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

                          Misc. Dkt. No. 2016-16
                         ________________________

                           UNITED STATES
                                 Appellant
                                     v.
                            Chad A. BLATNEY
             Senior Airman (E-4), U.S. Air Force, Appellee
                         ________________________

      Appeal by the United States Pursuant to Article 62, UCMJ
                          Decided 22 May 2017
                         ________________________

Military Judge: Christina M. Jimenez.
SpCM convened at Dyess Air Force Base, Texas.
For Appellant: Major Mary Ellen Payne, USAF (argued); Colonel
Katherine E. Oler, USAF; Gerald R. Bruce, Esquire.
For Appellee: Major Johnathan D. Legg, USAF (argued); Colonel Jef-
frey G. Palomino, USAF.
Before DREW, J. BROWN, and HARDING, Appellate Military Judges.
Senior Judge J. BROWN delivered the opinion of the court, in which
Chief Judge DREW and Judge HARDING joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

J. BROWN, Senior Judge:
   The Government brings this appeal under Article 62, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 862, asserting the military judge erred
as a matter of law by suppressing the contents of a digital copy of data from
               United States v. Blatney, Misc. Dkt. No. 2016-16


the cell phone of Senior Airman Blatney—the accused below and Appellee in
this action. The Government asserts that an investigator’s request for Appel-
lee to unlock his cell phone, following Appellee’s voluntary consent to search
that same cell phone, did not constitute interrogation and should not have
been suppressed. For the reasons set forth in our court’s recent published de-
cision in United States v. Robinson, No. ACM 38942 (A.F. Ct. Crim. App. 15
May 2017), available at http://afcca.law.af.mil/content/index.html, we vacate
the military judge’s ruling and thereby grant the Government’s appeal. 1

                               I. BACKGROUND
    Appellee is charged with one specification of wrongfully using cocaine in
violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The day before trial, trial
defense counsel filed a pretrial motion to suppress the Universal Forensic Ex-
traction Device (UFED) report of Appellee’s iPhone and all derivative evi-
dence therefrom.
    After the presentation of evidence and argument by counsel, the military
judge granted the Defense motion, issuing an 18-page ruling. The military
judge later supplemented the original ruling with two pages of additional
facts. Though the Government disagrees with the military judge’s conclusions
of law, the Government does not assert that any of the military judge’s find-
ings of fact were clearly erroneous.

                II. JURISDICTION AND STANDARD OF REVIEW
    This court has jurisdiction to hear this appeal under Article 62(a)(1)(B),
UCMJ, 10 U.S.C. § 862(a)(1)(B), which authorizes the Government to appeal
“[a]n order or ruling which excludes evidence that is substantial proof of a
fact material in the proceeding” in a court-martial in which a military judge
presides and in which a punitive discharge may be adjudged.
    We review a military judge’s ruling on a motion to suppress evidence for
an abuse of discretion. United States v. Nieto, 76 M.J. 101, 105 (C.A.A.F.
2017) (citing United States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016)).
The military judge’s findings of fact are reviewed for clear error, but her con-
clusions of law are reviewed de novo. United States v. Keefauver, 74 M.J. 230,
233 (C.A.A.F. 2015). “[T]he abuse of discretion standard of review recognizes
that a judge has a range of choices and will not be reversed so long as the de-
cision remains within that range.” United States v. Gore, 60 M.J. 178, 187

1We heard oral argument in this case on 6 April 2017 at the University of Houston
Law Center as part of this court’s Project Outreach.




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(C.A.A.F. 2004). However, “[a] military judge abuses [her] discretion when
[her] findings of fact are clearly erroneous, when [she] is incorrect about the
applicable law, or when [she] improperly applies the law.” United States v.
Seay, 60 M.J. 73, 77 (C.A.A.F. 2004). “In reviewing a ruling on a motion to
suppress, we consider the evidence in the light most favorable to the prevail-
ing party.” United States v. Rodriguez, 60 M.J. 239, 246–47 (C.A.A.F. 2004)
(quoting United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996)).
    Because this issue is before us pursuant to a Government appeal, we may
act only with respect to matters of law. Article 62(b), UCMJ. We may not
make findings of fact, as we are limited to determining whether the military
judge’s factual findings are clearly erroneous or unsupported by the record.
United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995). “When a court is
limited to reviewing matters of law, the question is not whether a reviewing
court might disagree with the trial court’s findings, but whether those find-
ings are ‘fairly supported by the record.’” Gore, 60 M.J. at 185 (quoting United
States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985)).
    For purposes of this appeal, the pertinent facts as found by the military
judge are not in dispute, and we accept those findings of fact as they are not
clearly erroneous. Consequently, the sole issue before this court is a question
of law that we review de novo.

III. THE MILITARY JUDGE’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
    The Air Force Office of Special Investigations (AFOSI) began this investi-
gation after learning Appellee tested positive in an urinalysis. After Appellee
reported to AFOSI for an interview, the agents, pursuant to normal operating
procedure, searched and removed Appellee’s property from his possession
prior to placing him in the interview room. The two agents who searched Ap-
pellee took his personal property—which consisted of his keys, iPhone, and
miscellaneous items—and placed it on a table next to the interview room.
   Appellee was then taken into the interview room. He was not free to
leave. The interview was recorded. An investigator read the Article 31,
UCMJ, 10 U.S.C. § 831, rights advisement card to Appellee, and he unequiv-
ocally invoked his right to counsel.
    Following that invocation, investigators asked Appellee whether he con-
sented to the search of his cellular phone, vehicle, and residence. Appellee
consented to the search of those items. The military judge concluded that Ap-
pellee freely and voluntarily gave consent to search these items.
   Investigators then retrieved the standard Air Force consent forms and
began filling out the forms with the assistance of Appellee. After completing
the written forms, an agent asked Appellee if he had a lock on his phone and


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he responded that he did. The agent then stepped out of the interview room,
retrieved Appellee’s iPhone that was on the table, and walked back into the
interview room while holding the iPhone toward Appellee. The following ex-
change occurred:
       AFOSI:      If you won’t mind a, just unlocking it [the accused
                   took the phone handed to him] and also just turning
                   it off, the lock or whatever for me.
       ACC:        Okay.
       AFOSI:      Appreciate that.
       ACC:        Do you know how to turn the lock off man? [raises
                   voice to agents who have departed the room]
       AFOSI:      A, gosh, go settings, . . .
       AFOSI:      Passcode [points to the phone screen]
       ACC:        Oh.
       AFOSI:      Enter it, enter your passcode again and then it will
                   say turn off.
       ACC:        Okay, there it is. This.
       AFOSI:      Should be good.
       ACC:        Yep, there you go.
    Investigators ultimately recovered several text messages from Appellee’s
cellular phone regarding his urinalysis test. It was these messages that Ap-
pellee sought to suppress and that the Government sought to introduce at
trial.
    The military judge concluded that Appellee was in custody and remained
in custody for the duration of the interview, including during the subsequent
requests for consent to search. Further, the military judge found that Appel-
lee unequivocally invoked his right to counsel prior to investigators request-
ing consent to search his personal belongings. She also determined that the
request for consent was permissible and, under the totality of the circum-
stances, Appellee voluntarily consented to the search of his property, to in-
clude the cell phone at issue in this appeal. 2


2 The military judge did not make a specific finding as to whether the accused’s deci-
sion to unlock his phone was voluntary. Although the military judge’s ruling suggest-
ed this too was voluntary, the military judge can clarify this finding upon further re-
view.




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    The military judge then concluded, however, that the subsequent request
for Appellee to unlock his phone was improper as it constituted a re-initiation
of questioning and the act of unlocking the phone constituted a non-verbal
statement. The military judge’s specific rationale, apparently relying primari-
ly on this court’s prior unpublished decision in United States v. Bondo, No.
ACM 38438, (A.F. Ct. Crim. App. 18 Mar. 2015) (unpub. op.), available at
http://afcca.law.af.mil/content/opinions_cnm_2015.html, was:
       [A]fter the accused’s invocation and authorization to consent to
       search, the communications initiated by AFOSI violated the ac-
       cused’s Fifth Amendment rights. The request by [AFOSI] to
       have the accused use his passcode to unlock the cell phone was
       more than an extension of the original request for consent to
       search. It was more than routine incidents of a custodial rela-
       tionship. [The agent] wanted to access the accused’s phone and
       knew incriminating evidence was a reasonable consequence of
       such questioning. Therefore, the nonverbal statement made by
       the accused unlocking his cell phone (the act of typing his
       passcode) is not admissible. Accordingly, all information gath-
       ered from his phone is excluded and inadmissible.
    Although the military judge did not articulate what information was pur-
portedly communicated by unlocking the phone, Appellee asserts on appeal
that the act of unlocking the phone communicated that Appellee knew the
passcode to his own cell phone, and Appellee further claims that such
knowledge implicitly suggests that: (1) the iPhone was passcode protected,
(2) without the passcode the iPhone could not be used, (3) Appellee created
the passcode, (4) Appellee was the only person who could use the phone, and
(5) Appellee was the person responsible for anything done with the phone.
    The Government, however, had not yet sought to introduce evidence to
the factfinder that Appellee personally unlocked the cell phone or knew the
passcode, and, during oral argument, the Government asserted that they did
not “need” to introduce Appellee’s responses to the request for consent to
search or his actions unlocking the phone. The Government, instead, seeks
only to admit certain information discovered through the subsequent search
of Appellee’s phone.

                                IV. ANALYSIS
    In light of our recently issued published decision in Robinson, we vacate
the military judge’s decision. We do so not only to permit her to analyze this
issue consistent with that opinion, but also to clarify whether the investiga-
tors request to Appellee to unlock his iPhone constituted interrogation.



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    In Robinson, we considered the similar question of whether a suspect who
has invoked his right to counsel may be asked for the passcode to his phone
when he consents to a search of that phone. Id. at 8. As we noted there, it is
settled law that a request for consent to search is not interrogation, and con-
sent is ordinarily not a “statement.” Id. at 4. Thus, there must be some com-
municative aspect of providing the passcode itself that is reasonably likely to
elicit an incriminating response in order to implicate the Fifth Amendment
privilege against self-incrimination. 3 Id. at 10-11. We held that, under the
facts of that case, the agent’s request for a passcode was not reasonably likely
to result in an incriminating response because “there was no dispute as to
Appellant’s ownership, dominion, or control over the phone . . . .” Id. at 11.
Thus, the request for the passcode “did not constitute ‘interrogation’ in viola-
tion of the Fifth Amendment.” Id. Ultimately, the court concluded that the
military judge did not err when he denied Robinson’s motion to suppress the
results of that search. Id.
    Though we recognize the similarities of this case with Robinson, we also
acknowledge that it remains a fact-specific determination whether asking a
suspect to unlock a device he has previously consented to have searched is
reasonably likely to elicit an incriminating response. The military judge’s
finding of fact was ambiguous as to this issue and fails to explain how, under
the facts of this case, Appellee’s entry of his passcode was, itself, an incrimi-
nating communication. In the analysis portion of the military judge’s ruling,
she did summarily refer to “further OSI-initiated interrogations.” Unfortu-
nately, she failed to analyze or consider why further questions constituted an
interrogation under the specific facts and circumstances of this case. Despite
this legal conclusion, the supplemental findings of fact supported that the
identity and location of Appellee’s phone—as well as his ownership, domin-
ion, and control over it—were already established and not in dispute. If what
was communicated by Appellant in unlocking the phone was not in dispute, it
is difficult to ascertain the basis for the military judge’s determination—if
indeed there was one—that any of the post-invocation questions and requests
constituted interrogation. 4




3   U.S. CONST. amend. V.
4We acknowledge that this was likely the result of the military judge relying on this
court’s prior decision in United States v. Bondo, No. ACM 38438, (A.F. Ct. Crim. App.
18 Mar. 2015) (unpub. op.), available at http://afcca.law.af.mil/content/opinions_cnm_
2015.html. Since the military judge’s ruling in this case, however, we have found the
analysis in Bondo unpersuasive. Robinson, slip op. at 10.




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    Furthermore, while the military judge ruled that Appellee’s rights were
violated based on a reinitiation of communication, we found it unnecessary in
Robinson to determine whether requesting the passcode under the facts of
that case constituted a reinitiation of communication representing a desire to
open a more generalized discussion related to the investigation, see United
States v. Hutchins, 72 M.J. 294, 298 (C.A.A.F. 2013). This was because, in
Robinson, no post-invocation generalized discussion—or incriminating state-
ment—ever occurred. Id.; see also United States v. Griffing, No. ACM 38443,
2015 CCA LEXIS 101 at *12–13, n.7 (A.F. Ct. Crim. App. 23 Mar. 2015) (un-
pub. op.). This same rationale would apply equally here if, indeed, nothing
about the act itself of entering the password communicated, under the cir-
cumstances, an incriminating statement. In other words, whether agents or
the suspect re-initiated communication only becomes relevant if the suspect
ultimately communicated an incriminating statement to the agents.
    Upon remand, the military judge will first need to determine whether,
under the facts and circumstances of this case, Appellee’s act of entering his
password itself—not what was found on the phone—communicated an in-
criminating statement. If the military judge concludes it did—for reasons not
yet clear on this record—only then would she need to analyze whether that
incriminating statement followed an impermissible reinitiation by agents. 5

                                 V. CONCLUSION
    Accordingly, the appeal of the United States under Article 62, UCMJ, is
GRANTED. The military judge’s ruling to grant the Defense motion to sup-
press the contents of the UFED report and all derivative evidence therefrom
is VACATED, and the record of trial is returned to The Judge Advocate Gen-
eral for remand to the convening authority and delivery to the military judge
for further proceedings consistent with this opinion.


                FOR THE COURT



                MICAH L. SMITH
                Deputy Clerk of the Court


5 We also note that in Robinson, unlike here, there was an express finding that Rob-
inson voluntarily provided his passcode. Id. at 7. Here, should the military judge up-
on remand find otherwise—that Appellee’s inputting his passcode was involuntary—
a different analysis would apply to whether the subsequent search was lawful.




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