UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 MULLIGAN, HERRING, BURTON
                                    Appellate Military Judges

                             UNITED STATES, A p p e l l a n t
                                            v.
                           Sergeant EDWARD J. MITCHELL, II
                               United States Army, Appellee

                                    ARMY MISC 20150776

                          Headquarters, 1st Cavalry Division
                         Rebecca K. Connally, Military Judge
              Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate


 For Appellant: Captain Jihan Walker, JA (argued); Colonel Mark H. Sydenham.
 JA; Captain Jihan Walker, JA (on brief); Lieutenant Colonel A.G. Courie III, JA;
 Major Jihan Walker, JA (on brief following second government appeal); Colonel
 Mark H. Sydenham. JA; Lieutenant Colonel A.G. Courie III, JA; Major Jihan
 Walker, JA (on reply brief following second government appeal).

 For Appellee: Major Andres Vazquez, Jr. JA (argued); Lieutenant Colonel
 Jonathan Potter, JA; Major Andres Vazquez, Jr., JA (on brief); Lieutenant Colonel
 Melissa A. Covolesky, JA; Major Andres Vazquez, Jr., JA; Captain Katherine
 DePaul, JA (on brief following second government appeal).


                                           29 August 2016

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                     SUMMARY DISPOSITION AND ACTION ON APPEAL
                        BY THE UNITED STATES FILED PURSUANT TO
                    ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                 -------------------------------------------------------------------------

Per Curiam:

       This case is before this court pursuant to the government’s second appeal of a
military judge’s ruling suppressing evidence filed in accordance with Article 62,
Uniform Code of Military Justice, 10 U.S.C. § 862 (2012) [hereinafter UCMJ]. The
government challenges the military judge’s decision to suppress appellee’s mobile
phone with internet capabilities, an iPhone 6 [hereinafter iPhone], and all evidence
MITCHELL – ARMY MISC 20150776
 
derived from a search of that iPhone. 1

       In “clarified findings and conclusions,” dated 17 May 2016, the military judge
concluded: appellee first requested counsel while in custody; appellee was also in
custody when Military Police (MP) investigators “reinitiated interrogation;” “there
was insufficient time” for “terminat[ing]” any “lingering effects” or to “dissipate the
coercive effects of the prior interrogation;” and based on “the totality of the
circumstances” appellee provided “no knowing or intelligent waiver” of his right to
counsel. The military judge based these conclusions on an Article 39(a), UCMJ,
hearing where: appellee’s company commander testified he received a phone call
that investigators were coming to the company area and needed to see appellee.
After that call, the commander directed that someone find and bring appellee to the
commander’s office. When the investigators arrived appellee was in the
commander’s office and the commander left his office for the use of the
investigators. The company commander testified this encounter occurred
approximately one to one and a half hours after appellee invoked his right to counsel
and was released from the Military Police station with a unit escort.

       Based on her findings from the testimony, the military judge concluded
appellee’s “statement” of entering his personal identification number (PIN) into his
iPhone was obtained in violation of appellee’s Fifth Amendment right against self-
incrimination and Fifth Amendment right to counsel, as appellee was again subjected
to law enforcement-initiated custodial interrogation after invoking his right to
counsel. See generally Edwards v. Arizona, 451 U.S. 477 (1981) and Maryland v.
Shatzer, 559 U.S. 98 (2010). In military practice, Military Rule of Evidence
[hereinafter Mil. R. Evid.] 305(e)(1) incorporates the Edwards rule. 2   Accordingly,
                                                            
1
  The military judge also suppressed a hardbound notebook, dubbed the “green
book.” The government does not challenge that part of the military judge’s ruling;
therefore we adopt it as the law of the case. See United States v. Parker, 62 M.J.
459, 464 (C.A.A.F. 2006). On 29 October 2015, the military judge issued a ruling
suppressing the contents of the iPhone. The government appealed pursuant to
Article 62, UCMJ. On 18 March 2016, this court issued an action on government
appeal requesting the military judge to make detailed findings to address the issue of
whether appellee’s act of unlocking the iPhone was “testimonial,” whether appellee
was in custody when he unlocked the iPhone, and any other matter relevant to the
suppression motion. United States v. Mitchell, ARMY MISC 20150776, 2016 CCA
LEXIS 179 (Army Ct. Crim. App. 18 Mar. 2016)(mem. op.).
2
  “Absent a valid waiver of counsel under subdivision (g)(2)(B), when an accused or
person suspected of an offense is subjected to a custodial interrogation under
circumstances described under subdivision (d)(1)(A) of this rule, and the accused or
suspect requests counsel, counsel must be present before any subsequent custodial
interrogation may proceed.” Mil. R. Evid. 305(e)(1).
 
                                                               2
MITCHELL – ARMY MISC 20150776
 
the military judge suppressed evidence obtained from appellee’s iPhone.

        When acting on interlocutory appeals under Article 62, UCMJ, our court may
act “only with respect to matters of law.” United States v. Baker, 70 M.J. 283, 289
(C.A.A.F. 2011). We may not substitute our own fact-finding. Id. A military
judge's findings of fact are reviewed under a clearly erroneous standard and
conclusions of law de novo. Id. For an appeal under Article 62, UCMJ, this court
“reviews the evidence in the light most favorable to the party which prevailed at
trial.” United States v. Henning, 75 M.J. 187, 190-91 (C.A.A.F. 2016). A military
judge's ruling on admissibility of evidence is reviewed for abuse of discretion.
United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). To overturn the trial
judge’s ruling on appeal, it must be “arbitrary, fanciful, clearly unreasonable or
clearly erroneous.” United States v. Taylor, 53 M.J. 195, 199 (C.A.A.F. 2000).
“The abuse of discretion standard calls for more than a mere difference of opinion.”
United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015) (quoting United States v.
Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014)). Given the evidence in the record, we find
that the military judge’s findings of fact are not clearly erroneous and her
conclusions of law are correct as a matter of law; we do not find that the military
judge abused her discretion by suppressing the evidence in question.

     Accordingly, the appeal by the United States under Article 62, UCMJ, is
DENIED.
 
                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court  




 
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