The #7 Military Justice Story of 2018 is United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. 2018) (CAAFlog case page). One of two 2018 cases by the same name but with different appellants (this one from the Air Force, the other from the Army), in Robinson (AF) a majority of CAAF limited the reach of the court’s 2017 decision in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page), in which CAAF affirmed the suppression of the results of a cell phone search because military investigators pressed Mitchell to decrypt the device after Mitchell requested an attorney.

Mitchell was the #4 Military Justice Story of 2017, in part because of the attention the case received from outside of the military justice system. The Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU of the District of Columbia all supported Mitchell as amicus curiae. CAAF’s ultimate decision was split – with Chief Judge Stucky writing for a four-judge majority and Judge Ryan dissenting – and it was somewhat constrained by its application of strong language from Mil. R. Evid. 305(c)(2) that prohibits admission of evidence obtained by interrogation after a suspect requests an attorney. But Chief Judge Stucky’s majority opinion was also grounded in broad Constitutional themes, explaining that CAAF was “enforcing the prophylactic Miranda [v. Arizona] right to counsel, and the second layer of prophylaxis established in Edwards [v. Arizona], both of which are constitutionally grounded measures taken to protect the core Fifth Amendment privilege.” 76 M.J. at 419 (marks and citations omitted).

But those prophylactic measures reached their limit in Robinson (AF).

Judge Ohlson wrote for a four-judge majority – with Chief Judge Stucky dissenting – and found no error in military investigators asking Robinson for the passcode to his phone after Robinson informed the investigators that he had an attorney and invoked his right to remain silent. The facts of Robinson are very similar to those of Mitchell, with an exception: in Mitchell the investigators were executing a search authorization (the military substitute for a warrant), but in Robinson the investigators were exploiting Robinson’s consent to a search of the device. Requesting consent to a search is an exception to the no-questioning-after-invocation rule from Edwards, and a majority of CAAF found that exception to be an important distinction:

The facts of Mitchell are distinguishable from Appellant’s case, primarily because Mitchell involved a search authorization of the accused’s cell phone rather than a voluntary consent to search, as here.

77 M.J. at 306 n.4 (citations omitted). Chief Judge Stucky, however, found no meaningful distinction between the facts of Robinson and those of Mitchell (noting that the court’s analysis in Mitchell “focused on whether the accused was in custody and subject to interrogation,” 77 M.J. at 307-308, and Robinson also involved a custodial interrogation).

Robinson is a big limitation on Mitchell, earning it this spot on the Top Ten list.

2 Responses to “Top Ten Military Justice Stories of 2018 – #7: United States v. Robinson (AF)”

  1. David A. says:

    I doubt Robinson knew which side of the split hair he stood on.

  2. fisch says:

    I sometimes wonder if Chief Judge Stucky knew which side of the split hair he stood when he authored the majority opinion in Mitchell
    So, if you are in custody, lawyer up, and are presented with a search warrant to seize your phone wherein the agent asks you the passcode, then this is a violation of the Fifth amendment and MRE 305, and if you tell the agent the pass code where they find evidence that incriminates you on your phone, then it shall be suppressed.  US v. Mitchell.
    But, if you are in custody, lawyer up, and are asked for consent to possess and look through the phone, to which, without a lawyer being provided, you agree, then asking for a pass code is not a violation of the Fifth Amendment and MRE 305, and if you tell the agent the passcode where they find evidence that incriminates you on your phone, then it shall not be suppressed.  US v. Robinson.
    It would have been a lot easier if they would have determined in Mitchell that providing an agent with your passcode is testimonial and compelled.