                                                     CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL AP P EALS
                                                              Befo re
                                             M ULLIGA N, FEBBO, an d W OLFE
                                                 A p p ellat e M ilit ary Ju d g es

                                            UNITED STATES, Appe llant
                                                           v.
                                           Spe cialis t AVERY J. SUAREZ
                                           Unite d State s Army, Appe lle e

                                                  ARMY MISC 1 20170366

                                        Headquarters, Fort Bliss
                                    Michael J. Hargis, Militar y Judge
                             Colonel Charles C. Poché, Staff Judge Advocate

For Appellant: Captain Catharine M. Parnell, JA (argued); Lieutenant Colonel Eric
K. Stafford, JA; Major Michael E. Korte, JA; Captain Samuel E. Landes, JA;
Captain Catharine M. Parnell, JA (on brief); Colonel Tania M. Martin, JA;
Lieutenant Colonel Eric K. Stafford, JA; Captain Samuel E. Landes, JA (reply brief) .

For Appellee: Captain Joshua B. Fix, JA (argued); Lieutenant Colonel Christopher
D. Carrier, JA; Major Todd W. Simpson, JA; Captain Joshua B. Fix (on brief).


                                                       27 September 2017
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                             M EM ORA NDUM OPINION A ND A CTION ON A PPEA L
                                BY THE UNITED STA TES FILED PURSUA NT TO
                            A RTICLE 62, UNIFORM CODE OF M ILITA RY JUSTICE
                           -------------- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- ---

     Thi s o p i ni o n i s i ssued a s a n unp ub l i shed o p i ni o n a nd , a s such, d o es no t serve a s p reced ent .

WOLFE, Judge:

       In this case we consider an appeal by the United States , under Article 62,
Unifor m Code of Militar y Justice, 10 U.S.C. § 862 (2012 & Supp. IV 2017)
[hereinafter UCMJ]. The government claims that the militar y judge erred as a matter
of law when he suppressed the results of a search of the accused ’s cell phone. We
decline to address the merits of the government ’s arguments on appeal because we



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SUAREZ–ARMY MISC 20170366

find that the governme nt waived the underly ing issues at the trial court. We
therefore deny the governme nt’s appeal.

                                   BACKGROUND 2

       An internet company provided local police in Richland , Washingto n, with
informa tio n indicating that the accused was involved in child pornography offenses.
Upon receipt of an affidavit, a militar y magistrate authorized a search of the
accused’s phone. The scope or legality of the search authoriza tio n is not part of this
appeal.

       On 28 February 2017, an agent from the Army Crimina l Investigative
Command (CID) seized the accused ’s phone from his person pursuant to the
authorizatio n. The accused was placed in handcuffs and brought to the CID offices
at Fort Bliss and interrogated. The accused was read his rights in accordance with
United States v . Miranda, 384 U.S. 436 (1966), and Article 31(b), UCMJ. While the
accused initia lly waived his rights, he later invoked his right to consult with counsel.
The accused was released back to his unit.

        There are two versions of events claiming to explain when CID asked the
accused to provide his passcode to his phone to an investiga tor. The accused
testified that he was asked for his passcode before he was advised of his rights under
Article 31(b), UCMJ. However, an agent from CID testified that the day after the
intervie w, she sought out the accused to have him sign for personal property that
CID was returning to him. During this exchange of personal property she testified
that she asked the accused for the passcode to his phone.

       The militar y judge did not find it necessary to determine which version was
the more likely. This is because, and critically, neither party assert s that the accused
provided his passcode while being questioned after having waived his rights. Either
the question was asked pre- warning (claims the accused), or post- invocatio n of his
right to counsel (claims the governme nt).

       A search of the accused’s phone revealed six images which the governme nt
alleges are child pornography. The accused moved to suppress his statement to CID
revealing the passcode to his phone and the images that were subsequently
discovered. The militar y judge granted the motion and the governme nt appeals.


2 We adopt the factual findings of the militar y judge as they are not clearly
erroneous. See United States v . Bak er, 70 M.J. 283, 287 (C.A.A.F. 2011).

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                              LAW AND DISCUSSION

      The government makes numerous arguments as to why the milita r y judge erred.
      First, the governme nt argues requesting a passcode is similar to requesting
consent to search, which the Supreme Court has found is not an interrogatio n.
Fisher v . United States, 425 U.S. 391, 397 (1976).

       Second, the government argues the request for the passcode was not a
“communica tive act” because in this case it did not amount to “an admissio n to the
ownership and control of materials sought by the governme nt. ” That is, as the phone
already had been identified through business records and seized from the accused ’s
person, ownership of the phone was a “foregone conclusio n. ” See Id. at 411.

        Third, the governme nt argues that assuming the accused was asked to provide
his passcode after he had been release d from custody, there was no Edwards
violatio n because, again, the question was not an interrogatio n and the accused ’s
answer was not testimonia l. See Edwards v . Arizona, 451 U.S. 477 (1981).

       Fourth, the governme nt argues that Edwards violatio ns do not require the
exclusio n of derivative evidence. Here, the governme nt asks us to focus on the
constitutio na l answer to this question and not focus on the exclusio nar y rule
contained in the Militar y Rules of Evidence.

       Fifth, the government initia lly claimed that the militar y judge erred because
the evidence would have been inevitab ly discovered. At oral argument the
government conceded that this argument was conclusive ly resolved in the accused’s
favor by the United States Court of Appeals for the Armed Forces’ decision in
United States v . Mitchell, __ M.J. __, 2017 CAAF LEXIS 856 (C.A.A.F. 2017).

        We do not address the merits of the government’s arguments. Mitchell
explicitly did not resolve whether asking for a passcode is testimonia l. Id. at *12
(“We thus do not address whether Appellee’s delivery of his passcode was
‘testimonia l’ or ‘compelled . . . .’”). We also leave this question unanswered.

       It is also unclear, whether Mitchell dispatched the foregone conclusio n
doctrine as a general matter or just based on the facts of that particular case. See
Fisher, 425 U.S. at 411 (articulating the foregone conclusio n doctrine such that the
Fifth Amendment does not protect an act of production when any potent ially
testimonia l component of the act of production—such as the existence, custody, and
authentic ity of evidence—is a “foregone conclusio n” that “adds little or nothing to
the sum total of the Government’s informa tio n. ”); Compare United States v . Apple
Mac Pro Computer, 851 F.3d 238, 246- 48 (3rd Cir. 2017) (although dealing with the
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appeal of a civil contempt order for a suspect’s failur e to comply with a court order
to decrypt devices containing suspected child pornography, the court concluded that
even if it could assess the underlying issue of a Fifth Amendme nt privile ge in the
context of compelled decryption, it would be inapplicab le because the magistrate
judge issuing the order did not commit a clear or obvious error in applying the
foregone conclusio n doctrine to the facts of that case as the government had
provided evidence to show the files existed on the encrypted portions of the devices
and that the suspect could access them), with In re Grand Jury Subpoena Duces
Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1337, 1346- 49 (11th Cir. 2012)
(determining that the Fifth Amendment does apply to compelled decryption and
based on the facts before it, the forgone conclusion doctrine did not apply, as the
government failed to show that any files existed on the hard drives and could not
show with any reasonable particular ity that the suspect could access the encrypted
portions of the drives).

         We do not reach the merits of the government’s arguments because t he United
States waived most of the issues they assert on appeal when they conceded in their
initia l brief to the militar y judge that the accused’s providing a passcode to a CID
agent was testimonia l and incriminating. In the brief to the militar y judge the
government stated that “[a] statement is testimonia l when its contents are contained
in the mind of the accused and are communicated to the Government. ” The brief
then stated “the Government concedes that the Accused ’s statement [providing the
passcode] would be testimonia l, incriminating, and compelled .”

        The government concession in the brief was initia lly limited to the assumptio n
that CID asked for the accused’s passcode before reading him his right’s warning.
That is, the government’s concession assumed that CID asked the accused for his
passcode before advising him of his Article 31(b), UCMJ, rights. However, we can
distinguis h no reason why the statement would be testimonia l pre - rights warning and
non- testimo nia l after the accused has invoked his rights. If asking for the passcode
is “testimo nia l” and “incriminating” before a rights warning is given, then it is also
testimonia l and incriminating after that same suspect has invoked his right to
counsel.

      However, if there is any doubt about the scope of the government ’s
concession at trial, it was erased by the following exchange between the trial
counsel and militar y judge.

             MJ: So, governme nt, do you concede that asking someone
             for their passcode to a computer is asking for
             incriminating evidence or incrimina ting informa tio n that

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             would trigger 5th Amendment and Article 31(b)
             protections?

             TC: Uhm - - prior to being read one’s rights, Your Honor,
             or in just in general?

             MJ: No. I am asking you, does - - asking someone for the
             passcode to their iPhone trigger 5 th Amendment
             protections and Article 31(b) protections?

             TC: Yes, Your Honor.

The militar y judge went on to confirm the governme nt’s concession two more times. 3
The militar y judge even noted that there was contrary case law that would support an
argument that providing a passcode is not testimonia l. The government maintained
its position.

       The government concession at trial included that the passcode was
“testimo nia l” and “incriminating. ” In conceding the passcode was incriminating, the
government necessarily conceded the request for the incrimina ting response was an
interrogatio n. See Militar y Rule of Evidence [hereina fter Mil. R. Evid.] 305(b)(2)
(defining an interrogatio n as “any formal or informa l questioning in which an
incriminating response either is sought or is a reasonable consequence of such
questioning. ”). Thus, we are confused when the governme nt argues to us on appeal
that “even if [the accused] was in custody when [CID] asked for his passcode, [the
accused] was not entitled to a rights warning because the request for the passcode,
which was akin to a request for consent to sea rch, was not ‘interrogatio n.’

3 After the militar y judge granted the accused ’s motion to suppress the evidence the
government requested reconsideratio n in light of our sister court’s decision in
United States v . Robinson, 76 M.J. 663 (A.F. Ct. Crim. App. 2017). The motion
stated that “the Government still concedes that stating as [sic] passcode is
testimonia l, the Government maintains its position that stating a passcode is not
incriminating. ” The government’s statement that they “mainta in” their position that
a passcode is not incriminating is hard to reconcile with their origina l motion where
they stated that “the Government concedes that the Accused’s statement would be
testimonia l, incriminating, and compelled. ” In any event, the government’s position
in the motion for reconsideratio n does not cause us to alter our approach to the case
for two reasons: first, the government continued to clearly concede that providing
the passcode was testimonia l; second, the motion for reconsideratio n only asked the
militar y judge to reconsider his decision on 5 th Amendment grounds, and not the
Article 31(b), UCMJ, grounds that we find to be controlling.
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SUAREZ–ARMY MISC 20170366

       The government’s argument misundersta nds, as we see it, our role on appeal.
Our job is not to determine whether the accused providing his passcode is
testimonia l. Our job is to determine whether the milita r y judge erred when he found
that providing the passcode was testimonia l. In many cases these two questions will
be the same.

       However, when a party waives or forfeits an issue at trial the two questions
diverge. When the government tells the trial judge that the ac cused’s statement is
testimonia l and incriminating, we will never find that the militar y judge erred even
if—and we do not decide this—in or own view the statements are not testimonia l and
incriminating.

        The efficie nt appellate review of trial decisions d epends on the preservation
of issues at trial. “No procedural principle is more familiar to this Court than that a
constitutio na l right may be forfeited in crimina l as well as civil cases by the failure
to make timely assertion of the right before a tribunal having jurisdictio n to
determine it.” Yak us v . United States, 321 U.S. 414, 444 (1944). “Forfeiture is ‘not
a mere technicality and is essential to the orderly administra tio n of justice. ’”
Freytag v . Commissioner, 501 U.S. 868, 895 (1991) (Scalia, J. concurring and
quoting 9 C. Wright & A. Miller, Federal Practice and Procedure § 2472, p. 455
(1971)). “[A] trial on the merits, whether in a civil or crimina l case, is the ‘main
event,’ and not simply a ‘tryout on the road’ to appellate review.” Id. (quoting
Wainright v . Syk es, 433 U.S. 72, 90 (1977)). The waiver doctrine bars consideration
of an issue that a party could have raised in an earlier appeal in the case. See Brook s
v . United States, 757 F.2d 734, 739 (5th Cir. 1985). It “serves judicia l economy by
forcing parties to raise issues whose resolutio n might spare the court and parties
later rounds of remands and appeals.” Hartman v . Duffey, 88 F.3d 1232, 1236 (D.C.
Cir. 1996), cert. denied, 520 U.S. 1240 (1997). Regardless, whether waiver or
forfeiture is the appropriate principle in a particular case, the preservation of issues
is required for orderly appellate review.

        The importance of waiver, the issue here, is all the more important as our
jurisdictio n to hear the government’s appeal is provided by Article 62, UCMJ.
While we have the authority to notice waived and forfeited issues when a case is on
direct appeal under Article 66, UCMJ, no similar authority exists for interlocutor y
appeals.

        In United States v . Schelmetty, ARMY 20150488, 2017 CCA LEXIS 445
(Army Ct. Crim. App. 30 June 2017) (mem. op.), the appellant asked us to review the
militar y judge’s ruling excluding evidence under Mil. R. Evid. 412. In asking us to
find error, appellant asserted for the first time on appeal new legal and factual
theories in support of admitting evidence of the victim’s sexual behavior. Id. at *8.
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We limited our ruling to determining whether the trial judge had erre d based on the
arguments made at trial. Id. at *9. Thus in Schelmetty, we refused to consider an
argument on appeal that the victim’s other sexual acts should have been admitted
under the “consent” exception to Mil. R. Evid. 412 when the defense counsel during
the motion’s hearing stated that the issue was “not an issue of consent.” Id. at 10- 11.

        In other words, in Schelmetty we reviewed whether the militar y judge erred by
looking at the facts and legal theories of the case that had been brought to his
attention at the time. We did not consider arguments or theories of the evidence that
were advanced for the first time on appeal. Applying our methodology in Schelmetty
to the present case would lead us to accept the governme nt’ s concessions at trial.

       Indeed, we conclude that we cannot reject the governme nt’ s concession in this
case, even if we were otherwise inclined. The government argues that we should not
accept its concession at trial and that we are not bound by the concession. We
disagree. When the government makes a concession to this court we may choose to
reject the concession. If a party misapplies the law in a brief to this court we are not
required to adopt the flawed reasoning. That is what de novo review of an issue of
law allows.

       However, when the government concedes an issue at trial and the militar y
judge accepts the concession, then the government cannot complain to this court that
the milita ry judge erred. We find the cases cited by the government to be
unpersuasive. United States v . Budk a, 74 M.J. 220 (C.A.A.F. 2015) (summ. disp.),
is a case where the court of crimina l a ppeals (CCA) rejected a government
concession made at the CCA. United States v . Emmons, 31 M.J. 108, 110 (C.M.A.
1990), is a case where the CCA and our superior court rejected the government’s
concession on appeal. Similar ly, United States v . McNamara, 7 U.S.C.M.A. 575,
578, 23 C.M.R. 39, 42 (1957), is a case where the court stated it was not bound by
the governme nt’ s concession on appeal to that appellant’s claim of error . United
States v . Hand, 11 M.J. 321 (C.M.A. 1981), and United States v . Patrick , 2
U.S.C.M.A. 189, 7 C.M.R. 65, 67 (C.M.A. 1953), are cases where the governme nt’ s
concessions were never accepted. In none of these cases did a party concede an
issue at the trial level, have the concession accepted, and then argue to the appellate
courts that the concession should be ignored. The closest case cited by the
government on point, United States v . Taylor, 47 M.J. 322, 328 (C.A.A.F. 1997), is
acknowledged by the government to be a citation to the dissenting opinion.

       Our review, here, is to determine whether, under Article 62(a)(1)(B), UCMJ,
the milita ry judge erred in his “ruling which exclude[d] evidence that is substantia l
proof of a fact material in the proceeding. ” That is, our review is to determine

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whether the trial judge erred as a matter of law, not to determine how we would
decide the same issue in the first instance.

       As the accused’s counsel on appeal correctly summar ized in oral argument,
“‘[S]hould’ is an Article 66 question, ‘can’ is an Article 62 question . . . the problem
with trying to overturn the concession here is: the question posed to this court is
whether or not the militar y judge abused his discretion. And, saying that a militar y
judge abused his discretion by accepting the concession of the very party who then
claims he abused his discretion in accepting the concession, is—it fails to logically
connect.”

        If asking for the accused’s passcode to his phone invited a testimonia l and
incriminating response, the government was required to ob tain a valid waiver of the
accused’s Article 31(b), UCMJ, rights prior to asking for the passcode. Under Mil.
R. Evid. 305(b)(2), action that triggers the requirement for Article 31, UCMJ,
warnings includes “any formal or informa l questioning in which an incrimina ting
response either is sought or is a reasonable consequence of such questioning. ” As
either (1) no rights warning was given, or (2) the accused invoked his rights, we find
no error when the militar y judge suppressed both the accused’s statement and the
derivative evidence from that statement. 4 Militar y Rule of Evidence 305(a) and (c)
provide that statements obtained without a proper rights warning are defined as
“invo luntar y” and are excluded along with any evidence derived from the statement
by operation of Mil. R. Evid. 304(a) and (b).

        It may be that the government’s concession in this case was gratuito us and
logically inconsis te nt with its stated goal of defeating the accused’s motion to
suppress. This inferred inconsiste nc y is certainly an undercurrent in the
government’s arguments on appeal. However, except when necessary to address a
claim such as ineffec tive assistance of counsel, we do not think it wise or necessary
to try to determine why a party may have done what they did. The concession was
made. The government maintained the concession even under repeated questioning
by the militar y judge. As such, the substantive issue of this appeal was waived by
the governme nt at trial.



4 While the militar y judge noted the government ’s waiver and discussed in depth the
government’s concession during argument, his decision to suppress the evidence
may have also reached the merits of the issue. The accused on appeal asks that we
apply the Tipsy Coachman doctrine if we arrive at the same result as the militar y
judge, albeit for different reasons. United States v . Carista, 76 M.J. 511, 515 (Army
Ct. Crim. App. 2017). We find this argument reasonable.
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                                 CONCLUSION

     Accordingly, the appeal by the United States under Article 62, UCMJ, is
DENIED.

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                     FOR THE COURT:



                                     JOHN P. TAITT
                                     Acting Clerk of Court




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