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. Read more »
CAAF added two new cases to its master docket yesterday, one a certification from the Judge Advocate General of the Navy, and the other a grant.
First, the certified case:
No. 18-0282/NA. United States, Appellant v. Paul E. Cooper, Appellee. CCA 201500039. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
DID THE LOWER COURT ERR NOT FINDING WAIVER OF THE RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL WHERE APPELLEE WAS ADVISED OF HIS RIGHT TO REQUEST AN INDIVIDUAL MILITARY COUNSEL, AGREED HE UNDERSTOOD THE RIGHT BUT WANTED INSTEAD TO BE REPRESENTED BY TRIAL DEFENSE COUNSEL, AND MADE NO MOTION FOR INDIVIDUAL MILITARY COUNSEL?
DID THE LOWER COURT ERR IN NOT APPLYING THE STRICKLAND INEFFECTIVE ASSISTANCE TEST WHERE THE GOVERNMENT AND TRIAL JUDGE PLAYED NO PART IN THE DEFENSE’S FAILURE TO REQUEST INDIVIDUAL MILITARY COUNSEL, AND IF SO, DID APPELLEE SUFFER INEFFECTIVE ASSISTANCE OF COUNSEL?
IF STRICKLAND DOES NOT APPLY, DID THE LOWER COURT CORRECTLY FIND APPELLEE WAS DEPRIVED OF HIS STATUTORY RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL?
DID THE LOWER COURT ERR IN IT’S PREJUDICE ANALYSIS FOR APPELLEE’S ASSERTED DEPRIVATION OF HIS STATUTORY RIGHT TO INDIVIDUAL MILITARY COUNSEL WHEN APPELLEE DID NOT PRESERVE THE ISSUE AT TRIAL, RAISED THE ISSUE FOR THE FIRST TIME ON APPEAL, AND HAS ALLEGED NO SPECIFIC PREJUDICE?
The Navy-Marine Corps CCA’s decision is available here. The CCA concluded:
In this case we find that a member of an agent of the government—RLSO SE—frustrated the appellant’s right to legal advice early in the case. We find formation of an attorney-client relationship regarding the facts of this case in direct response to that frustration. And finally, we find deprivation of representation by that attorney, with whom the relationship was shared, through no fault of the appellant. The facts of this case lead us to conclude the appellant suffered material prejudice when his IMC request for CPT T.N. was never drafted and forwarded to CPT T.N.’s chain of command for consideration and possible approval.
Slip op. at 23. For the waiver issue, the CCA found:
To the extent the appellant waived his right to request CPT T.N. as an IMC, he relied on an erroneous representation of CPT T.N.’s unavailability.
Slip op. at 19.
Next, the granted case:
No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the petition is granted on the following 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.
Briefs will be filed under Rule 25.
The Army CCA’s decision is available here and explains that:
Appellant argues that he withdrew his wife’s third-party consent, which begs the question: can one individual withdraw another person’s consent, at least where he has a greater property interest in the evidence being searched? This appears to be a matter of first impression in this court.
Slip op. at 5. The CCA did “not extinguish the possibility that there may exist a situation in which a review of
the totality of the circumstances may allow for withdrawal of third-party consent to search personal property,” slip op. at 6, but the court concluded that the appellant did not actually withdraw consent (and also that the inevitable discovery doctrine applies).