U.S. v. Eugene, 78 M.J. 132

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion when his findings of fact are clearly erroneous or he misapprehends the law
2. in this case, the military judge did not abuse his discretion when he found that appellant failed to revoke his wife’s consent to search his phone by asking a government agent if he could have his phone back, but did not request that his phone not be searched, thus concluding that appellant’s request that his phone be returned constituted an attempted withdrawal of consent to seize, but did not amount to a withdrawal of consent to search; this finding was not clearly erroneous where at no point did appellant tell the agent not to search his phone, and his request to have his phone returned came immediately after he willingly gave the agent his phone number, email address, user name, and password, and provided incriminating admissions

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

1. after receiving formal written consent to make a search, a policeman is entitled to clear notice that this consent has been withdrawn; in other words, there must be some communication understandable to those conducting the search that the consent has been withdrawn; while magic words are not required to effectuate withdrawal of consent, an accused must make his intent clear through some unequivocal act or statement
2. search and seizure are separate concepts; revoking consent to one does not necessarily revoke consent to the other
3. the issue of whether an accused revoked consent is a question of fact
4. in this case, the military judge did not abuse his discretion when he found that appellant failed to revoke his wife’s consent to search his phone by asking a government agent if he could have his phone back, but did not request that his phone not be searched, thus concluding that appellant’s request that his phone be returned constituted an attempted withdrawal of consent to seize, but did not amount to a withdrawal of consent to search; this finding was not clearly erroneous where at no point did appellant tell the agent not to search his phone, and his request to have his phone returned came immediately after he willingly gave the agent his phone number, email address, user name, and password, and provided incriminating admissions

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

1. an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion, viewing the evidence in the light most favorable to the prevailing party; a military judge abuses his discretion when his findings of fact are clearly erroneous or he misapprehends the law; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous