless search.
A general court-martial composed of a military judge alone convicted Private First Class (E-3) Eugene, contrary to his pleas of not guilty, of two specifications of attempted viewing of child pornography and four specifications of attempted sexual abuse of a child, all in violation of Article 80, UCMJ. The military judge sentenced Eugene to confinement for 26 months, reduction to E-1, and a dishonorable discharge.
The convictions were based on evidence discovered on Eugene’s cell phone by his wife. Eugene allowed his wife to use his phone, and he left the device with her while he was away conducting field exercises on June 1, 2015. On June 2, 2015, Eugene’s wife used the device and discovered communications between Eugene and other women, some of whom identified themselves as minors. Eugene’s wife then contacted military authorities and authorized them to seize and search the phone. Military investigators conducted a limited, electronic search of the device, but found no evidence. Three days later, on June 5, 2015, they interrogated Eugene and he admitted to exchanging communications with underage girls. At the end of the interrogation, Eugene asked the investigators to return his phone but they did not return it. Instead, military investigators sent the phone for a more detailed electronic search. That search occurred five months later, on November 9, 2015, and yielded incriminating evidence. At no point, however, did the investigators obtain a military search authorization or a civilian search warrant.
Eugene’s defense counsel moved to suppress the fruits of the second search at trial, arguing that the investigators were required to obtain an authorization or warrant. The military judge denied the motion, ruling that Eugene’s wife consented to both the seizure of the phone and its subsequent search, and that Eugene’s request that the phone be returned was at most only a revocation of his wife’s consent to seize the phone. The Army CCA affirmed, finding that Eugene’s request that investigators return his phone was “merely an attempt to regain control over his personal property for personal convenience.” United States v. Eugene, No. 20160483, slip op. at 6 (A. Ct. Crim. App. Feb. 28, 2018). The CCA also found that the inevitable discovery doctrine applies because there was “overwhelming probable cause” and the lead investigator “would have contacted a military magistrate to get a search authorization if he believed he did not have consent.” Id. slip op. at 8.
CAAF then granted review of both of the CCA’s findings.
Eugene’s brief begins by parsing the reasoning of CAAF’s decision in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016) (CAAFlog case page). That case received an honorable mention in our Top Ten Military Justice Stories of 2016 because CAAF rejected an intuitive link between child enticement and possession of child pornography as sufficient to establish probable cause for a search. But Hoffmann also involved an issue of withdrawn consent, as that appellant initially consented to the seizure of his property but then withdrew that consent before military investigators removed the items from the room. Eugene’s brief explains that Hoffmann stands for the proposition that:
if consent is withdrawn before an item is seized, then a subsequent warrantless seizure of that item is a Fourth Amendment violation. However, Hoffman[n] does not stand for the inverse proposition: that if consent is withdrawn after an item is seized, then the subsequent continued seizure and subsequent search of the item is not a Fourth Amendment violation. To conclude that consent to seize cannot be withdrawn after an item has been seized – as the military judge and Army Court erroneously did in this case – is contradictory to the plain language of Mil. R. Evid. 314 and 316 and this Court’s decision in Dease that consent can be withdrawn at any time provided that the search has not occurred.
App. Br. at 13. Put differently, Eugene’s brief argues that his request that the phone be returned was a revocation of consent to seize that required the phone be returned (absent an authorization or warrant). It analogizes his cell phone to the urine sample in United States v. Dease, 71 M.J. 116 (C.A.A.F. May 1, 2012) (CAAFlog case page), an interlocutory case in which CAAF affirmed the suppression of a urinalysis where the consent to analyze the sample was explicitly withdrawn after the sample was provided. See App. Br. at 14-15. But unlike the accused in Dease, Eugene did not explicitly withdraw consent to the search of his phone. So his brief also argues that his request for the phone’s return amounted to a withdrawal of consent, when viewed through the eyes of a typical reasonable person., because:
Here, appellant was a twenty-two-year-old, recently-enlisted, private first class (E-3), who spoke English as a second language. (JA 204, 214). While it is true that search and seizure are separate legal concepts, the typical reasonable person would not expect appellant to know the legal difference between the two words, especially when the CID agents themselves repeatedly conflated the two terms. (See JA 088-116).
In sum, when appellant requested the return of his cell phone, the plain and unequivocal message was that agents return his cell phone and thereby stop any police activities associated with it.
App. Br. at 21.
The Army Appellate Government Division’s response suggests that any revocation of consent must be unambiguous:
“‘Withdrawal of consent need not be effectuated through particular ‘magic words,’ but an intent to withdraw consent must be made by unequivocal act or statement.’” United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005) (quoting United States v. Gray, 369 F.3d 1024, 1026 (8th Cir. 2004). “‘Conduct withdrawing consent must be an act clearly inconsistent with the apparent consent to search, an unambiguous statement challenging the officer’s authority to conduct the search, or some combination of both.’” Id. (quoting Burton v. United States, 657 A.2d 741, 746-47 (D.C. App. 1994). In order to withdraw consent, there must be “some communication understandable to those conducting the search that the consent has been withdrawn.” United States v. Coleman, 14 M.J. 1014, 1016 (C.M.A. 1982).
Gov’t Div. Br. at 9. I’m not sure that CAAF has required such clarity in the revocation of consent, but it has gotten close. See United States v. Stoecker, 17 M.J. 158, 162 (C.M.A. 1984) (“After receiving formal written consent to make a search, a policeman is entitled to clear notice that this consent has been withdrawn.”)
Yet the Government Division’s brief makes an even broader argument; it claims that Eugene could not revoke the consent previously granted by his wife:
Even if this court is inclined to find that appellant unequivocally revoked his wife’s consent, the court should still deny appellant relief because appellant could not revoke his wife’s consent to seize and search the phone. Military Rule of Evidence 314 governs consent searches and their revocation in the military. The plain language of the rule does not allow an appellant non-contemporaneous revocation of third party consent.
Gov’t Div. Br. at 13-14. And indeed, the plain language of the rule doesn’t address third-party revocation at all. Rather, Mil. R. Evid. 314(e)(3) merely states that:
Consent may be limited in any way by the person granting consent, including limitations in terms of time, place, or property, and may be withdrawn at any time.
(emphasis added). Read narrowly, the rule means that only the person who granted the consent can limit or revoke it.
Eugene’s reply brief, however, makes another analogy:
This case is analogous to that of a co-occupant of property arriving while law enforcement had begun, but not yet completed, searching the property. At that point, employing the Georgia v. Randolph rule, law enforcement would no longer have consent and would need a warrant to continue. Anything they searched or seized with the co-occupant’s consent would be admissible, and any further search of the property would require a warrant. That is precisely what should have happened in this case. Here, however, the lawful search that occurred prior to the revocation was not relied upon by the government at trial, (JA 173, 176), and a warrant was neither sought nor obtained for the subsequent searches that revealed incriminating information.
Reply Br. at 5.
The Government Division’s brief also presents a strong argument for application of the inevitable discovery doctrine, explaining that:;
The CID agents had overwhelming probable cause to search the phone. Mrs. Eugene made a statement to CID that appellant had been communicating by phone with someone who was fourteen years old and someone who was sixteen years old. (JA 58, 242). These conversations were sexual in nature and Mrs. Eugene told CID that the photos and videos she discovered included naked images of minors and “masturbation videos.” (JA 58, 243). Special Agent Nations testified that had he not obtained consent to search the phone, he would have sought authorization from a military magistrate in order to seize and search the phone. (JA 90). Had appellant told SA Nations appellant did not grant his wife consent to use the phone, SA Nations would have obtained a warrant from a military magistrate. (JA 112). Had appellant asked for his phone back, SA Nations would have contacted a military magistrate. (JA 113). When the alleged illegality occurred, the investigators “possessed. . . evidence or leads that would have inevitably led to the discovery of the evidence and the evidence would inevitably have been discovered in a lawful manner had not the illegality occurred.” Hoffmann, 120 M.J. at 125.
Gov’t Div. Br. at 23-24.
But Eugene’s reply brief highlights a strange notation in the investigative case notes:
On June 16, 2015 at 1200, 11 days after appellant revoked consent, SA Tsuno typed:
Case file reassigned to SA Tsuno. SA Nations briefed SA Tsuno on the investigation. The investigation requires the following actions:
Draft of DoD IG Subpoena request.
Obtain consent from PFC Eugene to search his cell phone.
Reply brief at 9 (emphasis in original). Why, posits Eugene’s briefs, would the investigator have written a case note about getting consent to search if they already had consent from Eugene’s wife.
This case seems like an easy application of inevitable discovery, but for that note. The Government Division may manage to convince CAAF that the note is meaningless, but if it doesn’t then the court will likely be forced to address whether a third-party can revoke consent to search and how vague that withdrawal can be to still be effective.