CAAFlog » October 2018 Term » United States v. Smith

CAAF decided the Army case of United States v. Smith, 78 M.J. 325, No. 18-0211/AR (CAAFlog case page) (link to slip op.), on Friday, February 22, 2019. In a short, per curiam opinion, the court finds any error waived.

Warrant Officer One (W-1) Smith was convicted of two specifications of indecent recording in violation of Article 120c(a) (2012) and sentenced to confinement for two months and a dishonorable discharge. The allegations arose after a young woman saw Smith take a photograph under her dress using an iPhone. She sounded the alarm, Smith was quickly apprehended, and the iPhone was seized. Military investigators then sought authorization to search the iPhone and also to seize and search any other Apple product in Smith’s residence under the theory that the iPhone could synchronize with those products. The authorization was granted, several other devices were seized, and all of the devices were sent for examination. After some forensic wizardry, investigators discovered incriminating videos on the iPhone.

Smith’s defense counsel moved to suppress the videos at trial, arguing that the iPhone was unlawfully seized (at the time of the woman’s complaint) and that the search authorization of the iPhone was not supported by probable cause. The motion was denied, the videos were admitted, and Smith was convicted. Smith renewed the suppression issue on appeal, but asserted a new basis: that investigator unlawfully used the other devices to gain access to the contents of the iPhone. The Army CCA refused to consider Smith’s new argument because it wasn’t presented to the trial military judge, but the CCA also held that the good faith exception applied. CAAF then granted review of two issues:

I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

Those issue have complex wording but present two relatively-straightforward questions: First, whether the good faith exception to the warrant requirement applies (an issue more directly presented in a different case – United States v. Perkins, No. 18-0365/MC (CAAFlog case page) – that was argued on the same day as Smith). Second, whether waiver applies.

When an issue is waived there is no error to correct on appeal, and “waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right.” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (CAAFlog case page) (marks and citations omitted). Smith involved the possibility of waiver by operation of law because Mil. R. Evid. 312(d)(2)(A) requires a motion to suppress seized evidence to be made prior to entry of pleas and CAAF’s precedent states that such a motion must identify the particular reasons why the evidence should be suppressed (with unidentified reasons waived). That precedent includes an opinion from just 11 months ago, in United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page), in which CAAF applied waiver in an almost identical situation. Robinson’s trial defense counsel moved to suppress text messages seized from Robinson’s cell phone on the basis that Robinson’s consent to the seizure was involuntary, but then Robinson’s appellate defense counsel argued that the messages should have been suppressed because the seizure exceeded the scope of Robinson’s consent. Both the Air Force CCA and CAAF applied waiver to the basis raised on appeal, with Judge Ohlson writing that:

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).

Robinson, 77 M.J. at 307 n.6 (omission in original).

Nevertheless, in Smith the Army Government Appellate Division conceded that waiver does not apply. CAAF, however, rejects that concession:

In light of our unambiguous holding in Robinson, we reject the Government’s concession that “[w]here [an] appellant moves to suppress evidence under M.R.E. 311 but fails to articulate a possible ground upon which to suppress the evidence, this forfeits (but does not waive) the issue.” While the Government correctly notes that “this Court has found that there are instances where the plain language of a military rule for court-martial or rule of evidence reads ‘waiver’ but may be interpreted as ‘forfeiture,’ ” it somehow missed the fact that we have already decided that this is not one of those instances. Given the parties’ confusion, we take this opportunity today to reiterate that failure to object under M.R.E. 311 constitutes waiver, not forfeiture. Robinson, 77 M.J. at 307.

In the instant case, it is indisputable that Appellant failed to raise the use of his computer as a “key” to open his iPhone as a possible ground for suppression in either his written motion to suppress or at the suppression hearing. Appellant concedes this point. Thus, he waived the issue.

Slip op. at 2-3 (modifications in original).

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

Audio of today’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Smith, No. 18-0211/AR (CAAFlog case page): Oral argument audio.

United States v. Perkins, No. 18-0365/MC (CAAFlog case page): Oral argument audio.

The audio is also available here, on our oral argument audio podcast (announced here).

Note: For the podcast, I processed the audio of these arguments with a dynamic normalizer filter to boost the volume of the quiet segments of the argument. Put differently, I increased the volume to a consistently-loud level.

CAAF will hear oral argument in the Army case of United States v. Smith, No. 18-0211/AR (CAAFlog case page), on Tuesday, January 22, 2019, at 9:30 a.m. The first of two cases to be argued that day (both involving the good faith exception to the exclusionary rule), Smith involves an appellate-stage challenge to the admission of the fruits of a search of electronic devices.

CAAF granted review of two issues:

I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

Warrant Officer One (W01) Smith was convicted of two specifications of indecent recording in violation of Article 120c(a) (2012) and sentenced to confinement for two months and a dishonorable discharge. The allegations arose after a young woman saw Smith take a photograph under her dress using an iPhone. She sounded the alarm, Smith was quickly apprehended, and the iPhone was seized. Military investigators then sought authorization to search the iPhone and also to seize and search any other Apple product in Smith’s residence under the theory that the iPhone could synchronize with the other devices. The authorization was granted, several other devices were seized, and all of the devices were sent for examination.

The examination found no incriminating evidence on the devices seized from Smith’s home, and the examiners were initially unable to access the iPhone because it was locked. But because Smith previously synced his iPhone with one of his other devices, the investigators were able to use that prior connection to access the iPhone. After doing that, they discovered incriminating videos on the iPhone. Smith’s defense counsel moved to suppress the videos, arguing that the iPhone was unlawfully seized (at the time of the woman’s complaint) and that the search authorization of the iPhone was not supported by probable cause. The motion was overruled, the videos were admitted, and Smith was convicted.

On appeal, Smith renewed his objection to the admission of the videos, but with a new argument: that the search of the devices from his home – that made it possible to search the iPhone – lacked probable cause. The argument was based on CAAF’s opinion in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), part of the #7 Military Justice Story of 2017, and claimed an insufficient nexus between Smith’s phone and other devices. The Army CCA refused to consider Smith’s new argument and also concluded that the good faith exception applied (while noting that the military judge also determined that the inevitable discovery doctrine applied).

CAAF then granted review of two issues that embody a plethora of questions about the trial and appellate proceedings. The first issue presumes that the search of the devices seized from Smith’s home was unlawful (something no court has said), it presumes that the incriminating videos on Smith’s iPhone would never have been discovered but-for the search of the other devices (a question of technological capabilities), and it challenges the application of the good faith exception under the facts of this case. The second granted issue challenges the Army CCA’s refusal to consider Smith’s new suppression argument based on Nieto, and it suggests that the argument isn’t so much new as it is just a clarification of the trial stage objection that was not succinctly articulated.

It’s a complicated case that is made even more complicated by the briefs, because Smith offers a second new basis for suppression (that investigators exceeded the scope of the search authorization) and the Army Government Appellate Division makes numerous concessions.

Read more »

CAAF recently granted review in three cases.

The first is an Army case involving the good-faith exception to the warrant requirement (

No. 18-0211/AR. U.S. v. Graham H. Smith. CCA 20160150. 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 said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR TELEPHONE BECAUSE ACCESS TO THE CONTENTS OF THE IPHONE WOULD NOT HAVE BEEN AVAILABLE BUT FOR THE GOVERNMENT’S ILLEGAL SEARCH AND THE GOOD FAITH DOCTRINE WOULD BE INAPPLICABLE UNDER THE CIRCUMSTANCES

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN DEEMING THE INSUFFICIENT NEXUS ISSUE WAIVED BECAUSE THERE WAS NO DELIBERATE DECISION NOT TO PRESENT A GROUND FOR POTENTIAL RELIEF BUT INSTEAD ONLY A FAILURE TO SUCCINCTLY ARTICULATE THE GROUNDS UPON WHICH RELIEF WAS SOUGHT.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The second is also from the Army and involves a potential major change:

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. 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 said petition is hereby granted on the following issue:

WHETHER THE GOVERNMENT MADE MAJOR CHANGES TO THE TIME FRAME OF THREE OFFENSES, OVER DEFENSE OBJECTION, AND FAILED TO PREFER THEM ANEW IN ACCORDANCE WITH RULE FOR COURTS-MARTIAL 603.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The third is from the Air Force and involves the sufficiency of a conviction for wrongful possession of child pornography:

No. 18-0288/AF. U.S. v. Jeremiah L. King. CCA 39055. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

THE MILITARY JUDGE FOUND APPELLANT GUILTY OF VIEWING CHILD PORNOGRAPHY. BUT ALL OF THE ALLEGED CHILD PORNOGRAPHY APPELLANT ALLEGEDLY VIEWED WAS FOUND IN UNALLOCATED SPACE OR A GOOGLE CACHE. IS THE EVIDENCE LEGALLY SUFFICIENT?

Briefs will be filed under Rule 25.

The only opinion I can find on the Air Force CCA’s website is a merits decision from July 26, 2017, available here.