              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM S32528
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                           Jeremie MILAM
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 5 December 2019
                          ________________________

Military Judge: Ryan A. Hendricks.
Approved sentence: Bad-conduct discharge, confinement for 2 months,
hard labor without confinement for 13 days, and reduction to E-1. Sen-
tence adjudged 23 March 2018 by SpCM convened at Shaw Air Force
Base, South Carolina.
For Appellant: Major Christopher C. Newton, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Anne
M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Judge LEWIS delivered the opinion of the court, in which Senior Judge
MINK and Judge D. JOHNSON joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                          ________________________

LEWIS, Judge:
   A special court-martial composed of officer members convicted Appellant,
contrary to his pleas, of two specifications of wrongful use of a controlled sub-
stance (cocaine and marijuana), in violation of Article 112a, Uniform Code of
                    United States v. Milam, No. ACM S32528


Military Justice (UCMJ), 10 U.S.C. § 912a.1,2 The court members sentenced
Appellant to a bad-conduct discharge, confinement for two months, hard labor
without confinement for three months, reduction to the grade of E-1, and a
reprimand. The convening authority reduced the hard labor without confine-
ment to 13 days, disapproved the reprimand, and approved the remainder of
the adjudged sentence.3,4
    Appellant raises one assignment of error that the military judge abused his
discretion when he denied a motion to suppress the results of his urinalysis.

1All references in this opinion to the Uniform Code of Military Justice (UCMJ) and the
Military Rules of Evidence are to the Manual for Courts-Martial, United States (2016
ed.).
2 The convening authority withdrew and dismissed one specification of wrongful use of
marijuana after the military judge granted the Defense’s motion to suppress a urinal-
ysis sample collected from Appellant pursuant to a command policy on reinspection
under United States v. Bickel, 30 M.J. 277 (C.M.A. 1990). The military judge concluded
the reinspection policy did not apply as Appellant consented to the first urinalysis sam-
ple rather than being selected as part of a random inspection. The military judge also
found that inevitable discovery and the good faith exception were inapplicable and that
appreciable deterrence to investigators warranted exclusion of the second urinalysis.
3The staff judge advocate recommended the convening authority reduce the sentence
as was done to remedy an error after Appellant was wrongfully ordered to start his
hard labor without confinement before the convening authority took action and ordered
that portion of the sentence executed. See Article 57(c), UCMJ, 10 U.S.C. § 857(c). Ap-
pellant completed 13 days of hard labor without confinement before discovery of this
error.
4 Trial defense counsel’s clemency letter incorrectly stated the convening authority had
“sole discretion . . . to set aside findings of guilt and to reduce an adjudged court-mar-
tial sentence.” The addendum to the staff judge advocate’s recommendation (SJAR) did
not address this misstatement of the law by defense counsel. See United States v. Ze-
garrundo, 77 M.J. 612 (A.F. Ct. Crim. App. 2018), rev. denied, __ M.J. __ , No. 19–0407,
2019 CAAF LEXIS 741 (C.A.A.F. 8 Oct. 2019). We note the SJAR itself correctly stated
that the convening authority had no power to dismiss the findings of guilt and no power
to disapprove the bad-conduct discharge. See Article 60(c)(3)(B), (c)(4)(A), UCMJ, 10
U.S.C. § 860(c)(3)(B), (c)(4)(A). We find no colorable showing of possible prejudice from
trial defense counsel’s misstatement of the law as it incorrectly informed the convening
authority he had more, rather than less, discretion than he actually had. See United
States v. Lamica, No. ACM 39423, 2019 CCA LEXIS 257, at *16 n.4 (A.F. Ct. Crim.
App. 14 Jun. 2019) (unpub. op.), rev. denied, __ M.J. __, No. 19–0410, 2019 CAAF
LEXIS 765 (C.A.A.F. 22 Oct. 2019); United States v. Ten Eyck, No. ACM 39188, 2018
CCA Lexis 193, *6–8 (A.F. Ct. Crim. App. 17 Apr. 2018) (unpub. op.), rev. denied, __
M.J. __, No. 18–0275, 2018 CAAF LEXIS 412 (C.A.A.F. 19 Jul. 2018).




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                     United States v. Milam, No. ACM S32528


First, Appellant argues that the military judge abused his discretion when he
determined that Appellant’s consent to the urinalysis was voluntary. Second,
even if Appellant’s consent was voluntary, Appellant argues the military judge
should have suppressed the urinalysis results as derivative evidence from an
earlier constitutional violation of his Fifth Amendment rights.5 We find no prej-
udicial error and affirm the findings and sentence.

                                I. BACKGROUND
    In November 2017, security forces investigators at Shaw Air Force Base
(AFB), South Carolina, received notification that a urinalysis of Staff Sergeant
(SSgt) MP tested positive for a metabolite of cocaine. Investigators promptly
interviewed SSgt MP under rights advisement pursuant to Article 31, UCMJ,
10 U.S.C. § 831. SSgt MP agreed to answer questions about his positive drug
test and admitted receiving cocaine from civilian friends and using it on mul-
tiple occasions. SSgt MP denied knowing military members who used illegal
drugs but told investigators that Appellant was the “only person he really
hangs out with” as they shared common interests in amateur disc jockeying
and smoking various types of tobacco with a hookah. In addition to their com-
mon off-duty interests, both SSgt MP and Appellant were assigned to the same
squadron.
    Investigator MR, a staff sergeant in the Air Force, decided to interview Ap-
pellant immediately. To facilitate this interview, Appellant’s first sergeant
picked up Appellant at the squadron and drove him to the security forces build-
ing. Appellant waited in a classroom until Investigator MR was ready to inter-
view him. After about 15 minutes of waiting, Appellant saw SSgt MP walk out
of the investigations section with the first sergeant. Investigator MR, wearing
his military uniform with his staff sergeant rank visible, told Appellant to come
with him to the interview room.
   Appellant’s interview with Investigator MR lasted less than 15 minutes. At
the beginning, Investigator MR took Appellant’s military identification card.
Substantively, the interview began with a focus on SSgt MP’s drug involve-
ment. Appellant denied knowing anything about SSgt MP using illegal drugs.
After this line of inquiry, Investigator MR switched his focus to Appellant’s
potential use of illegal drugs. Despite the shift in focus, Investigator MR did
not read Appellant his rights under Article 31, UCMJ.
   It is undisputed that Investigator MR asked Appellant to consent to a uri-
nalysis and to a search of his vehicle and dormitory room. Appellant agreed,
and Investigator MR retrieved and filled out a consent form (AF IMT 1364,


5   U.S. CONST. amend. V.


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                  United States v. Milam, No. ACM S32528


Consent for Search and Seizure). Appellant initialed in multiple places on the
consent form and signed granting consent. While no evidence of illegal drug
involvement was found in Appellant’s vehicle or dormitory, his urine tested
positive for metabolites of cocaine and marijuana above the Department of De-
fense cutoff levels for each drug.
    At trial, the parties disputed whether Investigator MR asked Appellant
whether he used cocaine prior to asking him for consent. According to Appel-
lant, Investigator MR directly asked this question, and Appellant denied using
cocaine. Investigator MR denied asking the question and noted that his report
of investigation made no mention of the question or of Appellant’s denial.
    One month before trial, Appellant filed a motion to suppress his urinalysis
results arguing that his consent was not provided voluntarily. The Defense
posited that Appellant’s rights were violated when he was subjected to custo-
dial interrogation by Investigator MR without being advised of his rights and
without counsel being present in violation of the Fifth Amendment. In essence,
the Defense asserted this prior rights violation contributed to a coercive and
intimidating environment which along with restrictions on Appellant’s liberty
meant that Appellant only passively acquiesced to the color of authority when
he signed the consent form. In opposition, trial counsel argued no rights viola-
tion occurred and that objectively and based on the totality of the circum-
stances, the consent was “perfectly reasonable” without coercion or defect.
    The parties agreed the correct framework for determining voluntariness of
consent included an analysis of the six non-exhaustive factors adopted by the
United States Court of Appeals for the Armed Forces (CAAF) in United States
v. Wallace, 66 M.J. 5, 9 (C.A.A.F. 2008). The military judge used these factors
as a framework for his oral ruling. We address each of the six factors in our
analysis below, but provide a general summary of the military judge’s ruling
here.
    At the outset, the military judge found Investigator MR asked Appellant
“directly whether he used illegal substances.” The military judge concluded
Appellant was “in custody” at this time and suffered a “clear violation” of his
Fifth Amendment rights. To remedy this violation, the military judge sua
sponte suppressed “all statements made by [Appellant] to Security Forces in-
vestigators.” Turning to the voluntariness of the consent, the military judge
determined:
       Based upon the totality of the circumstances, [Appellant] did feel
       pressured to give consent, but the government has established
       by clear and convincing evidence that [Appellant]’s consent to
       provide the urinalysis was made freely and voluntarily, despite
       the coercive environment in which it was made. [Appellant] was


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                  United States v. Milam, No. ACM S32528


       aware that he could have consented or refused to provide his
       urine. Similarly, based upon the facts presented, objectively, a
       reasonable person similarly situated would have understood the
       words spoken to him, and the words he himself read on the [AF
       IMT] 1364.
The military judge admitted the urinalysis results and the court members
found Appellant guilty of using cocaine and marijuana.
    On appeal, Appellant first asserts the military judge erred by applying two
of the six Wallace factors in the Government’s favor and by concluding that
Appellant’s consent was voluntary. The Government disagrees and argues we
should find the military judge did not abuse his discretion when he determined
Appellant’s consent to search was voluntary under the totality of the circum-
stances.
   Alternatively, Appellant claims that even if his consent was voluntary, we
should find the urinalysis results were derivative evidence or “fruit of the poi-
sonous tree” from his illegal interrogation. See United States v. Conklin, 63
M.J. 333 (C.A.A.F. 2006). The Government disagrees arguing the failure to
provide a rights advisement either had no bearing on, or was too attenuated
from, Appellant’s consent to search to require suppression.

                                II. DISCUSSION
A. Voluntariness of the Consent
   1. Law
    We review a military judge’s ruling on a motion to suppress evidence for an
abuse of discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)
(citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). The military
judge’s findings of fact are reviewed for clear error, but his conclusions of law
are reviewed de novo. United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F.
2015) (citation omitted). “[T]he abuse of discretion standard of review recog-
nizes that a judge has a range of choices and will not be reversed so long as the
decision remains within that range.” United States v. Gore, 60 M.J. 178, 187
(C.A.A.F. 2004) (citation omitted). However, “[a] military judge abuses his dis-
cretion when his findings of fact are clearly erroneous, when he is incorrect
about the applicable law, or when he improperly applies the law.” United
States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004). “[I]n reviewing a ruling on
a motion to suppress, we consider the evidence in the light most favorable to
the prevailing party.” United States v. Eppes, 77 M.J. 339, 344 (C.A.A.F. 2018)
(alteration in original) (quoting United States v. Macomber, 67 M.J. 214, 219
(C.A.A.F. 2009)), cert. denied, __ U.S. __, 139 S. Ct. 617 (2018).



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                   United States v. Milam, No. ACM S32528


   The Fourth Amendment provides:
       The right of the people to be secure in their persons, houses, pa-
       pers, and effects, against unreasonable searches and seizures,
       shall not be violated, and no Warrants shall issue, but upon
       probable cause, supported by Oath or affirmation, and particu-
       larly describing the place to be searched, and the persons or
       things to be seized.
U.S. CONST. amend. IV.
   “Searches conducted [pursuant to] a warrant or authorization based on
probable cause are presumptively reasonable[,] whereas warrantless searches
are presumptively unreasonable unless they fall within a few specifically es-
tablished and well-delineated exceptions.” United States v. Hoffmann, 75 M.J.
120, 123–24 (C.A.A.F. 2016) (internal quotation marks omitted) (quoting
United States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014)). Consent is a specifically
established exception to both the warrant and probable cause requirements of
the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
“Property . . . may be seized with consent consistent with the requirements
applicable to consensual searches under Mil. R. Evid. 314.” Mil. R. Evid.
316(c)(3). “To be valid, consent must be given voluntarily. Voluntariness is a
question to be determined from all the circumstances.” Mil. R. Evid 314(e)(4).
“The prosecution must prove consent by clear and convincing evidence.” Mil.
R. Evid. 314(e)(5).
    “The test for voluntariness is whether the consent was Appellant’s own es-
sentially free and unconstrained choice or was her will overborne and her ca-
pacity for self-determination critically impaired.” United States v. Olson, 74
M.J. 132, 134 (C.A.A.F. 2015) (citation and internal quotation marks omitted).
“Consent is a factual determination, and a military judge’s findings will not be
disturbed on appeal unless unsupported by the evidence or clearly erroneous.”
United States v. Piren, 74 M.J. 24, 28 (C.A.A.F. 2015) (citation and internal
quotation marks omitted).
   We focus on six non-exhaustive factors to assist in analyzing the voluntar-
iness of a consent to search:
       (1) the degree to which the suspect’s liberty was restricted; (2)
       the presence of coercion or intimidation; (3) the suspect’s aware-
       ness of his right to refuse based on inferences of the suspect’s
       age, intelligence, and other factors; (4) the suspect’s mental state
       at the time; (5) the suspect’s consultation, or lack thereof, with
       counsel; and (6) the coercive effects of any prior violations of the
       suspect’s rights.
Wallace, 66 M.J. at 9 (citations omitted); see Olson, 74 M.J. at 134.

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                   United States v. Milam, No. ACM S32528


    2. Analysis
    Appellant claims the military judge erred in assessing the third and fourth
Wallace factors and in his ultimate conclusion that Appellant’s consent was
voluntary. We are not persuaded. As consent is based on the totality of the
circumstances, we address the military judge’s findings for each factor.
       a. Restriction on Liberty
    The military judge found Appellant’s liberty was restricted by persons in
authority beginning with the first sergeant who escorted Appellant to the se-
curity forces building. The military judge concluded Appellant ceded to author-
ity as he did not have a real choice whether to go with his first sergeant. The
military judge determined the restriction on Appellant’s liberty continued
when Investigator MR directed Appellant to come with him and that Appellant
was not free to leave at any time. These findings are not clearly erroneous. We
also note that Investigator MR’s decision to keep Appellant’s military identifi-
cation card for the duration of the interview and beyond was another indication
that Appellant was not free to leave.6
       b. Presence of Coercion or Intimidation
    The military judge found no overt coercion or intimidation. However, he did
find an atmosphere that was coercive and intimidating. The military judge
looked, inter alia, at the location, military ranks involved, and restrictions on
liberty and property and found this atmosphere affected Appellant’s inclina-
tion to refuse consent. These findings are not clearly erroneous.
       c. Suspect’s Awareness of His Right to Refuse
    The military judge determined that Appellant was a 21-year-old airman
first class with one year and seven months in the United States Air Force at
the time he consented. The military judge found Appellant signed a consent
form that highlighted he had the right to consent or to refuse to consent. The
military judge concluded that Appellant read, comprehended the meaning of
the words, and had no questions prior to acknowledging his right to refuse con-
sent. These findings are not clearly erroneous.
    Appellant claims the military judge should have found his age, rank, and
the circumstances surrounding the consent impacted his awareness of his right
to refuse to consent. According to Appellant, the stress and heavy weight of the
circumstances surrounding the giving of consent severely impacted Appellant’s
awareness of his right to refuse. We are not persuaded.



6Investigator MR kept Appellant’s military identification card from the beginning of
the interview until he handed it to the drug testing program manager.


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                   United States v. Milam, No. ACM S32528


    Appellant testified for the limited purpose of his motion to suppress. He
admitted he reviewed the consent form, and he knew the form indicated he had
the right to refuse to consent. When asked what that meant to him, Appellant
answered, “It meant that I could refuse.” While Appellant also testified that he
“felt like [he] had to comply” this does not affect his “awareness” of his right to
refuse consent. The military judge’s finding that Appellant was aware of his
right to refuse is well supported by the record.
       d. Suspect’s Mental State
   The military judge found “the facts presented do not establish that [Appel-
lant]’s mental state interfered with his ability to make a rational decision.”
This finding of fact is not clearly erroneous.
    Appellant admits he had no mental infirmity, but claims he felt “attacked”
at the time he gave consent. He asserts that instead of a clear conscience, he
felt the weight and pressure of the circumstances and this certainly impacted
his mental state. Again, we are not persuaded.
    Appellant’s written motion at trial provided ample explanation for the mil-
itary judge’s finding of fact. In that motion, trial defense counsel wrote “[t]here
is no evidence, at this point, to suggest [Appellant]’s mental state interfered
with his ability to make a rational decision.” We observe no change in the De-
fense’s position during oral argument. The senior trial counsel pointed this out,
arguing, “[t]he mental state, even the defense in their motion says there’s noth-
ing wrong with his mental state. It’s clear from his demeanor there was no
undue stress or anything else going on in his life.” The military judge’s finding
that Appellant’s mental state did not interfere with his ability to make a ra-
tional decision is well supported by the record.
       e. Consultation with Counsel
     The military judge found Appellant did not consult with counsel prior to
or throughout his questioning because he was not informed that he was a sus-
pect and was not advised of his right to counsel. This finding of fact is not
clearly erroneous.
       f. Coercive Effects of Prior Violations
    The military judge found the lack of a rights advisement “troubling” under
this factor. As stated above, the military judge ruled Appellant suffered a “clear
violation” of his Fifth Amendment rights. The military judge concluded the vol-
untariness of Appellant’s consent could not be divorced from the coercive ef-
fects of law enforcement withholding from him that he was indeed a suspect.
The military judge also weighed Investigator MR’s decision to keep Appellant’s
military identification card under this factor. We find nothing clearly errone-



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                   United States v. Milam, No. ACM S32528


ous about the military judge’s underlying findings of fact. We also find the mil-
itary judge did not improperly apply the law on the Fifth Amendment and Ar-
ticle 31, UCMJ. The military judge’s ruling that a Fifth Amendment rights
violation occurred was within the permissible range of choices available to him
based on the facts and applicable law.
       g. Totality of the Circumstances
    The military judge concluded based on the totality of the circumstances
that Appellant did feel pressured to give consent, but that the Government
established by clear and convincing evidence that his consent was made freely
and voluntarily despite the coercive environment. The military judge objec-
tively determined a reasonable person, similarly situated, would have under-
stood the words spoken to him and the words he read on the AF IMT 1364.
    Appellant asserts the military judge’s findings on the six Wallace factors
do not support his overall conclusion that consent was voluntary. Appellant
argues the military judge found in Appellant’s favor on “the most important
Wallace factors.” Appellant notes the restriction on liberty, coercion and intim-
idation, lack of consultation with counsel, and “most importantly” the rights
violation all weigh in his favor. We agree with Appellant that the military
judge weighed four of the six factors in his favor. We disagree that weighing
four factors in Appellant’s favor means the military judge’s overall conclusion
was an abuse of discretion.
   We are unaware of any legal precedent that required the military judge to
weigh any one of the Wallace factors more or less heavily than the other factors.
The six factors provide a framework for analysis and are non-exhaustive. Ulti-
mately, the military judge looked at the totality of the circumstances and found
Appellant’s consent voluntary. The military judge did not abuse his discretion
by denying the motion to suppress and admitting the urinalysis results.
B. Derivative Evidence
   1. Additional Background
    On appeal, for the first time, Appellant claims that even if his consent was
voluntary, we should find the urinalysis results were derivative evidence or
“fruit of the poisonous tree” from his illegal interrogation. See Conklin, 63 M.J.
at 333. The Government argues that Appellant’s consent to search was not de-
rived from his responses to questioning and that Appellant’s statements to law
enforcement were ostensibly exculpatory rather than incriminating. We find




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                    United States v. Milam, No. ACM S32528


Appellant waived this issue because he failed to present this argument during
motion practice before the military judge.7
    2. Law
    “Waiver can occur by either operation of law, or by the intentional relin-
quishment or abandonment of a known right.” United States v. Jones, 78 M.J.
37, 44 (C.A.A.F. 2018) (internal citations and quotation marks omitted).
“Whether a particular right is waivable; whether the defendant must partici-
pate personally in the waiver; whether certain procedures are required for
waiver; and whether the defendant’s choice must be particularly informed or
voluntary, all depend on the right at stake.” United States v. Olano, 507 U.S.
725, 733 (1993) (citations omitted). When there is waiver of an issue, that issue
is extinguished and may not be raised on appeal. United States v. Gladue, 67
M.J. 311, 313 (C.A.A.F. 2009) (citation omitted).
    Mil. R. Evid. 311(d)(2)(A) requires the Defense to make any motion to sup-
press or objection under this rule regarding evidence obtained from an unlaw-
ful search and seizure prior to the submission of a plea unless permitted by the
military judge for good cause shown. “Failure to so move or object constitutes
a waiver of the motion or objection.” Mil. R. Evid. 311(d)(2)(A).
    Two recent CAAF cases addressed the waiver provision of Mil. R. Evid.
311(d)(2)(A). First, in United States v. Robinson, the CAAF found waiver when
trial defense counsel failed to raise an argument on the scope of the appellant’s
consent to search during a motion to suppress. 77 M.J. 303, 307 (C.A.A.F.
2018). The CAAF found Mil. R. Evid. 311(d)(2)(A) “unambiguously establishes
that failure to object is waiver, and it is not a rule that uses the term ‘waiver’
but actually means ‘forfeiture.’” Id. (citing United States v. Ahern, 76 M.J. 194,
197 (C.A.A.F. 2017)). Second, in United States v. Smith, the CAAF cited its
“unambiguous holding in Robinson” and “reiterate[d] that failure to object un-
der [Mil. R. Evid.] 311 constitutes waiver, not forfeiture.” 78 M.J. 325, 326
(C.A.A.F. 2019) (citing Robinson, 77 M.J. at 307).
    3. Analysis
    We closely reviewed the record of trial to see if Appellant raised derivative
evidence as a grounds for suppression when he filed his motion at trial. We
find no such reference in the ten-page written motion from the Defense. That
motion contains five law sections: consent generally, test for voluntariness,
Fifth Amendment rights violation, limited scope of consent, and inevitable dis-
covery. We find no citation to the law on derivative evidence or “fruit of the

7 In their briefs before this court, neither appellate counsel addressed whether the de-
rivative evidence argument was waived under Mil. R. Evid. 311(d)(2)(A). We deter-
mined it unnecessary to specify this issue for briefing.


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                    United States v. Milam, No. ACM S32528


poisonous tree” in the Defense’s motion, though they generally cite to Mil. R.
Evid. 311(d) which contains the words “or evidence derived therefrom.”
  The assistant trial counsel’s motion response contains one paragraph that
mentions the law on suppression of derivative evidence:
       Evidence derivative of an unlawful search, seizure, or interroga-
       tion is commonly referred to as the “fruit of the poisonous tree”
       and is generally not admissible at trial. Nardone v. United
       States, 308 U.S. 338, 341 (1939) (emphasis added).
The Government made no further mention of the law regarding derivative ev-
idence and did not analyze how it applied to the Defense’s motion to suppress.
    In oral argument, trial defense counsel argued extensively on the legal is-
sues she articulated in her written motion. She made one reference to deriva-
tive evidence when she addressed whether appreciable deterrence existed un-
der Mil. R. Evid. 311(a)(3) to require application of the exclusionary rule:
       Your honor, the evidence must be suppressed in total. This
       would clearly result in an appreciable deterrence as the rule re-
       quires of future unlawful searches and seizures. Because it’s
       very clear that the law enforcement involved in this case need to
       be reminded that they need to absolutely respect our Airmen’s
       constitutional rights. Because this whole test should be thrown
       out, Your Honor, we also ask that all derivative evidence be
       thrown out which includes the second test from 22 November.8
(Emphasis added). Senior trial counsel did not mention derivative evidence in
her argument.
    The military judge never ruled whether the urinalysis results were derived
from Appellant’s rights violation. He did not cite or analyze the United States
Supreme Court precedent on suppression of derivative evidence such as Brown
v. Illinois, 422 U.S. 590 (1975), or Wong Sun v. United States, 371 U.S. 471
(1963). The military judge did not cite or analyze the CAAF’s precedent on this
issue such as Conklin or United States v. Khamsouk, 57 M.J. 282 (C.A.A.F.
2002). We therefore have no ruling below on whether Appellant’s consent, as
an independent act of free will, broke “the causal chain between the consent
and the constitutional violation.” See Conklin, 63 M.J. at 338 (citation omitted).




8Appellant consented to provide his first urinalysis on 6 November 2017. His second
urinalysis was ordered to be collected on 22 November 2017 after investigators learned
his first sample tested positive for cocaine and marijuana. The military judge sup-
pressed the second urinalysis results as we described in footnote 2.


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                   United States v. Milam, No. ACM S32528


    We are convinced the military judge did not address this issue because trial
defense counsel never raised it. We considered trial defense counsel’s one pass-
ing reference to derivative evidence and find it insufficient to raise a “fruit of
the poisonous tree” objection. Instead, we find this passing reference to be an
attempt to utilize Appellant’s second urinalysis—which was absolutely deriv-
ative evidence of his first urinalysis and improperly ordered—into the analysis
of Mil. R. Evid. 311(a)(3)’s “appreciable deterrence” standard for Appellant’s
first urinalysis.
    Similarly, we find unimportant that the Government referenced one case
on “fruit of the poisonous tree” in the law section of their written motion. Nei-
ther the senior trial counsel nor the trial defense counsel referenced Nardone
in their oral arguments. We conclude that this reference by the Government
did not preserve the issue for the Defense. After considering all the matters
raised in the Defense’s motion to suppress, we find Appellant waived the issue
that his consent was derivative or “fruit of the poisionous tree” from the earlier
Fifth Amendment rights violation because he failed to present this issue to the
military judge for a ruling.
   Separately, we recognize our authority under Article 66, UCMJ, 10 U.S.C.
§ 866, to pierce a waiver in order to correct a legal error. See United States v.
Hardy, 77 M.J. 438, 443 (C.A.A.F. 2018). We decline to exercise our Article
66(c) authority to pierce this waived issue as we see no legal error to correct.
    Even assuming arguendo that Appellant preserved the derivative evidence
issue, we again find the military judge did not abuse his discretion in admitting
the first urinalysis for two reasons. First, Appellant’s consent for search was
not derived from the rights violation. Appellant made no incriminating state-
ment that would have prodded Investigator MR to ask for consent for a urinal-
ysis. Instead, the record of trial shows that Appellant’s close friendship with
SSgt MP was what spurred Investigator MR to spend investigative time and
resources to determine if Appellant could also be a cocaine user. Investiga-
tor MR described asking for consent as a standard operating procedure to find
the “truth” and to “see if there’s anything [the witness is] not telling us.” We
find Investigator MR’s decision to request consent was not derived from any-
thing Appellant said. Second, we find Appellant’s review, initials, and signa-
ture on the consent form that it was his “legal right to either consent to a
search, or to refuse to give my consent” as analyzed above broke any causal
chain that could arguably exist between the constitutional violation and the
consent. See Conklin, 63 M.J. at 338.




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                  United States v. Milam, No. ACM S32528


                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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