CAAF decided the Air Force case of United States v. Robinson, 77 M.J. 303, No.17-0504/AF (CAAFlog case page) (link to slip op.), on Monday, March 26, 2018. One of two cases by the same name (but with different appellants) decided today, in this case a majority of the court finds no constitutional violation in military investigators requesting a device passcode from a suspect who consented to a search of the device after invoking his right to remain silent and requesting an attorney, affirming the published decision of the Air Force CCA.

Judge Ohlson writes for the court joined by all but Chief Judge Stucky, who dissents.

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.

At trial, Robinson’s defense counsel moved to suppress the text messages on the basis that Robinson’s consent to search and his disclosure of the passcode were both involuntary. The military judge denied the motion and the Air Force CCA affirmed in a published decision (76 M.J. 663) (analyzed here). The CCA also rejected a claim that the search of the device exceeded the scope of the consent, finding that the failure to raise the issue at trial waived it. CAAF then granted review of two issues:

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.

In today’s opinion Judge Ohlson and the majority reject application of Mitchell by distinguishing the facts of this case from the facts of Mitchell. Judge Ohlson also explains that waiver applies to the scope issue raised for the first time on appeal based on the wording of the applicable Military Rule of Evidence and CAAF’s precedent interpreting that rule.

Chief Judge Stucky, however, dissents from the court’s resolution of the first issue. The Chief Judge – who authored the court’s opinion in Mitchell – finds this case indistinguishable from Mitchell, and he would not reach the second issue.

The majority’s constitutional analysis is short and to the point:

[I]t is clear that when the investigator asked Appellant for consent to search his cell phone, that inquiry fit squarely within the consent to search exception of Edwards. Cf. United States v. Hutchins, 72 M.J. 294, 296–98 (C.A.A.F. 2013) [(CAAFlog case page)] (recognizing that under the particular circumstances of the case, a request by law enforcement for consent to search after the accused had invoked his right to counsel constituted a reinitiation of communication in  violation of Edwards). Moreover, we conclude that when the investigator shortly thereafter asked Appellant for the passcode to that cell phone for the sole purpose of effectuating the search that he had just voluntarily consented to, that second inquiry was merely a natural and logical extension of the first permissible inquiry. Thus, because of its nature, purpose, and scope, this second inquiry similarly did not rise to the level of a reinitiation of interrogation. Accordingly, we hold that the second inquiry also fit squarely within the consent to search exception of Edwards and did not constitute a violation of the accused’s Fifth Amendment right against self-incrimination.

Because Appellant voluntarily consented to providing his passcode to investigators, we hold that the military judge did not abuse his discretion in denying the defense motion to suppress the evidence obtained from Appellant’s cell phone.

Slip op. at 6-7.

A footnote rejects application of Mitchell:

We reject Appellant’s argument that United States v. Mitchell, 76 M.J. 413 (C.A.A.F. 2017), governs the instant case. The facts of Mitchell are distinguishable from Appellant’s case, primarily because Mitchell involved a search authorization of the accused’s cell phone, id. at 416, rather than a voluntary consent to search, as here. See id. at 415 (“We address today the Fifth Amendment limits on asking a suspect to unlock his phone when the device has been seized pursuant to a valid search and seizure authorization.” (emphasis added)). Rather, our decisions in Frazier and Burns are directly applicable to this case.

Slip op. at 6 n.4 (emphasis added). This decision is a huge limitation on the reach of Mitchell.

Chief Judge Stucky, however, dissents:

The majority distinguishes Mitchell on the ground that Mitchell involved a valid search and seizure authorization rather than a consent to search. I find this distinction to be unpersuasive. Our decision in Mitchell did not turn on the nature of the search. Instead, our analysis focused on whether the accused was in custody and subject to interrogation. Having found both, we deemed the contents of the accused’s phone inadmissible. Id. at 415.

Diss. op. at 1. It is a pointed dissent, but a lonely one.

The majority then addresses the CCA’s finding that the failure of Robinson’s defense counsel to move to suppress on the basis that the search exceeded the scope of the consent waived any error. Mil. R. Evid. 311 applies to this issue and is a uniquely-military rule that “express[es] the manner in which the Fourth Amendment to the Constitution of the United States applies to trials by court-martial.” Manual for Courts-Martial (2016 ed.), Appendix 22 at 19 (analysis of Mil. R. Evid. 311). Unlike most of the other Mil. R. Evid., Rule 311 (along with the rest of Section III of the Mil. R. Evid.) is not drawn from an equivalent Federal Rule of Evidence, but is a partial codification of common law and precedent. Article III of the Federal rules, by comparison, contains Presumptions in Civil Cases.

Judge Ohlson explains that under Mil. R. Evid. 311(d)(2)(A):

When evidence has been disclosed prior to arraignment . . ., the defense must make any motion to suppress or objection under this rule prior to submission of a plea. In the absence of such a motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the motion or objection.

Slip op. at 7 (quoting Mil. R. Evid. 311(d)(2)(A)) (marks and emphasis in original). Citing to last term’s decision in United States v. Ahern, 76 M.J. 194 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page), Judge Ohlson explains that:

The rule unambiguously establishes that failure to object is waiver, and it is not a rule that uses the term “waiver” but actually means “forfeiture.”

Slip op. at 7. But a footnote provides what I think is a better explanation:

We note that the issue of waiver under M.R.E. 311(d)(2) was previously reached. United States v. Stringer, 37 M.J. 120, 125 (C.M.A. 1993) (“In view of the absence of a particularized objection at trial … we will consider the issue waived.”); see also id. at 132 (Wiss, J., concurring in the result) (finding that waiver “makes good sense” under M.R.E. 311(d) when defense counsel’s objection to issues other than that raised on appeal prevented appellate issue from being litigated at trial and may have precluded prosecution from submitting evidence which would have clarified matter).

Slip op. at 7 n.6. Put differently, stare decisis applies. Just as it did with the rule at issue in Ahern.

Errors are either preserved (by timely objection), forfeited (by the failure to object), or waived (meaning intentionally relinquished). The Rules for Courts-Martial and the Military Rules of Evidence contain many references to waiver but they do not use the word forfeiture (though they will – in some places – when the 2018 amendments take effect on January 1, 2019). Since the mere failure to object is normally forfeiture, and not waiver, many uses of the word waiver in the rules applicable to courts-martial have long been read to mean forfeiture (a reading I argued is correct – for many reasons – in Burris). But not so for Mil. R. Evid. 311(d)(2). Rather, in cases like Stringer (cited by Judge Ohlson) and United States v. Jameson, 65 M.J. 160, 162 (C.A.A.F. 2007), CAAF held that the use of the word waiver in this context actually means waiver. And I can’t find a case that holds the opposite.

But waiver mania was the #3 Military Justice Story of 2017, so I’m going to take this analysis one step further and consider the exception not raised in this case or addressed by Judge Ohlson:

the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown.

Mil. R. Evid. 311(d)(2)(A) (2016 ed.) (same in 2019 ed.) (same in 1984 ed.) (same as originally promulgated by Exec. Order 12198 of March 12, 1980, 45 Fed. Reg. 16932, 16948) (emphasis added).

This exception is important because while there is no equivalent to Mil. R. Evid. 311 in the Federal rules, there is an equivalent to the exception for good cause:

Consequences of not making a timely motion under Rule 12(b)(3). If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause.

Fed. R. Crim. Proc. R. 12(c)(3). The wrinkle, of course, is that Mil. R. Evid. 311(d)(2)(A) refers to a military judge while Fed. R. Crim. Proc. R. 12(c)(3) refers to a court, but the difference is almost certainly semantic (presumably, for example, the rule was intended to apply equally to a court-martial without a military judge).

Nevertheless, Robinson’s appellate defense counsel didn’t offer any good cause for the failure to seek suppression on the basis that the search exceeded the scope of the consent. Rather, Robinson’s briefs to CAAF asserted that the scope issue was raised by the other bases for suppression. CAAF rejects that assertion, and Judge Ohlson’s citation to Judge Wiss’ concurring opinion in Stringer suggests that the majority finds this case to involve “actions of trial defense counsel which leave appellate tribunals with insufficient factual development of an issue necessary to resolve a question of law raised on appeal.” United States v. Graves, 50 C.M.R. 393, 396 (C.M.A. 1975) (discussing “the passive waiver concept”). Accordingly, waiver applies.

Case Links:
• 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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

2 Responses to “Opinion Analysis: A request for a device passcode after the suspect consents to a search of the device (but also requested an attorney) does not violate the right against self-incrimination, in United States v. Robinson (AF)”

  1. k fischer says:

    The rule unambiguously establishes that failure to object is waiver, and it is not a rule that uses the term “waiver” but actually means “forfeiture.” See United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (holding that failure to object constituted waiver under M.R.E. 304 (f)(1)).

    US v. Robinson, slip opinion at 7
    So, does this holding on Issue II of Robinson leave any doubt how CAAF is going to view the waiver issue in Burris?  I guess CAAF is following Congress and is no longer taking a paternalistic approach to ensuring that the Accused receives a fair trial, as commented on by Judge Stucky during the Appellant’s argument in Burris.  And it is troubling that there has been a complete paradigm shift in the UCMJ, the R.C.M., and stari decisis solely because of one specific crime. 
    But, with regards to the interrogation issue, somehow the consent to search has been conflated to change an interrogation recognized in Mitchell to a non-interrogation after an Accused invokes his right to counsel.

  2. Zachary D Spilman says:

    And it is troubling that there has been a complete paradigm shift in the UCMJ, the R.C.M., and stari decisis solely because of one specific crime.

    Quite the opposite, actually. Stare decisis says the failure to object on this basis is waiver, just as it was in Ahern

    That’s not true, however, for the rules at issue in Burris and its trailers. R.C.M. 905(e) and 919(c) have long been interpreted as rules of forfeiture, not waiver. That history – and the reasoning behind it (and why it’s correct) – is detailed in my primary brief in Burris (available here). 

    Moreover, not only did the Army Government Appellate Division agree that forfeiture applies in Burris (and no other division filed an amicus brief, so the unambiguous position of the United States is that forfeiture applies), but the President recently rewrote the rules to explicitly state that forfeiture applies beginning on January 1, 2019. 

    CAAF could, of course, nevertheless reverse a quarter-century of precedent to retroactively change rules with an opinion in Burris that will be abrogated in 280 days (from today) by the President’s action, but that would be silly. And unjust to the appellants whose cases were tried at a time when the rule was settled. And contrary to the position of the parties. All of which I addressed during oral argument.

    In the end, the problem is that the MCM uses the word waiver to mean forfeiture. That’s both bad and easy to fix. Well, relatively easy.