U.S. v. Mitchell, 76 M.J. 413

First Principles: Constitutional Matters: Confessions

1. the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself

First Principles: Constitutional Matters: Right to Counsel

1. because the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege
2. once a suspect in custody has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication
3. in every case involving Edwards (451 US 477 (1981)), the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress
4. Edwards (451 US 477 (1981)) clearly applies to the military

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Self-incrimination

1. the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself
2. because the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege
3. once a suspect in custody has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication
4. in every case involving Edwards (451 US 477 (1981)), the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress
5. Edwards (451 US 477 (1981)) clearly applies to the military
6. under the circumstances presented in this case, the accused’s Fifth Amendment right against self-incrimination, as protected by Miranda (384 US 436 (1966)), and Edwards (451 US 477 (1981)), was violated by government agents who asked him, in the absence of counsel, to unlock his iPhone when the device had been seized pursuant to a valid search and seizure authorization; at the time of the questioning, the accused was in custody and had previously invoked his right to counsel; when the agents asked him to enter his passcode, they were not merely requesting consent to search, but rather were asking him to provide privileged incriminating information; as such, pursuant to the plain language of MRE 305(c)(2), the contents of the phone had to be suppressed
7. two discrete inquiries are essential to the determination of whether an accused is in custody for the purposes of Miranda (384 US 436 (1966)), and Edwards (451 US 477 (1981)): first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave; the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest; courts evaluate: (1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred; (3) the length of the questioning; (4) the number of law enforcement officers present at the scene; and (5) the degree of physical restraint placed upon the suspect
8. interrogation of a suspect includes not only express questioning, but also any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect
9. government agents asking the accused to state his passcode involved more than a mere consent to search; they asked the accused to provide the government with the passcode itself, which is incriminating information in the Fifth Amendment sense, and thus privileged; the privilege not only extends to answers that would in themselves support a conviction but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute; without the benefit of counsel that he had requested, subjecting the accused to a custodial interrogation endangered his Fifth Amendment privilege against self-incrimination and violated the protective rule created in Edwards (451 US 477 (1981)); because Edwards forbids interrogation following the invocation of the Miranda (384 US 436 (1966)) right to counsel, not just interrogation that succeeds, it follows that those who seek Edwards protection do not need to establish that the interrogation produced or sought a testimonial statement in order to establish a violation; rather, only interrogation itself must be established, and the accused has demonstrated that entry of his passcode was an incriminating response that the government should have known they were reasonably likely to elicit; once an Edwards violation has been established, whether the incriminating response or derivative evidence will be suppressed is a question of remedy, not wrong
10. under the plain language of the MRE 305(c)(2), any evidence derived from a violation of Edwards (451 US 477 (1981)) must be suppressed: if a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation; and the MREs expressly provide that an individual may claim the most favorable privilege provided by the Fifth Amendment to the United States Constitution, Article 31, or these rules
11. although the contents of the accused’s iPhone were inadmissible due to the Edwards (451 US 477 (1981)) violation, the phone itself should not have been suppressed because it was seized pursuant to lawful authorization prior to the Edwards violation, or any other alleged Fifth Amendment violation; the phone did not constitute evidence derived from the illicit interrogation, and the possibility that a court-martial panel could impermissibly review the phone’s contents could be overcome with an instruction forbidding such use

Core Criminal Law Subjects: Evidence: Search and Seizure › Inevitable discovery

1. for the inevitable discovery exception to apply to warrant the admission of unlawfully obtained evidence, the government must demonstrate by a preponderance of the evidence that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence in a lawful manner

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. these standards apply to interlocutory appeals under Article 62, UCMJ: an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and consider the evidence in the light most favorable to the party that prevailed at trial, and a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and consider the evidence in the light most favorable to the party that prevailed at trial
2. a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect
3. two discrete inquiries are essential to the determination of whether an accused is in custody for the purposes of Miranda (384 US 436 (1966)), and Edwards (451 US 477 (1981)): first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave; the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest; courts evaluate: (1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred; (3) the length of the questioning; (4) the number of law enforcement officers present at the scene; and (5) the degree of physical restraint placed upon the suspect
4. for the inevitable discovery exception to apply to warrant the admission of unlawfully obtained evidence, the government must demonstrate by a preponderance of the evidence that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence in a lawful manner