U.S. v. Brinkman- Coronel, 85 M.J. 431

First Principles: Constitutional Matters: Generally

1. an accused has a constitutional right to an impartial judge

Military Justice Personnel: Military Judge: Generally

1. there is a strong presumption that a military judge is impartial in the conduct of judicial proceedings

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. RCM 902 provides two bases for disqualification of a military judge; the first basis is a military judge's duty to disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned; the second basis involves the specific enumerated circumstances requiring disqualification under RCM 902(b)

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not abuse his discretion when he did not recuse himself from appellant's court-martial for the appearance of bias where the accused's offenses occurred during the judge's prior tenure as a special victim prosecutor because (1) the judge had already started the processing of transitioning to the bench when the offenses occurred and had sectioned himself off from investigations, (2) the judge stated that he had not worked on appellant's case in any capacity, and (3) the judge's supervisory prosecutorial position before joining the bench did not, without more, cause the knowledge and actions of his subordinates to be attributed to him
2. in this case, the military judge did not abuse his discretion when he denied appellant's motion to suppress evidence discovered from the search of appellant's vacuum phone where (1) appellant's husband had apparent authority to consent to the warrantless search of appellant's cell phone, (2) gave consent to law enforcement to take any action necessary to find appellant, and the phone could have contained clues as to appellant's travel or communications that could be used to help locate appellant, (3) the forensic analyst's search of appellant's vacuum phone was within the broad limits of the husband's consent to take any action necessary to find appellant, and (4) the apparent child pornography found on the phone was located in the same pane or next to the suicide videos that the analyst was authorized to view

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

1. the standard for assessing the validity of a search under the Fourth Amendment is reasonableness
2. just as people have the right to be secured in their persons, houses, papers and effects, pursuant to the Fourth Amendment, people also have a reasonable expectation of privacy in their cell phones

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

1. voluntary consent from an individual possessing authority over property in question provides an exception to the Fourth Amendment protections against warrantless search
2. a third party can consent when they share common authority over the property; the authority that justifies the third-party consent does not rest upon the law of property but rather on mutual use of the property by persons generally having joint access or control for most purposes
3. even if a third party does not possess the actual authority to consent, the search may still be lawful if law enforcement officials reasonably believed the third party could consent -- that they had apparent authority to consent; however, apparent authority only justifies a search if no facts tended to show that law enforcement agents should have reasonably known that the property was the exclusive property of someone other than the consenting third party
4. in this case, the husband's common authority over his and appellant's home gave him the apparent authority to consent to the warrantless search of the home, to include a phone within the home
5. unlike actual authority, apparent authority to consent to a warrantless search exists when the facts available to the law enforcement officer at the moment would lead a reasonable officer to believe that a party had actual authority
6. a search satisfies the Fourth Amendment, even though the person lacks the actual authority to consent, if the facts available to the officer at the moment would warrant a person of reasonable caution to believe that the consenting party had authority over the premises or effects
7. the scope of apparent authority depends on whether it was objectively unreasonable under the circumstances for law enforcement to believe that the consent extended to a particular container on the premises, and the container could reasonably hold the object of the search
8. while the scope of consent to search may be limited by the consenter, if consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization
9. absent evidence showing that an officer should have known the third party did not have the authority to consent, the search is reasonable
10. in this case, appellant's husband had apparent authority to consent to the warrantless search of appellant's cell phone that was hidden inside a vacuum cleaner in the home they shared; although appellant and the husband did not share a cell phone plan and the husband was not aware that the phone was different from appellant's primary phone, all that the law enforcement officer knew at time of the search was that the husband identified the location of the phone, had the passcodes necessary to access the phone, had instructed the officer to take any action necessary to find appellant, and the phone could have contained clues as to appellant's travel or communications that could be used to help locate appellant
11. the standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness
12. while the scope of consent can be limited by the consenter, if said consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization
13. in this case, the forensic analyst's search of appellant's vacuum phone was within the broad limits of appellant's husband's consent to take any action necessary to find appellant and thus did not violate the Fourth Amendment; the apparent child pornography was located in the same pane or next to the suicide videos that the analyst was authorized to view

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. cell phones may not be searched without probable cause and a warrant unless the search falls within one of the recognized exceptions to the warrant requirement

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. when reviewing a CCA's decision on a military judge's ruling, CAAF typically pierces through the intermediate level, examines the military judge's ruling, and decides whether the CCA was right or wrong in its examination of the military judge's ruling

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

1. an appellate court reviews a military judge's disqualification decision for an abuse of discretion; a military judge's ruling constitutes an abuse of discretion if it is arbitrary, fanciful, clearly unreasonable or clearly erroneous; an appellate court cannot find an abuse of discretion if it merely would reach a different conclusion
2. the appearance of bias of a military judge is judged objectively, and an appellate court considers any conduct that would lead a reasonable person knowing all the circumstances to the conclusion that the judge's impartiality might reasonably be questioned
3. when a military judge's impartiality is challenged on appeal, the test is whether, taken as a whole in the context of a trial, a court-martial's legality, fairness, and impartiality were put into doubt by the military judge's actions
4. an appellate court reviews a military judge's ruling on a motion to suppress evidence for an abuse of discretion
5. when reviewing a military judge's denial of a motion to suppress for an abuse of discretion, an appellate court views the evidence in the light most favorable to the prevailing party