CAAF decided the Army case of United States v. Eugene, 78 M.J. __, No. 18-0209/AR (CAAFlog case page) (link to slip op.), on Monday, October 29, 2018. With a short opinion, CAAF holds that the question of whether an accused revoked consent to a search is a question of fact, not a question of law. Then, considering the deference generally afforded to a military judge’s factual findings, CAAF finds no error in the military judge’s finding that Eugene did not revoke the consent his wife gave to law enforcement to search Eugene’s phone. CAAF affirms the findings, sentence, and the decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of two issues:

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.

CAAF answers the first issue in the negative and does not reach the second issue.

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 “voluntarily gave his wife,
BE, his cell phone,” and “he did not place any restrictions on BE’s use of the phone.” Slip op. at 2. While using the phone, BE “discovered that her husband had exchanged messages, nude photos, and videos with a number of other women, some of whom BE suspected were underage.” Slip op. at 2. BE reported what she saw to military authorities, turned over the phone, and gave written consent for military investigators to search the phone.

A few days later Eugene was questioned and he confessed. Then, “at the conclusion of the interview, [Eugene] asked that his cell phone be returned.” Slip op. at 3. His request was denied and, months later, the phone was forensically analyzed and incriminating evidence was discovered. Eugene moved to suppress the results of the analysis at trial, asserting that he had withdrawn his wife’s consent to the search of the phone when he asked for it to be returned. “The military judge denied this motion, in relevant part, on the basis that [Eugene]’s request that his phone be returned constituted an attempted withdrawal of consent to seize, but did not amount to a withdrawal of consent to search.” Slip op. at 3.

CAAF affirms in light of “the deference we afford a military judge in reviewing his decision on a motion to suppress.” Slip op. at 1. Specifically, Chief Judge Stucky’s opinion for the court explains that:

We agree with the United States Court of Appeals for the Eighth Circuit that while “magic words” are not required to effectuate withdrawal of consent, an accused must make his intent clear through some unequivocal act or statement. United States v. Gray, 369 F.3d 1024, 1026 (8th Cir. 2004) (internal quotation marks omitted) (citation omitted).

In determining whether an accused adequately provided this required notice, we are mindful that this Court has recognized that “search” and “seizure” are separate concepts. United States v. Wallace, 66 M.J. 5, 8 (C.A.A.F. 2008). Revoking consent to one does not necessarily revoke consent to the other. Id. We agree with those federal circuit courts that have reviewed as a question of fact the issue of whether an accused revoked consent. See, e.g., United States v. Casellas-Toro, 807 F.3d 380, 390–91 (1st Cir. 2015); United States v. $304,980.00 in U.S. Currency, 732 F.3d 812, 820 (7th Cir. 2013). In the instant case, the military judge found that Appellant “never told SA Nations or anyone else in CID not to search his cell phone or that he refused consent to search his cell phone.” Instead, Appellant merely “asked … if he could have his cell phone back.” The military judge further found that “it appears the accused wanted the phone back, most likely so he could continue to use it.” The military judge then found that, “[a]t most, the accused’s request for the return of his cell phone implicated the seizure of the phone, not the search.”

This finding was not clearly erroneous, for it finds support in the record.

Slip op. at 4-5 (emphasis added). The holding that revocation of consent is a question of fact – rather than a question of law – is the key part of this decision, because of the standard of review.

CAAF reviews a military judge’s ruling on a motion to suppress under the deferential abuse of discretion standard: “A military judge abuses his discretion when his findings of fact are clearly erroneous or he misapprehends the law.” Slip op. at 4 (citation omitted). Applying that standard, an appellate court defers to the military judge’s findings of fact (unless they are unsupported by the record), but it conducts its own application of the law (a de novo review). Accordingly, whether a conclusion is one of fact or law can make all the difference on appeal.

By holding that the question of whether Eugene revoked consent is a question of fact, rather than a question of law, CAAF does not reach an independent conclusion about revocation of consent but rather it defers to the military judge’s finding unless that finding is clearly erroneous. In this case the finding is not so erroneous because it’s supported by the record: Eugene never told the investigators not to search the phone, he gave the investigators his email address and password, and when he testified during the suppression motion he said he told them only that “it’s my only phone and we are in the military, it is kind of hard not to have a phone. You miss a lot of appointments and stuff. It was my only phone.” Slip op. at 5 (marks omitted). That equivocation, Chief Judge Stucky explains, “cuts against the notion that Appellant unequivocally expressed disapproval of the search.” Slip op. at 5.

Case Links:
• ACCA decision
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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