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 Calvary Division
                         Rebecca K. Conally, Military Judge
             Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate


 For Appellant: C a p t a i n J i h a n W a l k e r , J A (argued); Colonel Mark H. Sydenham.
 JA; C a p t a i n J i h a n W a l k e r , J A (on brief).

 For Appellee: M a j o r A n d r e s V a z q u e z , J r . J A (argued); Lieutenant Colonel
 Jonathan Potter, JA; M a j o r A n d r e s V a z q u e z , J r . J A (on brief).


                                            18 March 2016

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

   This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Judge:

       Appellee stands accused of three specifications of conspiracy to commit an
offense; one specification of failure to go to an appointed place of duty; one
specification of disrespect to a superior commissioned officer; five specifications of
disobeying a superior commissioned officer; two specifications of sexual assault;
two specifications of stalking; one specification of indecent broadcasting; one
specification of assault consummated by battery; one specification of child
endangerment; one specification of obstruction of justice, one specification of
solicitation, one specification of communicating a threat; two specifications of
online impersonation; one specification of indecent broadcasting of intimate images,
and three specifications of harassment, in violation of Articles 81, 86, 89, 90, 120,
MITCHELL – ARMY 20150776
  
120a, 120c, 128 and 134, Uniform Code of Military Justice, 10 U.S.C. § 881, 886,
889, 890, 920, 920a, 920c 928 and 934 (2012) [hereinafter UCMJ].

       This case is before this court pursuant to a government appeal of a military
judge’s ruling filed in accordance with Article 62, UCMJ. The government
challenges the military judge’s decision to suppress appellant’s iPhone 6 and all
evidence derived from a search of that phone. 1 We hereby vacate the military
judge’s ruling as it pertains to the iPhone 6 and derivative evidence and return this
case to the trial court to further develop the factual predicate supporting the ruling
on this motion.

                                                                  BACKGROUND

       On 29 September 2015, trial defense counsel filed a motion to suppress
appellee’s laptop computer, cellular telephones, a hardbound notebook, and evidence
derived from a digital forensic examination of the electronic devices. In addition to
the pleadings and enclosures filed by both parties, the military judge also considered
two audio recordings, two videos and at least nineteen additional enclosures. The
military judge suppressed the iPhone 6 and evidence derived therefrom. The
military judge’s ruling, (Appellate Exhibit LIV, attached as an Appendix to this
opinion) contained extensive factual findings.

       Based on the findings of fact, the military judge concluded “that the verbal
and subsequent written search authorizations sufficiently described the places to be
searched and the items to be seized.” She further held that the investigator’s request
of the accused to unlock his iPhone by entering his PIN violated the appellee’s Fifth
Amendment 2 right against self-incrimination, as the act was testimonial in nature.
Finally, she ruled appellee’s Fifth Amendment right to counsel was violated when
the investigator, three hours after appellee invoked this right, asked appellee to use a
PIN or passcode to unlock the telephone.

                                                               LAW AND DISCUSSION

       “We review a military judge’s ruling on a motion to suppress for an abuse of
discretion.” United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011) (quoting
United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (internal quotation
marks omitted). “In reviewing a military judge’s ruling on a motion to suppress, we

                                                            
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,
so we adopt it as the law of the case. See United States v. Parker, 62 M.J. 459, 464
(C.A.A.F. 2006).
2
     U.S. Const. amend. V.


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MITCHELL – ARMY 20150776
 
review factfinding under the clearly-erroneous standard and conclusions of law
under the de novo standard.” United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
1995) (citations omitted). Where mixed questions of law and fact are involved, “a
military judge abuses his discretion if his findings of fact are clearly erroneous or
his conclusions of law are incorrect.” Id. An abuse of discretion requires “more
than a mere difference of opinion. The challenged action must be ‘arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.’” United States v. White, 69 M.J. 236,
239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.
2010)).

       In conducting a review under Article 62(b), UCMJ, of a military judge’s
decision to exclude matters, this court may act only with respect to matters of law.
United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). In conducting this limited
review of matters of law, “the question is not whether a reviewing court might
disagree with the trial court’s findings, but whether those findings are ‘fairly
supported by the record.’” Id. (quoting United States v. Burris, 21 M.J. 140, 144
(C.M.A. 1985)). When reviewing a ruling on a motion to suppress, “we review[] the
evidence in the light most favorable to the prevailing party at trial.” United States v.
Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014) (citation omitted).

      “Where factual issues are involved in ruling upon such a motion [to suppress],
the military judge shall state essential findings of fact on the record.” Military Rule
of Evidence [hereinafter Mil. R. Evid.] 304(d)(4). However, “[i]f the findings are
incomplete or ambiguous, the ‘appropriate remedy . . . is a remand for clarification’
or additional findings.” United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995)
(quoting United States v. Kosek, 41 M.J. 60, 64 (C.M.A. 1994)); See United States v.
McDonald, ARMY MISC 20130423 CCA LEXIS 516 (Army Ct. Crim App. 24 Jun.
2013) (mem. op.).

           Concerning the ruling that Investigator BT infringed appellee’s Fifth
    Amendment right against self-incrimination, we are uncertain what the military
    judge relied on in determining the appellee used a PIN or passcode to unlock his
    iPhone. The testimony of various witnesses called on the suppression motion
    failed to establish any one of them saw appellee type in a PIN or a passcode. This
    may have been a factual conclusion drawn by the military judge as a fair inference
    of the testimony or based the audio recordings and nineteen other exhibits
    admitted on the motion.

      In holding Investigator BT infringed appellee’s right to counsel, the military
judge relied on United States v. Hutchins, 72 MJ 294 (CAAF 2013), citing the
Supreme Court’s decision in Edwards v. Arizona 3 (Edwards rule) which provided, in

                                                            
3
    Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).



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MITCHELL – ARMY 20150776
  
part, that when an accused invokes his right to counsel during custodial
interrogation, he “is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at
484-85. The military judge also referenced United States v. Bondo, 2015 CCA Lexis
89 (A.F. Ct. Crim. App. 18 Mar. 2015) for the same proposition. In both Hutchins
and Bondo, the accused was in custody during the initial stages of the interrogation
and later when interrogations were reinitiated.

       In military practice, Mil. R. Evid. 305(e)(1) incorporates the Edwards rule. 4
To invoke the Edwards rule, “the courts must determine whether the suspect was in
custody when he requested counsel and when he later made the statements he seeks
to suppress.” Maryland v. Shatzer, 559 US 98, 113 (2010) (emphasis added).

        Here, the military judge noted appellee was released to his unit after the
initial custodial interrogation by Investigator BT. When Investigator BT returned
three hours later, he found appellee “in or outside” of the commander’s office.
Investigator BT’s request to appellee to unlock the iPhone occurred outside the
commanders office. What is uncertain from our review of the record is whether
appellee was in custody the entire time, including when he returned to his unit, was
released from custody after the initial interrogation, or, if released from custody,
was placed back into custody status prior to the request to unlock his iPhone.

       For the reasons above, we cannot find that the appellant’s Fifth Amendment
right against self-incrimination and his Fifth Amendment right to counsel or the
Edwards rule were violated. Therefore, we must return the matter to the military
judge for clarification and action in accordance with this decision.

     We therefore hold that the military judge’s factual findings are ambiguous,
incomplete, and insufficient for us to perform a proper review under Article 62,
UCMJ.

                                                               CONCLUSION

       The appeal of the United States pursuant to Article 62, UCMJ, to the military
judge’s decision to suppress the appellee’s iPhone 6 is GRANTED. The ruling of
the military judge as it pertains to the suppression of the iPhone is SET ASIDE and
the record of trial will be returned to the military judge for action consistent with

                                                            
4
  “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.”


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MITCHELL – ARMY 20150776
 
this opinion. We make no ruling as to the admissibility of the iPhone or the
evidence derived therefrom. The military judge may, sua sponte or on request of a
party, permit additional evidence and argument on the issue of the whether
appellee’s act of unlocking the iPhone was “testimonial,” whether appellee was in
custody when he unlocked the cell phone, or any other matter relevant to the
suppression motion or to the resolution of this case. The military judge shall make
detailed findings of fact and conclusions of law to support her decisions on these
matters. The trial may then proceed or the United States may again pursue appeal
under Article 62, UCMJ, if appropriate.

       Senior Judge MULLIGAN and Judge HERRING concur.

                                                                               
                                       FOR THE COURT:
                                       FOR THE COURT: 



                                       .JOHN P. TAITT
                                       JOHN    P. TAITT
                                        Chief Deputy Clerk of Court
                                       Deputy Chief Clerk of Court  




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