U.S. v. Robinson, 77 M.J. 303

Core Criminal Law Subjects: Evidence: Search and Seizure › Consent

1. a request for a consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, requesting consent to search property in which a suspect has an interest is not prohibited by an accused’s prior request for counsel, because Edwards v. Arizona, 451 US 477 (1981), provides protection only as to interrogation
2. in this case, where an investigator asked appellant, a child sex abuse suspect who had been brought in for questioning and had invoked his right to counsel, for consent to search his cell phone, that inquiry fit squarely within the consent to search exception of Edwards v. Arizona, 451 US 477 (1981), and did not constitute a violation of appellant’s Fifth Amendment right against self-incrimination
3. in this case, where an investigator asked appellant, a child sex abuse suspect who had been brought in for questioning and had invoked his right to counsel, but who had later consented to a search of his cell phone, for the password to the phone, that inquiry was made for the sole purpose of effectuating the search to which appellant had just voluntarily consented to, did not rise to the level of a reinitiation of interrogation, fit squarely within the consent to search exception of Edwards v. Arizona, 451 US 477 (1981), and did not constitute a violation of appellant’s Fifth Amendment right against self-incrimination

Core Criminal Law Subjects: Evidence: Waiver

1. MRE 311(d)(2)(A) provides that 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, and 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; furthermore under this rule, failure to so move or object constitutes a waiver of the motion or objection; this rule unambiguously establishes that failure to object is waiver, and it is not a rule that uses the term waiver but actually means forfeiture
2. in this case, any objection that investigators had exceeded the scope of appellant’s consent to search his cell phone was waived and could not be raised as an issue on appeal, where at no time during appellant’s litigation of his motion to suppress at trial did he raise the issue of the scope of the search, but rather premised the motion on whether appellant’s consent was involuntary and whether the investigator’s request for the password violated MRE 304 and Article 31, UCMJ

Trial Stages: Appeals: Waiver

1. when there is a waiver of an issue, that issue is extinguished and may not be raised on appeal