                UNITED STATES NAVY-MARINE CORPS
                   COURT OF CRIMINAL APPEALS
                        WASHINGTON, D.C.
                                   Before
                F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                          Appellate Military Judges

                         UNITED STATES OF AMERICA

                                        v.

                           GIOVANNI MAZA
               GUNNERY SERGEANT (E-7), U.S. MARINE CORPS

                               NMCCA 201300297
        Review Pursuant to Article 62(b), Uniform Code of Military Justice,
                                10 U.S.C. 862(b)

Military Judge: CDR R.P. Monahan, Jr., JAGC, USN.
Convening Authority: Commanding General, Training Command,
Marine Corps Base Quantico, VA.
For Appellant: Maj Paul Ervasti, USMC.
For Appellee: LT Jennifer Myers, JAGC, USN.

                               22 January 2014

       ---------------------------------------------------
                  PUBLISHED OPINION OF THE COURT
       ---------------------------------------------------

    JAMISON, Judge:

                                I. Introduction

      This case is before us on a Government interlocutory
appeal, pursuant to Article 62, Uniform Code of Military
Justice, 10 U.S.C. § 862, and RULE FOR COURTS-MARTIAL 908, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). The appellee, Gunnery
Sergeant Giovanni F. Maza, U.S. Marine Corps, is currently
charged with four specifications of a violation of a lawful
general regulation and two specifications of sexual assault, in
violation of Articles 92 and 120(b), Uniform Code of Military
Justice, 10 U.S.C. §§ 892 and 920(b). 1

1
  The appellee was originally charged with five specifications of a violation
of a lawful general regulation, one specification of a violation of a lawful
     Prior to trial, the appellee moved to suppress his 22
October 2012 oral and written statements made to Special Agent
(SA) KS, U.S. Army Criminal Investigation Command (CID), Fort
Leonard Wood, Missouri, based on SA KS’s failure to honor the
appellee’s request for counsel. On 12 June 2013, the military
judge denied the appellee’s motion to suppress. On 17 June
2013, the appellee pled guilty to Charge I and its sole
remaining specification (violation of a lawful general order by
wrongfully engaging in an unprofessional relationship with a
student), and the case proceeded to trial by a panel of officer
members on the remaining charged offenses. On 19 June 2013, the
appellee entered into a stipulation of fact admitting to oral
and vaginal sex with the alleged victim, Private First Class
(PFC) KL (KL). Prosecution Exhibit 19.

     Following the presentation of its case-in-chief, the
Government rested and the appellee began his case-in-chief.
After four days of testimony, the appellee moved to compel the
production of additional witnesses. On 21 June 2013, the
military judge granted the motion for production of additional
witnesses and continued trial until 17 July 2013.

     On 26 June 2013, the Court of Appeals for the Armed Forces
(CAAF) handed down its decision in United States v. Hutchins, 72
M.J. 294 (C.A.A.F. 2013). Believing that Hutchins may affect
the appellee’s prior unsuccessful motion to suppress, the
military judge sua sponte directed both parties to address the
potential impact of the holding in Hutchins. In response, the
appellee submitted a renewed motion to suppress his oral and
written statements. Additionally, the appellee, for the first
time, moved to suppress his DNA sample arguing that following
his oral and written statements to CID agents, his consent to
the agents taking a buccal swab was involuntary.



general order, and two specifications of sexual assault. On 17 June 2013,
the military judge dismissed Specification 1 of Charge I on the basis that it
was multiplicious with Specification 1 of Additional Charge II. Record at 36
of Vol. IV. The appellee pled guilty to the remaining specification under
Charge I (violation of lawful general order by wrongfully engaging in an
unprofessional relationship with a student, KL), excepting the following
words: “between on or about 21 September 2012 and.” Id. at 54 of Vol. IV.
Following the providence inquiry, the military judge found the appellee
guilty of Charge I and its specification as excepted and the Government moved
to withdraw the excepted words. Id. at 77 of Vol. IV. Because the original
record in this case is not consecutively paginated, citations reflect both
the volume and page number.


                                      2
      On 10 July 2013, the military judge reconsidered his prior
ruling and concluded that Hutchins expanded the Edwards per se
rule 2 to prohibit law enforcement from engaging with an accused
post-invocation of counsel in any “‘communication, exchange[],
or conversation[]’ that may . . . lead to further
interrogation.” 3 As a result, the military judge suppressed the
appellee’s oral and written statements to SA KS. Additionally,
the military judge suppressed the appellee’s DNA sample taken
from the buccal swab as derivative evidence of his suppressed
statements. Appellate Exhibit CXX at 24.

     On 11 July 2013, the Government filed its written notice of
appeal pursuant to R.C.M. 908. In its interlocutory appeal, the
Government argues that the military judge abused his discretion
in ruling that Hutchins requires, as a matter of law, the
suppression of the appellee’s oral and written statements to SA
KS. Additionally, the Government argues that even assuming the
appellee’s statements must be suppressed in light of Hutchins,
the military judge abused his discretion in suppressing the
appellee’s DNA evidence as derivative evidence. 4

     After carefully considering the record, the military
judge’s findings of fact and conclusions of law, the submissions
of the parties, and the excellent oral argument by both parties,
we conclude that the military judge erred in suppressing the
appellee’s statements to SA KS. We disagree with the military
judge’s legal conclusion that Hutchins created a new expansion
of the Edwards per se rule and therefore suppression of the
appellee’s oral and written statements was required.
Accordingly, we hold that under the circumstances of this case,
SA KS did not reinitiate communication with the appellee and
thereby trigger an Edwards violation. Additionally, we conclude
that the military judge erred by suppressing the appellee’s

2
  The Edwards rule is a judicial prophylactic measure that creates a per se
bar prohibiting police from interrogating a suspect once he invokes his right
to counsel, unless the suspect initiates further communication with police.
Edwards v. Arizona, 451 U.S. 477 (1981).
3
    Appellate Exhibit CXX at 10 (quoting Hutchins, 72 M.J. at 298).
4
  The specific issues raised by the Government are: (1) “Did the Military
Judge err in finding that CAAF’s decision in United States v. Hutchins
compelled the conclusion that [the appellee’s] statement must be suppressed,
because [the appellee] did not initiate further communication with law
enforcement after he had invoked his right to counsel?” (2) “Even assuming
arguendo that [the appellee’s] statement must be suppressed, did the military
judge err in ruling that the physical DNA evidence must also be suppressed?”
Government Brief on Interlocutory Appeal of 20 Aug 2013 at 2-3.


                                        3
buccal cells as derivative evidence of the Edwards violation
rather than evaluating whether the appellee’s consent to seize
his buccal cells was freely and voluntarily given.

                     II. Background: Issue I

     The majority of the pending charges stem from an encounter
between the appellee and the alleged victim, KL, which occurred
during the early morning hours of 21 October 2012. The
appellee, an instructor and a staff noncommissioned officer-in-
charge, was standing duty as the Command Duty Officer for the
Marine Detachment. KL, a “Marine Awaiting Training,” had been
assigned fire watch duty for the female barracks. While on
duty, the two left to inspect the barracks. The appellee’s and
KL’s accounts of what happened during the inspection of the
barracks rooms differ and are not relevant to this appeal.
Later that day, KL made allegations of sexual assault and sexual
harassment against the appellee. Based on KL’s allegations, SA
KS sought to interview the appellee the following day. Upon
being advised of his rights under Article 31(b), UCMJ, the
appellee requested counsel. Following various exchanges between
SA KS and the appellee, which are the subject matter of this
interlocutory appeal, the appellee provided a ten-page sworn
statement admitting to various sexual acts with KL, but claiming
that KL consented. AE XX at 6-19.

     In pretrial litigation, the appellee moved to suppress his
oral and written statements. AE XX. The Government opposed the
motion, AE XXI, and called SA KS as a witness in support of its
opposition. Following SA KS’s testimony, the appellee testified
and trial defense counsel conceded that SA KS’s testimony had
been “largely corroborated.” Record at 262 of Vol. III. The
military judge made extensive findings of fact as to Issue I and
later re-affirmed those same findings in his reconsideration
ruling. Compare AE IL at 2-4 with AE CXX 2-5.

     Findings of Fact by the Military Judge

     Recited verbatim below are the military judge’s findings
pertaining to Issue I:

     a. [The appellee] has been charged with violating Articles
92 and 120 of the Uniform Code of Military Justice for (1)
sexually harassing Lance Corporal M.R., [KL], and Lance Corporal
M.W., (2) violating various lawful general orders for engaging
in an unprofessional relationship with [KL] and with LCpl M.R.,
and (3) for sexually assaulting [KL].

                                4
     b. On 22 October 2012 at 1006, SA [KS], Fort Leonard Wood
Army CID, attempted to interview the accused at the base CID
office.

     c. Prior to the attempted interview, CID personnel
instructed the accused to lock up his belongings in a locker.
Among the belongings the accused locked up was his cell phone.
The accused retained the key to the locker.

     d. Prior to the attempted interview that occurred at
approximately 1006, SA [KS] properly advised the accused of his
Article 31(b) rights for “Cruelty of Subordinates, Forced
Sodomy, Rape of an Adult by Force” by using DA Form 3881 and
asking the accused to read aloud and initial after each of his
rights.

     e. The accused invoked his right to counsel and SA [KS]
ceased his efforts to question him. The accused did not invoke
his right to remain silent.

     f. SA [KS] next asked the accused if he would consent to
the search of his body to seize DNA evidence, to submit to a
physical examination to search for and seize any physical
evidence regarding the alleged offenses, as well as a search of
his residence and vehicle to seize his clothing and his cell
phone. The accused refused SA [KS]’s request for his consent to
search and/or seize any of the requested items.

     g. SA [KS] then informed the accused that although he had a
right to refuse to consent to the search for and potential
seizure of these items, that he (SA [KS]) had an obligation to
seek a search authorization from a military magistrate to obtain
these items. SA [KS] informed the accused that he was going to
fill out an affidavit and then go see the magistrate to seek the
search authorization. SA [KS] further explained that it would
take approximately 45 minutes for him to draft the affidavit,
that he then would have to find the magistrate, and go over the
affidavit with him. SA [KS] informed the accused that he would
have to remain in the interview room while SA [KS] did these
things, that afterwards he would be “booked,” that SA [KS] would
next have to brief the accused’s command regarding the
investigation, and then arrange for someone from the accused’s
unit to pick him up. SA [KS] further explained to the accused
that while he was waiting for these things to occur, he could
not wander through the CID building alone and that if he needed


                                5
anything such as water or to go to the bathroom, he would need
to knock on the door and let someone know.

     h. SA [KS]’s purpose for telling the accused all the things
that would be transpiring while the accused remained in the
interview room was to give the accused an understanding why he
was going to be sitting in the room for an extended period that
day.

     i. Subsequently, SA [KS] departed the interview room,
leaving the accused alone. While sitting alone in the room, the
accused decided that he would seek out SA [KS] and talk to him
about the allegations. As established by his testimony on the
Defense’s original motion to suppress his statements to SA [KS],
the accused’s purpose in doing so was to distract SA [KS] from
his efforts to search his cell phone, as the accused had
previously had [embarrassing] pictures of himself on the phone.
The accused was concerned that if his phone was forensically
analyzed, these embarrassing photos could be retrieved.

     j. Approximately 15 to 30 minutes after SA [KS] departed,
the accused stepped out of the interview room and informed SA
[G], another CID agent whom the accused encountered, that he had
changed his mind and now wanted to talk to SA [KS] about the
allegations.

     k. SA [G] informed SA [KS] that the accused had approached
him and told him he now wanted to talk. A few minutes later, SA
[KS] returned to the interview room, where the accused told him
that he was now willing to make a statement. When SA [KS] asked
him why he had changed his mind, the accused replied, “I know in
my heart that I have nothing to hide,” or words to that effect.

     l. SA [KS] believed it to be unusual that a suspect would
change his mind about his invocation of his right to counsel as
quickly as the accused had done. Because of this, SA [KS] left
the accused in the interview room and went to his boss,
Assistant Special Agent-in-Charge (ASAC) [C] to see if it would
be permissible to interview the accused subsequent to the
accused’s initial invocation of his right to counsel. ASAC [C]
told SA [KS] that based on the circumstances, SA [KS] could
interview the accused, but first had to administer a new rights
advisement to the accused and seek a waiver of his rights.

     m. At approximately 1119, SA [KS] returned to the interview
room and re-advised the accused of his Article 31(b) rights for
“Cruelty of Subordinates, Forced Sodomy, Rape of an Adult by

                                6
Force” by using a second DA Form 3881 and asking the accused to
read aloud and initial after each of his rights. The accused
waived his rights and so indicated by signing Block 3 under the
waiver section of the document.

     n. Thereafter, the accused provided oral statements and
ultimately, a written and sworn statement, admitting that he had
engaged in a consensual sexual encounter with PFC K.L. on 21
October 2012.

     o. In his sworn written statement the accused stated that,
“I feel in my heart I have nothing to hide,” as the reason he
wanted to provide a statement without speaking to a lawyer.

     p. During all relevant time periods, the accused was under
the apprehension of CID. Therefore, he was not free to leave
the CID office, and could reasonably believe that he was not
free to leave.

AE CXX at 2-5.

      Conclusions of Law by the Military Judge

       As discussed above, the military judge initially denied
the appellee’s motion to suppress his oral and written
statements to SA KS. AE IL. He concluded that the appellee was
not interrogated within the meaning of Rhode Island v. Innis,
446 U.S. 291, 301 (1980), and that the appellee initiated the
communication that ultimately led to his waiver under MILITARY RULE
OF EVIDENCE 305, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). AE
IL at 8. The military judge focused on the facts surrounding
who “initiated further communication” as defined in Edwards. 5 He
concluded that the appellee initiated the communication with CID
and therefore no Edwards violation occurred. Id. at 8-10.

     While the defense’s case-in-chief had been continued, the
CAAF decided Hutchins. Believing that Hutchins expanded Edwards
within the military, the military judge reconsidered his earlier
ruling and suppressed the appellee’s statement after concluding
that:

      The Hutchins Court held that the “Edwards rule does
      not merely prohibit further interrogation without the

5
  Edwards, 451 U.S. at 485 (holding that subsequent to an invocation of
counsel, the Edwards per se rule does not apply if an “accused himself
initiates further communication, exchanges, or conversations with the
police”).

                                      7
     benefit of counsel, it prohibits further
     ‘communication, exchanges, or conversations’ that may
     . . . lead to further interrogation.’” In doing so,
     the Hutchins Court appears to have established a
     bright line rule, not limited to the facts of that
     case, that after a suspect invoked his right to
     counsel, a military court must assess whether or not
     the police opened a more “generalized discussion
     relating directly or indirectly to the investigation”
     or instead initiated inquiry related to “routine
     incidents of the custodial relationship.”

AE CXX at 10 (quoting Hutchins, 72 M.J. at 298) (emphasis
in original)).

     The military judge took no additional evidence on the
motion, adopted his earlier findings of fact, and largely
re-affirmed his prior conclusions of law. In stating his
rationale, the military judge’s legal basis for
reconsideration relied exclusively on his interpretation of
Hutchins and its applicability to the appellee’s case:

          But for the Hutchins Court’s recent
     interpretation of the Edwards rule, which established
     a bright line rule prohibiting criminal investigators
     from requesting permission to search from a suspect
     after he invokes his right to remain silent, this
     Court would reaffirm its previous ruling that the
     accused was the one who initiated further
     communication with SA [KS], and that . . . the
     accused’s ultimate waiver of his right to counsel was
     valid as it was knowing and intelligent . . . .

AE CXX at 18(emphasis added).

        III. Jurisdiction, Scope, and Standard of Review

     Jurisdiction

     Both parties agree that we have jurisdiction to act on this
interlocutory appeal. Article 62(a)(1)(B), UCMJ, confers upon
this court jurisdiction over Government appeals from orders or
rulings by a military judge that “exclude[] evidence that is
substantial proof of a fact material in the proceeding.” The
legislative history of Article 62 and the CAAF’s interpretation
of Article 62 establish that Congress intended Article 62 to be

                                8
applied in the same manner as the Criminal Appeals Act, 18
U.S.C. § 3731. United States v. Brooks, 42 M.J. 484, 486
(C.A.A.F. 1995); see also United States v. Lincoln, 42 M.J. 315,
320 (C.A.A.F. 1995). In other words, Article 62, UCMJ, ensures
that the Government has the same opportunity to appeal adverse
trial rulings that it has in federal civilian criminal
proceedings. United States v. Lopez de Victoria, 66 M.J. 67, 71
(C.A.A.F. 2008). To invoke jurisdiction under 18 U.S.C. § 3731,
the relevant United States Attorney must certify that a federal
appeal is taken because the evidence excluded is substantial
proof of a material fact. The military justice system includes
essentially the same requirement. See R.C.M. 908(b)(3). In
addition, the Judge Advocate General’s representative must
decide whether to file the appeal. R.C.M. 908(b)(6). Here, we
must determine whether the appellee’s statements to SA KS,
standing alone, are “substantial proof of . . . fact[s] material
in the proceeding.” Art. 62(a)(1)(B), UCMJ. We conclude that
they are.

     Admissions of an accused represent a unique source of
strong evidentiary weight. See United States v. Wuterich, 67
M.J. 63, 78 (C.A.A.F. 2008) (recognizing the unique nature of an
accused’s admissions). While the Government had not, at the
time of filing its interlocutory appeal, moved to admit the
appellee’s sworn statement (PE 13 for identification), both
parties entered into a stipulation of fact following the
appellee’s initial unsuccessful motion to suppress. In the
stipulation, the appellee admitted to oral and vaginal sex with
KL. PE 19. 6 We have no doubt that the appellee would not have
entered into this stipulation had he prevailed on his
suppression motion in the first instance. Thus, the
certification by the trial counsel and the decision of the Judge
Advocate General’s representative to perfect this appeal are
sufficient to invoke jurisdiction as effectively as the
certification of a United States Attorney under the Criminal
Appeals Act. See United States v. Scholz, 19 M.J. 837, 841
(N.M.C.M.R. 1984) (holding that “[i]n an interlocutory appeal,
it is beyond the scope of this Court to speculate as to what
weight or importance a particular piece of evidence might have
at trial”). Accordingly, we conclude we have jurisdiction to
consider this appeal and move to the scope of that review.


6
  Additionally, the stipulation contained an acknowledgement that the
appellee’s DNA was seized and “maintained in accordance with correct law
enforcement procedures . . . .” PE 19 at 1-2. The stipulation was published
to the members on 19 June 2013. Record at 14 of Vol. VI.


                                     9
      Article 62(b), UCMJ, Scope of Review

     When reviewing matters under Article 62(b), UCMJ, we act
only with respect to matters of law. United States v. Baker, 70
M.J. 283, 287-88 (C.A.A.F. 2011) (citing United States v. Gore,
60 M.J. 178, 185 (C.A.A.F. 2004)). We may not find additional
facts and cannot substitute our own interpretation of the facts.
United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007).
Thus, we are bound by the military judge’s findings unless such
findings are clearly erroneous. Findings are “clearly
erroneous” when they are not “fairly supported by the record.”
Gore, 60 M.J. at 185 (internal citations and quotation marks
omitted). If findings are incomplete or legal issues have not
been considered by the military judge, the “‘appropriate remedy
. . . is a remand for clarification’ or additional findings.”
United States v. Kosek, 41 M.J. 60, 64 (C.M.A. 1994).

     Standard of Review: Motion to Suppress

     We review a military judge's ruling on a motion to suppress
for an abuse of discretion. Baker, 70 M.J. at 287. An abuse of
discretion occurs “when: (1) the findings of fact upon which
[the military judge] predicates his ruling are not supported by
the evidence of record; (2) if incorrect legal principles were
used; or (3) if his application of the correct legal principles
to the facts is clearly unreasonable.” United States v. Ellis,
68 M.J. 341, 344 (C.A.A.F. 2010) (citation omitted). But we
review the military judge’s conclusions of law de novo,
including his conclusion as to the voluntariness of the
statement. United States v. Chatfield, 67 M.J. 432, 437
(C.A.A.F. 2009) (citing Arizona v. Fulminante, 499 U.S. 279, 287
(1991)) (additional citation omitted). An inquiry into
voluntariness assesses “the totality of all the surrounding
circumstances – both the characteristics of the accused and the
details of the interrogation.” Schneckloth v. Bustamonte, 412
U.S. 218, 226 (1973); see also United States v. Freeman, 65 M.J.
451, 453 (C.A.A.F. 2008).

     In suppression motions premised on a lack of voluntary
consent, we determine whether consent was voluntary based on all
the circumstances. United States v. Wallace, 66 M.J. 5, 9
(C.A.A.F. 2008) (citing Schneckloth, 412 U.S. at 226-27). The
Government bears the burden of demonstrating voluntary consent
by clear and convincing evidence. MIL. R. EVID. 314(e)(5).
                     IV. Discussion: Issue I




                               10
     In this case, neither party challenges the military   judge’s
findings of fact as clearly erroneous, but they disagree   as to
his conclusions of law. After careful consideration, we    find
the military judge's findings of fact to be supported by   the
record, not clearly erroneous, and we adopt them.

     With regard to the military judge’s conclusions of law, the
Government asserts that Hutchins does not require the
suppression of the appellee’s statements because, under the
facts of this case, the appellee himself initiated further
communication with CID. Additionally, the Government asserts
that Hutchins was limited to its facts and that the military
judge erred when he concluded that Hutchins announced a bright
line expansion of the Edwards per se rule.

     In Edwards v. Arizona, 451 U.S. 477, 485 (1981), the
Supreme Court created a bright-line prophylactic judicial rule
barring police from interrogating an accused in custody once he
clearly asserts his right to counsel, unless an attorney is
provided, or “the accused himself initiates further
communication, exchanges, or conversations with the police.”
See MIL. R. EVID. 305(g)(2)(B)(i). The purpose of the Edwards
prophylactic rule is to preserve “the integrity of an accused’s
choice to communicate with police only through counsel . . . .”
Patterson v. Illinois, 487 U.S. 285, 291 (1988).

     In this case, no attorney was made available to the
appellee post-invocation of counsel. Thus, the relevant
analysis under Edwards is, first, whether CID agents
interrogated the appellee post-invocation or whether “the
[appellee] himself initiate[d] further communication, exchanges,
or conversations” with the agents. Edwards, 451 U.S. at 484-85.
Second, we must determine whether the appellee subsequently
knowingly and intelligently waived his right under the “totality
of the circumstances.” Oregon v. Bradshaw, 462 U.S. 1039, 1045-
46 (1983). We conclude -- as did the military judge in his
original ruling -- that the appellee himself initiated further
communication with SA KS and that the appellee knowingly and
intelligently waived his previously asserted right to counsel.
Accordingly, we hold that the military judge erred in
suppressing the appellee’s statements based on his erroneous
belief that the holding in Hutchins compelled such a result.



     A. The Edwards Rule


                               11
     Because we conclude that the military judge misinterpreted
Hutchins in ruling that Hutchins expanded the Edwards rule in
the military, we begin with an analysis of the Edwards rule. We
then consider the evolutionary trajectory of Edwards as
interpreted by subsequent Supreme Court cases. Next, we
consider cases by our superior court that have interpreted the
Edwards rule within the military.

     To begin our analysis, we move first to the heart of the
Edwards holding:

     We further hold that an accused, such as Edwards,
     having expressed his desire to deal with the police
     only through counsel, 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.

     While subject to a custodial interrogation, Mr. Edwards
invoked his right to counsel. Following his invocation, Mr.
Edwards was taken to county jail. The next morning (20 January
1976), two detectives sought to speak with Mr. Edwards.
Although he replied that he did not want to speak to anyone, the
guard told him that “‘he had’ to talk” to them. Id. at 479.
Mr. Edwards was again informed of his rights under Miranda,
waived them, and made an incriminating statement. The Supreme
Court concluded that Mr. Edwards had been interrogated post-
invocation and that his subsequent waiver was invalid.

     In defining the contours of the Edwards rule, the Supreme
Court emphasized that had Mr. Edwards “initiated the meeting
[with the detectives] on January 20,” the Edwards bar would not
have applied. Id. at 485. Additionally, the Court stated that
“[a]bsent such interrogation, there would have been no
infringement of the right that [Mr.] Edwards invoked and there
would be no occasion to determine whether there had been a valid
waiver.” Id. at 486 (emphasis added).

     Two years later, the Supreme Court analyzed the Edwards
rule within the context of a defendant-initiated communication
with the police post-invocation of counsel. In Oregon v.
Bradshaw, a four-Justice plurality emphasized the phrase
“communication, exchanges, or conversations” from Edwards and
specifically linked it to the actions of the defendant, Mr.

                               12
Bradshaw, not the police. 7 This contextual link between the
above phrase in Edwards and Mr. Bradshaw’s conduct animates the
Bradshaw holding that Mr. Bradshaw himself initiated
communication with the police. To provide clarity to this
concept, the Bradshaw plurality again quoted to Edwards:

      If, as frequently would occur in the course of a
      meeting initiated by the accused, the conversation is
      not wholly one-sided, it is likely that the officers
      will say or do something that clearly would be
      ‘interrogation.’ In that event, the question would be
      whether a valid waiver of the right to counsel and the
      right to silence had occurred, that is, whether the
      purported waiver was knowing and intelligent and found
      to be so under the totality of the circumstances,
      including the necessary fact that the accused, not the
      police, reopened the dialogue with the authorities.

Id. at 1044-45 (quoting Edwards, 451 U.S. at 486 n.9
(emphasis added)).

     Because Bradshaw was a plurality opinion, we believe it
important to consider Justice Powell’s concurrence. See
generally Marks v. United States, 430 U.S. 188, 193 (1977)
(holding that “[w]hen a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent of five
Justices, the holding of the Court may be viewed as that
position taking by those Members who concurred in the judgments
on the narrowest grounds”)(citation and internal quotation marks
omitted). In Bradshaw, eight Justices -- four in the plurality
and four dissenters -- subscribed to the view that Edwards-type
cases require a two-step analytical framework (step (1):
whether there was police-initiated interrogation or accused-
initiated communication post-invocation of counsel and step (2):
whether the subsequent waiver was knowing and intelligent under
“the totality of the circumstances”). Justice Powell was the
lone Justice who rejected the two-step approach. 8 Because eight

7
  “We further hold that an accused, such as [the defendant], having expressed
his desire to deal with the police only through counsel, 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.” Bradshaw, 462 U.S. at 1043
(quoting Edwards, 451 U.S. at 484-85 (footnote omitted) (emphasis added)).
8
  In Edwards, Justice Powell concurred in the result, but did not join the
Court’s opinion because he “was not sure what it mean[t]”. Edwards, 451 U.S.
488 (Powell, J., concurring in the result). In Bradshaw, Justice Powell

                                     13
Justices in Bradshaw adopted the Edwards two-step analytical
approach, we need not determine whether Justice Powell’s
rationale is broader or narrower than the plurality view.

     Nevertheless, Justice Powell’s concurrence in Bradshaw is
illuminating on the “meaning of ‘initiation’” as the central
issue in that case. Id. at 1048 (Powell, J., concurring in the
judgment). The analytical fulcrum point in Bradshaw centered
squarely on the words of Mr. Bradshaw, not the police.
According to Justice Powell, the principal difference between
the four-Justice plurality and the four-Justice dissent in
Bradshaw dealt with Mr. Bradshaw’s post-invocation communication
to police, “what is going to happen to me now?” Id. at 1049.
The four-Justice plurality concluded that Mr. Bradshaw’s
question “evinced a willingness and a desire for a generalized
discussion about the investigation,” id. at 1045-46, while the
four-Justice dissent would require that an accused not only
initiate the communication, but also that the communication be
“about the subject matter of the criminal investigation.” Id.
at 1053 (Marshall, J., dissenting).

     The Supreme Court has revisited the Edwards rule multiple
times since Bradshaw. In Arizona v. Roberson, 486 U.S. 675
(1988), the Court took another opportunity to interpret the
prophylactic contours of the Edwards rule. In Roberson, six
Justices joined the opinion of the Court holding that the
Edwards rule extends to post-invocation interrogation even if
the subject matter of the interrogation concerns a separate
offense unrelated to the initial investigation. Id. at 677.
Although not central to the holding in Roberson, the Court
quoted Edwards within the context of an accused-initiated
communication post-invocation: “[a]s we have made clear, any
‘further communication, exchanges, or conversations with the
police’ that the suspect himself initiates, Edwards v. Arizona,
451 U.S. at 485, are perfectly valid.” Roberson, 486 U.S. at
687 (emphasis added).

     In Arizona v. Mauro, 481 U.S. 520 (1987), the Supreme Court
considered the Edwards rule within the context of police conduct
that did not involve direct questioning. Suspected of killing
his son, Mr. Mauro invoked his right to counsel and questioning
ceased. Mrs. Mauro was being questioned in another room. She

advocated a one-step “totality of the circumstances” approach because he
believed courts “should engage in more substantive inquiries than ‘who said
what first.’” Bradshaw, 462 U.S. at 1051 (Powell, J., concurring in the
judgment).


                                     14
asked whether she could speak with her husband. The police
officer agreed, but insisted on being present in the room. The
Arizona Supreme Court concluded that the police conduct
constituted an interrogation and suppressed Mr. Mauro’s
admissions he had made during the exchange with his wife. The
Supreme Court (five Justices) reversed, concluding that even
though the police “were aware of the possibility” that Mr. Mauro
may incriminate himself, the Supreme Court held that because he
“was not subjected to compelling influences, psychological
ploys, or direct questioning” he was not interrogated as a
matter of law. Id. at 528-29.

     In Minnick v. Mississippi, 498 U.S. 146 (1990), the Supreme
Court (six Justices) extended the Edwards rule to prohibit
police from “reinitiate[ing] interrogation without counsel
present, whether or not the accused has consulted with his
attorney.” Id. at 153. Writing for the Court, Justice Kennedy
repeatedly stated that the prophylactic protections of Edwards
and its progeny apply only within the context of “police-
initiated interrogation.” Id. In this regard, the Court made
it clear that if an accused himself initiates the conversation
post-invocation of counsel, the Edwards rule does not apply:
“Edwards does not foreclose finding a waiver of Fifth Amendment
protections after counsel has been requested, provided the
accused has initiated the conversation or discussions with the
authorities . . . .” Id. at 156.

     In Montejo v. Louisiana, 556 U.S. 778, 795 (2009), the
Supreme Court explicitly overruled Michigan v. Jackson, 475 U.S.
625 (1986), which had held that the Edwards rule applied to the
Sixth Amendment. In defining the prophylactic parameters of
Edwards, the Court re-emphasized that the “Miranda-Edwards
regime” does not apply to “noninterrogative types of
interactions between the defendant and the State . . . .” Id.
The Court in Montejo contextualized the Edwards rule by looking
to its purpose: to preclude police “from badgering defendants
into waiving their previously asserted rights,” id. at 794
(citations omitted), counterbalanced with the “unmitigated good”
of “obtain[ing] uncoerced confessions,” id. at 796 (quoting
McNeil v. Wisconsin, 501 U.S. 171, 181 (1991)).

     In Maryland v. Shatzer, 559 U.S. 98, 105 (2010), the
Supreme Court clarified that the Edwards rule is not
constitutionally-based, but rather a judicially-created
prophylaxis. Accordingly, a near unanimous Supreme Court held
that the protection afforded under the Edwards rule, to the
extent it creates a presumption of an invalid waiver under

                               15
Miranda, is extinguished 14 days following an invocation of the
right to counsel. Id. at 110.

     Within the military, our superior court considered the
Edwards rule in United States v. Harris, 19 M.J. 331 (C.M.A.
1985). In Harris, Chief Judge Everett exhaustively analyzed the
Edwards rule in terms of whether Private Harris “‘initiated’ a
discussion with” law enforcement. Id. at 338. The Harris Court
cited Solem v. Stumes, 465 U.S. 638 (1984), which held that the
Edwards rule -- because it is a judicially-created prophylactic
rule -- did not have retroactive application. On the issue of
initiation post-invocation, the Harris Court emphasized the
Stumes holding: “Edwards established a new test for when that
waiver would be acceptable once the suspect had invoked his
right to counsel: the suspect had to initiate subsequent
communication.” Harris, 19 M.J. at 337 (quoting Stumes, 465
U.S. at 646).

     Since Harris, the CAAF and its predecessor court have
interpreted the applicability of the Edwards rule to fit
military practice; 9 however, clarity vis-à-vis initiation has
remained consistent. Within the context of what constitutes
“initiation,” our superior court has consistently expressed the
test as one focused on an accused-initiated communication. See
e.g. Coleman, 26 M.J. 451, 452 (C.M.A. 1988) (per curiam)
(holding that Edwards precludes further interrogation “unless he
[the accused], himself, initiates further communications);
United States v. Delarosa, 67 M.J. 318, 320 (C.A.A.F. 2009)
(citing Edwards and stating that a suspect who invokes his right
to counsel may not be further interrogated “unless the suspect
himself reinitiated further communication with the police”).


9
  In United States v. Reeves, 20 M.J. 234 (C.M.A. 1985), the Court of Military
Appeals (CMA) expanded the applicability of the Edwards rule to apply to
interrogative conduct by a non-law enforcement commander; see United States
v. Brabant, 29 M.J. 259, 263 (C.M.A. 1989) (concluding that Sergeant
Brabant’s commanding officer’s order that Sgt Brabant attend a meeting
following his invocation of counsel created the “functional equivalent of a
‘reinitiation of interrogation’”); see also United States v. Mitchell, 51
M.J. 234, 237 (C.A.A.F. 1999) (extending applicability of Edwards to
question, “Was it worth it” by Petty Officer Mitchell’s leading chief petty
officer who was there as part of official command brig visit). The CMA has
also created an overseas exception to the Edwards rule. United States v.
Vidal, 23 M.J. 319 (C.M.A. 1987); see United States v Coleman, 26 M.J. 451,
453 (C.M.A. 1988) (holding that a request for counsel made to foreign
authorities is insufficient to trigger Edwards rule even if Army CID agents
were aware of Specialist Coleman’s prior request for counsel made to German
police).


                                      16
     The Court of Military Appeals (CMA) had occasion to analyze
the meaning of “initiation” in United States v. Reeves, 20 M.J.
234 (C.M.A. 1985). Upon being informed of his rights by a CID
agent, PFC Reeves requested counsel and the CID agent terminated
the interview. Later that day, when PFC Reeves was being in-
processed for pretrial confinement, his company commander went
to see PFC Reeves and “talk to [him].” Id. at 235. The CMA
held that PFC Reeves’s company commander had interrogated PFC
Reeves; however, the CMA remanded the case to the lower court as
to whether PFC Reeves “initiated” the conversation with the
company commander, which if true, “would [make PFC Reeves’s
statements] admissible.” Id. at 237 (citing Bradshaw); 10 see
United States v. Jordan, 29 M.J. 177, 191 (C.M.A. 1989) (stating
that “a suspect who is in custody and has requested counsel
cannot be interrogated unless and until he has ‘initiated’ a
discussion”) (Everett, C.J., dissenting) (citations omitted);
see also United States v. Watkins, 34 M.J. 344, 347 (C.M.A.
1992) (plurality) (stating that Specialist Watkins, after having
invoked his right to counsel, “initiated the subsequent exchange
by asking the agent whether he preferred military or civilian
counsel and how much punishment [he] was facing”).

     B. Hutchins and Application of the Edwards Rule

     In Hutchins, the CAAF applied a unique set of facts in
finding an Edwards violation. 11 Sergeant (Sgt) Hutchins was
suspected of being the ring-leader in the killing of an Iraqi
civilian on 26 April 2006 during counter-insurgency operations
in Hamdaniyah, Iraq. On 11 May 2006, Naval Criminal
Investigative Service (NCIS) agents interrogated Sgt Hutchins.
He initially described the killing as a “good shoot,” but when
told that one member of his squad had confessed to the killing
having been unlawful and premeditated, Sgt Hutchins invoked his
right to counsel and NCIS agents terminated the interrogation.
United States v Hutchins, No. 200800393, 2012 CCA LEXIS 93 at
*28-29 (N.M.Ct.Crim.App. 20 Mar 2012), reversed and remanded, 72
M.J. 294 (C.A.A.F. 2013). Following his invocation, Sgt

10
  Upon remand, the U.S. Army Court of Military Review concluded that the
Government had “failed to establish by a preponderance of the evidence that
[PFC Reeves] initiated the conversation with his company commander.” United
States v. Reeves, 21 M.J. 391, 392 (C.M.A. 1985) (appendix). The CMA agreed
and set aside the findings and sentence. Id. at 391 (summary disposition).
11
  For purposes of a full factual rendition, we cite to both the CAAF opinion
and our opinion in Hutchins, United States v. Hutchins, No. 200800393, 2012
CCA LEXIS 93 (N.M.Ct.Crim.App. 20 Mar 2012), reversed and remanded, 72 M.J.
294 (C.A.A.F. 2013).


                                     17
Hutchins was “confined to a trailer under guard.” Hutchins, 72
M.J. at 296-97. He was able to “meet with the chaplain and use
the head and shower facilities outside the trailer, but was not
allowed to use MWR facilities, telephones, computers, the postal
service or other methods of communication.” Hutchins, 2012 CCA
LEXIS 93 at *29.

     On 18 May 2006, NCIS agents approached each member of the
squad to request permissive authorization to search. The same
NCIS agent who had previously interrogated Sgt Hutchins entered
his trailer and asked him whether he would consent to a search
of his belongings. During this interaction, Sgt Hutchins asked
the NCIS agents “if the door was still open to tell his side of
the story.” Id. at *30. The lead NCIS investigator replied
that he could not speak to him because of his earlier invocation
of counsel. Sgt Hutchins replied “that he wanted to speak with
the agents and did not need an attorney.” Id. Nevertheless,
the NCIS agents declined to speak with Sgt Hutchins that
evening. The next day, the NCIS agent brought Sgt Hutchins to
the NCIS agents’ trailer. He was fully advised of his Article
31(b) rights, waived them, and “typed a detailed confession.”
Id.

     In finding an Edwards violation and setting aside Sgt
Hutchins’s conviction, the CAAF held that under the
circumstances, Sgt Hutchins’s statement “was a direct result of
the reinitiation of communication by NCIS” as interpreted by
Edwards and Bradshaw. Hutchins, 72 M.J. at 299.

     C. Application of Edwards to the Appellee’s Case

     In this case, the military judge found, and both parties
agree, that the appellee was subject to a custodial
interrogation and that he invoked his right to counsel, thus
triggering the Edwards rule. We agree. To determine, however,
whether there was an Edwards violation, we proceed to the first
step under Edwards: whether SA KS’s communication with the
appellee post-invocation of counsel -- but prior to the
appellee’s subsequent waiver -- constituted an interrogation.
Edwards, 451 U.S. at 484; MIL. R. EVID. 305(e)(1).

Did SA KS’s Communication Constitute an Interrogation?

     For purposes of this Article 62, UCMJ, appeal, we review de
novo the question of whether SA KS’s communication with the
appellee post-invocation of counsel constituted an
interrogation. Kosek, 41 M.J. at 63. The military judge ruled

                               18
that SA KS’s request for consent to search did not constitute an
interrogation. AE CXX at 14. We agree.

     A request to consent to search does not constitute an
interrogation. See United States v. Burns, 33 M.J. 316, 320
(C.M.A. 1991) (holding that “[b]ecause consent is not a
statement and a request for consent is not an interrogation,
giving consent to search is a neutral fact which has no tendency
to show that the suspect is guilty of any crime”) (citation and
internal quotation marks omitted); United States v. Roa, 24 M.J.
297, 299 (C.M.A. 1987) (stating that since a “request for
consent to search . . . is not interrogation . . . the consent
thereby given is not a statement”); see also United States v.
Cooney, 26 Fed.Appx. 513, 523 (6th Cir. 2002) (noting that there
is unanimous agreement within the federal circuits that
“consenting to a search is not an incriminating statement under
the Fifth Amendment because the consent is not evidence of a
testimonial or communicative nature”) (citations omitted).

     Here, following the appellee’s refusal to consent, SA KS
explained that he was going to request a search authorization
from a magistrate. The military judge concluded that this
explanation by its nature was non-interrogative. We agree.
“‘[I]nterrogation’ under Miranda refers not only to express
questioning, but also to any words or actions on the part of the
police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response . . . .” Innis, 446 U.S. at
301 (footnote omitted). MIL. R. EVID. 305(b)(2) defines
“interrogation” as “any formal or informal questioning in which
an incriminating response either is sought or is a reasonable
consequence of such questioning.”

     The military judge found that SA KS’s purpose for
explaining to the appellee that he would “seek a search
authorization,” was to ensure that the appellee understood “why
he was going to be sitting in the room for an extended period.”
AE CXX at 3-4. This finding was supported by the record and SA
KS’s explanation was made for a proper purpose. See United
States v. McClain, 31 M.J. 130, 133 (C.M.A. 1990) (stating that
“[a]n official seeking consent from a servicemember may explain
that he will attempt to obtain from an appropriate commander or
military judge a search authorization”). This was a one-way
communication with the appellee that neither sought a response,
nor was it “reasonably likely to elicit an incriminating
response from the [appellee].” Innis, 446 U.S. at 301.


                               19
     Having concluded that neither SA KS’s request for consent
to search nor his subsequent explanation that he would seek a
search authorization constituted an interrogation, we move to
the next step in the Edwards analysis: whether the appellee
himself initiated communication with CID agents regarding the
subject matter of the criminal investigation. Prior to doing
so, however, we must evaluate the military judge’s determination
that Hutchins created a new per se rule that mandated
suppression of the appellee’s oral and written statements.

Did Hutchins Expand the Edwards Per Se Rule?

     The military judge ruled that Hutchins expanded the Edwards
rule to per se prohibit “criminal investigators from requesting
permission to search from a suspect after he invokes his right”
to counsel. AE CXX at 18. Specifically, the military judge
focused on the following sentence from Hutchins:

     The Edwards rule does not merely prohibit further
     interrogation without the benefit of counsel, it
     prohibits further “communication, exchanges, or
     conversations” that may . . . lead to further
     interrogation.

Id. at 10 (emphasis added) (quoting Hutchins, 72 M.J. at 298).

     The military judge’s interpretation, however, raises two
separate yet related per se rules. The broader per se rule
appears to stand for the proposition that all law enforcement-
initiated communication -- following invocation of counsel --
violates Edwards, if the subject matter of the communication
relates directly or indirectly to the investigation. The
narrower per se rule, subsumed within the broader one, and the
one that caused the military judge to reconsider his ruling
based solely on Hutchins, stands for the proposition that all
law enforcement requests for consent to search following
invocation of counsel violate Edwards. Based on our analysis of
Hutchins, we address each in turn.

     We do not interpret Hutchins as having created an expanded
per se prophylactic rule within the military. Rather, we
interpret the CAAF as having applied Edwards and Bradshaw to the
unique facts in Hutchins. 12 We find additional support for our

12
  “We hold that the NCIS request to Hutchins for his consent to search
reinitiated communication with Hutchins in violation of his Fifth Amendment
rights as interpreted by the Supreme Court in Edwards . . . and Bradshaw . .
. .” Hutchins, 72 M.J. at 295-96; see also id. at 299-300 (stating that NCIS

                                     20
interpretation based on prior opinions in which the CAAF created
a “new rule” within the military and did so explicitly. See,
e.g., United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006)
(creating “new rule” for purposes of timely post-trial
processing); United States v. Chatman, 46 M.J. 321, 323-24
(C.A.A.F. 1997) (establishing “new rule” to require “colorable
claim of possible prejudice” in certain types of alleged post-
trial processing errors).

     Even if the CAAF did not announce a new per se rule, we are
still required to give every sentence in the Hutchins opinion
its full effect. Thus, we must decide whether the particular
sentence in Hutchins that the military judge considered critical
to his analysis (“The Edwards rule . . . prohibits further
‘communication, exchanges or conversations’ that may . . . lead
to further interrogation”) is dictum or part of its core
holding. 13 See generally United States v. Winckelmann, 73 M.J.
11 (C.A.A.F. 2013) (stating that if particular words in a
Supreme Court opinion are part of its core holding, the CAAF “is
required to follow” it) (Stucky, J., concurring in the result).
If this particular sentence is part of Hutchins’s core holding,
we are required to follow it, or distinguish it. See United
States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996) (holding
that courts of criminal appeals must follow CAAF precedent
regardless of circumstances).

     Admittedly, it is at first glance difficult to ascertain
whether that particular sentence is part of the core holding in
Hutchins. Adding to our analytical challenge is the fact that
with one exception, 14 the CAAF does not rely on or analyze its
prior Edwards-type cases. Additionally, the CAAF does not cite
to the President’s interpretation of the waiver provision of the


reinitiated with Sgt Hutchins in violation of his rights “as interpreted by
the Supreme Court in Edwards . . . and Bradshaw”).
13
  “The Edwards rule does not merely prohibit further interrogation without
the benefit of counsel, it prohibits further ‘communication, exchanges, or
conversations’ that may (and in this case, did) lead to further
interrogation.” Hutchins, 72 M.J. at 298 (quoting Edwards, 451 U.S. at 485).
14
  The CAAF cites to United States v. Applewhite, 23 M.J. 196, 199 (C.M.A.
1987). Hutchins, 72 M.J. at 299 n.8. We do not find Applewhite particularly
instructive on what constitutes an “initiation” following invocation of
counsel. Following Sgt Applewhite’s invocation of his right to counsel, the
CID agent requested that Sgt Applewhite submit to a polygraph examination. A
post-invocation polygraph examination would be a violation of Edwards since a
polygraph examination by its nature is interrogative.


                                     21
Edwards rule. MIL. R. EVID. 305(g)(2)(B). 15 Accordingly, we are
left with the balance of the words in the opinion and the only
two cases upon which the CAAF relied, Edwards and Bradshaw.

     Given the broad interpretation relied upon by the military
judge, this particular sentence from Hutchins effectively
prohibits all post-invocation admissions by an accused if the
police engage in any conversation following an accused’s
invocation. But the CAAF has never foreclosed all law
enforcement comment following an accused invocation of his right
to counsel. See United States v. Young, 49 M.J. 265, 267
(C.A.A.F. 1998) (stating that there is “no blanket prohibition
against a comment or a statement by a police officer after an
invocation of rights”). 16

     To inform our analysis further, we evaluate the analytical
origin of that particular sentence in Hutchins. 17 We believe
that sentence was extrapolated from two sentences in Bradshaw.
462 U.S. at 1045. While we are unclear of the origin of such an
extrapolation, we do note that neither of these two sentences
goes to the core of the Supreme Court’s holding in Bradshaw with
regard to who initiated the communication. 18 There was no doubt
15
   A “waiver of the right to counsel obtained during a custodial interrogation
concerning the same or different offenses is invalid unless the prosecution
can demonstrate by a preponderance of the evidence that –- (i) the accused or
suspect initiated the communication leading to the waiver . . . .” MIL. R.
EVID. 305(g)(2)(B).
16
  In Young, the CAAF suggested that SA S’s parting shot comment following Sgt
Young’s invocation of counsel, “I want you to remember me, and I want you to
remember my face, and I want you to remember that I gave you a chance,” was
not the functional equivalent of an interrogation and did not constitute
reinitiation on the part of the SA S. Young, 49 M.J. at 266-67; see also
United States v. Payne, 954 F.2d 199, 203 (4th Cir. 1992) (rejecting Mr.
Payne’s argument that “statements by law enforcement officials regarding the
nature of the evidence against the suspect constitute interrogation as a
matter of law”).
17
  “The Edwards rule does not merely prohibit further interrogation without
the benefit of counsel, it prohibits further ‘communication, exchanges, or
conversations’ that may (and in this case, did) lead to further
interrogation.” Hutchins, 72 M.J. at 298 (quoting Edwards, 451 U.S. at 485).
18
  The phrase “communication, exchanges, or conversations” is a direct quote
from Edwards (451 U.S. at 485); however, based on our contextual analysis of
Hutchins, the conclusion that the CAAF drew (“Edwards . . . prohibits further
“communication, exchanges, or conversations that may . . . lead to further
interrogation”) appears to have its genesis in the following two sentences
from Bradshaw:

      There are some inquiries, such as a request for a drink of water
      or a request to use a telephone, that are so routine that they

                                      22
Mr. Bradshaw initiated the communication. The issue before the
Court was whether the nature of Mr. Bradshaw’s communication
(“well, what is going to happen to me now”) was sufficiently
particularized to “open up a more generalized discussion
relating directly or indirectly to the investigation.”
Bradshaw, 462 U.S. at 1045. The principal disagreement between
the plurality and the dissent was whether Mr. Bradshaw’s
communication constituted initiation as a matter of law for
purposes of Edwards. A plurality of the Court concluded that
Mr. Bradshaw’s communication “open[ed] up a more generalized
discussion” about the case and with Justice Powell’s vote
concurring in the judgment, the Court reversed the Arizona
Supreme Court. Bradshaw, 462 U.S. at 1046-47. But nothing in
these two sentences from Bradshaw relied upon by the CAAF in
Hutchins, focused on police-initiated communication.

     We find additional support within Bradshaw that the
plurality was primarily focused on accused-initiated
communication. The only two examples specifically cited by the
plurality as insufficient for purposes of initiation –- a
request for a drink of water or a request to use the telephone -
- were specifically linked to accused-initiated communication.
Bradshaw, 462 U.S. at 1045 (“There are some inquires, such as a
request for a drink of water or a request to use a telephone,
that are so routine that they cannot be fairly said to represent
a desire on the part of the accused to open up a more
generalized discussion relating directly or indirectly to the
investigation.”) (emphasis added). We believe these two
examples cited by the plurality are in response to Justice
Marshall’s dissent that Mr. Bradshaw’s communication (“[w]ell
what’s going to happen to me now?”) was not specific enough to
initiate a conversation because it did not sufficiently relate
to “the subject matter of the criminal investigation.” Id. at
1053 (Marshall, J., dissenting). We base our belief on the
facts in Bradshaw, the plurality opinion (conceding that Mr.
Bradshaw’s statement was ambiguous), and Justice Powell’s

      cannot be fairly said to represent a desire on the part of an
      accused to open up a more generalized discussion relating
      directly or indirectly to the investigation. Such inquires or
      statements, by either an accused or a police officer, relating to
      routine incidents of the custodial relationship, will not
      generally “initiate” a conversation in the sense in which that
      word was used in Edwards.

Bradshaw, 462 U.S. at 1045. However, the latter phrase from that
sentence in Hutchins (“that may . . . lead to further interrogation”)
does not appear in this section of Bradshaw.



                                     23
concurrence, without which the holding in Bradshaw cannot be
sustained.

     Having concluded that the aforementioned sentence in
Hutchins is extrapolated from Bradshaw, we next analyze the
broader implications of the military judge’s interpretation of
that particular sentence in Hutchins. Particularly nettlesome
is the word “may” in that sentence (“Edwards rule prohibits . .
. further ‘communication, exchanges or conversations’ that may .
. . lead to further interrogation”) because if one gives “may”
its broadest application to all Edwards-type scenarios as the
military judge did, any police-initiated conversation --
regardless of its subject matter -- that precedes a later
interrogation, forecloses any bona fide attempt by an accused to
“open up a more generalized discussion relating directly or
indirectly to [an] investigation.” Bradshaw, 462 U.S. at 1045.

     We do not believe that our superior court in Hutchins
intended such an expansive use of the word “may” to foreclose
all police-initiated conversation that takes place post-
invocation of counsel. With the exception of that one sentence,
nowhere else within the opinion does the CAAF suggest that all
police-initiated communication that occurs following invocation
of counsel will violate Edwards. Hutchins, 72 M.J. at 298
(stating that “[n]ot all communications initiated by . . . law
enforcement will trigger the protections under Edwards”).
Indeed, such an interpretation could lead to undesirable and
absurd results. For example, a police officer’s offer to a
suspect for a drink of water could foreclose any ensuing reply
that otherwise would constitute a valid attempt to initiate a
conversation on the part of the suspect. Additionally, such an
expansive meaning of the word “may” could void good-faith
attempts on the part of law enforcement to apply the Edwards
rule under MIL. R. EVID 305(g).

     Rather than focusing on one particular sentence, we believe
that the better approach is to consider the entire opinion in
context in an attempt to gain a better understanding of what the
Hutchins court meant by its use of the word “may” within that
sentence. In this regard, we interpret “may” to stand for the
general proposition that there may be certain factual
circumstances, like in Hutchins, where law enforcement-initiated
communication, short of interrogation, “may” violate Edwards.

     Having concluded that within the broader context, the CAAF
did not intend Hutchins to stand for the general proposition
that all police-initiated communication following invocation of

                               24
right to counsel per se violates Edwards, we move to the
narrower question: did Hutchins create a per se rule that all
requests for consent to search that take place following an
accused’s or suspect’s invocation of counsel violate the Edwards
rule?

     To address this narrower question, we look to the entire
opinion in Hutchins and find no indication that the CAAF
intended Hutchins to be read as broadly as the military judge
did. Instead, we interpret Hutchins to apply a unique set of
circumstances to conclude that Sgt Hutchins’s rights under
Edwards were violated. Hutchins, 72 M.J. 298 n.5 (stating that
“[i]t is hard to imagine a situation where [application of
Miranda and Edwards] would be more of a concern than in the
present case” (e.g., held essentially in solitary confinement
within a combat zone of a foreign country, without access to an
attorney, “a phone, the mail system, or other means of
communication”). Key to the Hutchins holding was the CAAF’s
articulation that under the circumstances “[t]his request for
consent to search,” Id. at 299, triggered Edwards protections
and not all requests for consent to search “implicate the Fifth
Amendment.” Id. at n.9 (emphasis added). In fact, the CAAF
seemed to suggest that under the right circumstances, a “simple
request for consent to search” may not trigger Edwards. Id. at
n.10.

     Because we conclude that the CAAF applied the facts in
Hutchins to Edwards and Bradshaw rather than announcing a new
per se prophylactic expansion of the Edwards rule, we apply the
facts of this case to Edwards and its Supreme Court progeny, and
in doing so easily distinguish them from Hutchins. Accordingly,
we move next to consider whether the appellee initiated further
communication for Edwards purposes.

Did the Appellee Initiate Communication Under Edwards?

     In the thirty-two years since Edwards, the Supreme Court
has never extended the Edwards prophylactic rule to bar non-
interrogative interaction between police and a suspect following
that suspect’s request for counsel. Instead, initiation of a
conversation or dialogue between police and an accused post-
invocation of counsel has focused on two distinct questions: (1)
whether the police interrogated the accused post-invocation, or
(2) whether “the accused himself initiate[ed] further




                               25
communication, exchanges, or conversations with the police.” 19
Edwards, 451 U.S. at 485.

     Having concluded that the CAAF in Hutchins did not intend
to establish a new bright-line per se rule expanding the Edwards
rule beyond its well-established parameters, we next analyze the
facts of this case as distinguishable from the unique facts in
Hutchins. The most significant distinction between Hutchins and
this case is that the appellee’s interaction with SA KS
consisted of two discrete transactions for purposes of
evaluating Edwards.

     Unlike the facts in Hutchins, in which the request for
consent to search and Sgt Hutchins’s statement (“is it too late
to give my side of the story”) blended into one continuum, here
there was a significant break of 15 to 20 minutes between the
appellee effectively ending SA KS’s interrogative attempt and
the appellee’s subsequent change-of-heart. Cf. Bobby v. Dixon,
132 S.Ct. 26, 31-32 (2011) (per curiam) (holding that based on
passage of four hours between Mr. Dixon’s un-coerced yet
unwarned statement and his subsequent Mirandized statement, his
subsequent statement was admissible and distinguishable from
Missouri v. Siebert, 542 U.S. 600, 661 (2004) because in Siebert
the “unwarned and warned interrogations blended into one
continuum”).

     It was during these 15 to 20 minutes -- while sitting alone
in the interview room -- that the appellee unilaterally decided
to provide a statement regarding the accusations against him
because he had “nothing to hide.” PE 13 at 4. Specifically,
the appellee, on his own initiative, left the interview room,
found SA G and asked him to locate SA KS and inform him that the
appellee now wanted to provide a statement. SA KS again re-
advised the appellee of his Article 31(b) rights and the

19
  We have been unable to find any Supreme Court case that references the
Edwards rule and quotes the phrase “communication, exchanges, or
conversations” without also linking that particular phrase to actions by the
accused. See Berghuis v. Thompkins, 560 U.S. 370, 407 (2010) (Sotomayor, J.,
dissenting); Shatzer, 559 U.S. at 104; Minnick, 498 U.S. at 150; Butler v.
McKellar, 494 U.S. 407, 420 (1990) (Brennan, J., dissenting in part);
Patterson, 487 U.S. at 291; Roberson, 486 U.S. at 680-81; Mauro, 481 U.S. at
526 (1987); Connecticut v. Barrett, 479 U.S. 523, 535 (1987) (Brennan, J.,
concurring in the judgment); Watkins v. Virginia, 475 U.S. 1099, 1100 (1986)
(Marshall, J., dissenting from the denial of certiorari); Jackson, 475 U.S.
at 626, overruled by Montejo, 556 U.S. at 795; Shea v. Louisiana, 470 U.S.
51, 55 (1985); Bradshaw, 462 U.S. at 1043; Wyrick v. Fields, 459 U.S. 42, 46
(1982); Johnson v. Virginia, 454 U.S. 920, 920 (1981) (Marshall, J.,
dissenting from denial of certiorari).


                                     26
appellee waived his right to counsel and to remain silent. AE
CXX at 4-5. Unlike the unique facts in Hutchins, the record is
clear in this case that the appellee -- while sitting alone in
the interview room devoid of external pressure by law
enforcement -- decided to initiate further communication with SA
KS after his invocation of counsel. That communication “evinced
a willingness and a desire for a generalized discussion about
the investigation.” Bradshaw, 462 U.S. at 1045-46. 20

     Assuming arguendo that the 15-20 minute interval between
KS’s request for consent and the appellee’s subsequent
unilateral change-of-heart is insufficient to make it legally
distinct from Hutchins for purposes of Edwards, we find that the
military judge’s interpretation of Hutchins as a per se
expansion of Edwards is flawed for several reasons. First, such
an expansion, per se barring SA KS’s request for consent to
search -- a non-interrogative event -- conflicts with subsequent
Supreme Court cases interpreting the Edwards rule. See, e.g.,
Montejo, 556 U.S. at 795 (holding that the “Miranda-Edwards
regime . . . [does not] govern . . . noninterrogative types of
interactions between the defendant and the State . . .”).


20
  Federal circuits that have considered scenarios in which there is a
temporal break between invocation and subsequent initiation have uniformly
held that there was no Edwards violation. See McKinney v. Ludwick, 649 F.3d
484, 491 (6th Cir. 2011) (holding that even if a detective’s statement --
that the case might be prosecuted by the federal government and that Mr.
McKinney could face the death penalty -- made to Mr. McKinney post-invocation
amounted to interrogation, McKinney’s decision the next morning to flag down
the detective from his cell constituted initiation for purposes of Edwards),
cert. denied, 132 S. Ct. 1559 (2012); Savino v. Murray, 82 F.3d 593, 599-600
(4th Cir. 1996) (stating that a “defendant who ends police-initiated
interrogation by requesting counsel, then specifically calls for an officer
with whom to talk about the incident in question, has reinitiated further
conversation for Edwards purposes”); United States v. Velasquez, 885 F.2d
1076, 1085-86 (3d Cir. 1989) (holding that following her invocation of
counsel, Mrs. Velasquez’s request to police officer to get federal
investigator because she wanted to speak with him, her subsequent question to
the federal investigator (“What is going to happen”), initiated the
conversation and satisfied first step in Bradshaw); McCree v. Housewright,
689 F.2d 797, 802 (8th Cir. 1982) (holding that following his invocation of
counsel when Mr. McCree subsequently knocked on his cell door and stated he
had something to say, this constituted initiation under Edwards); see also
United States v. Comosona, 848 F.2d 1110, 1112-13 (10th Cir. 1988) (holding
that following his invocation of counsel, FBI Agent handed Mr. Comosona a
business card and invited him to call collect if he wanted to talk about
incident whereupon Mr. Comosona stated that he wanted to continue the
interview constituted initiation by Mr. Comosona within the meaning of
Edwards).



                                     27
     Second, taken to its logical conclusion, virtually any non-
interrogative “communication, exchange[], or conversation[],” on
the part of law enforcement post-invocation of counsel could
create a permanent bar to further interrogation regardless of an
accused’s desire to initiate a conversation with law
enforcement. Indeed, a request for consent to search -- clearly
a non-interrogative exchange -- interposed post-invocation of
counsel, would bar subsequent initiation on the part of an
accused. It would also call into question other routine non-
interrogative law enforcement procedures such as compelling an
accused to submit a blood sample, a hand-writing exemplar, or a
voice exemplar, which by their very nature would relate, at
least indirectly, to the investigation. The Supreme Court has
long held that it offends no notion of the Fifth Amendment for
police to compel an accused to provide a blood sample, Schmerber
v. California, 384 U.S. 757 (1966), a hand-writing exemplar,
Gilbert v. California, 388 U.S. 263 (1967), or a voice exemplar,
United States v. Wade, 388 U.S. 218 (1967). It strikes us as
illogical that compelling an accused to submit to these
procedures would not violate the Fifth Amendment; whereas under
the military judge’s logic, a police request for consent to
these same procedures following an invocation of counsel,
forecloses any attempt by an “accused himself [to] initiate[]
further communications, exchanges, or conversations with the
police.” Edwards, 451 U.S. at 484-85.

      Third, the military judge’s interpretation would
significantly dim the clarity of the Edwards rule, which has
repeatedly been praised for providing “‘clear and unequivocal’
guidelines to the law enforcement profession.” Roberson, 486
U.S. at 682; see Minnick, 498 U.S. at 151 (stating that the
“merit of the Edwards decision lies in the clarity of its
command and the certainty of its application”). Additionally,
it would call into question the continued validity of MIL. R.
EVID. 305(g)(2)(B)(i), something that Hutchins does not suggest.

     Finally, the military judge’s broad application of the
Edwards rule would put it at odds with its intended purpose.
The purpose of the Edwards rule is to “‘prevent police from
badgering a defendant into waiving his previously asserted’”
request for counsel. Minnick, 498 U.S. at 150 (quoting Michigan
v. Harvey, 494 U.S. 344, 350 (1990)); see also Young, 49 M.J. at
267 (stating that “Edwards is designed to prevent the police
from badgering a defendant”). The Edwards rule, however, should
be counterbalanced against the “unmitigated good” on the part of
law enforcement to secure “uncoerced confessions.” McNeil, 501
U.S. at 181; see also Oregon v. Elstad, 470 U.S. 298, 305 (1985)

                               28
(stating that “admissions of guilt by wrongdoers, if not
coerced, are inherently desirable”).

     If the post-invocation interaction by law enforcement is
not interrogative in nature, or indicative of “badgering,” then
no interest is served in suppressing an otherwise non-coerced
statement based on an accused voluntarily changing his mind and
agreeing to the “unmitigated good” of accepting responsibility
for criminal acts. These types of policy concerns are precisely
what we believe the Supreme Court considered as the Edwards rule
evolved through Minnick, Montejo, and Shatzer. See Shatzer, 559
U.S. at 105 (stating that the “Edwards presumption of
involuntariness ensures that police will not take advantage of
the mounting coercive pressures of prolonged police custody . .
. by repeatedly attempting to question a suspect who previously
requested counsel until the suspect is badgered into
submission”) (citations and internal quotation marks omitted)).

     Assuming arguendo that Hutchins expands the “protective
umbrella” of Edwards in the military, notwithstanding the
Supreme Court’s apparent trend to narrow Edwards’s prophylactic
contours, Shatzer, 559 U.S. at 109, the facts in this case
dictate a different result. Thus, even if the CAAF intended in
Hutchins to build a “superstructure of legal refinements around
the word ‘initiate,’” Bradshaw, 462 U.S. at 1045, the
circumstances in Hutchins are simply not present in this case.
The appellee was not “held essentially in solitary confinement”
for seven days. Hutchins, 72 M.J. at 297. Rather, he was
temporarily detained and SA KS explained to the appellee that
his release was imminent following SA KS’s completion of an
affidavit for a search authorization and the appellee’s
subsequent completion of “booking” procedures. AE CXX at 3-4.

     While SA KS may, as a matter of fact, have engaged in
communication with the appellee following his invocation of
counsel, we conclude that this communication did not constitute
reinitiation within the meaning of Edwards. First, this was a
simple request for consent to search devoid of the interrogative
atmosphere that the CAAF implicitly found in Hutchins. Nothing
about this particular request for consent is suggestive or
likely to have led to an interrogation. Second, SA KS’s follow-
up communication after the appellee refused consent was designed
to reduce the appellee’s stress by explaining to him why he
would be sitting in the room for an extended period. We discern
no “compelling influences [or] psychological ploys,” Mauro, 481
U.S. at 529, associated with this interaction and the military
judge found none. Thus, we conclude that this interaction by SA

                               29
KS was not calculated or likely to “lead to further
interrogation.” Hutchins, 72 M.J. at 298; see Shatzer, 559 U.S.
at 106 (holding that a “judicially crafted rule [like Edwards or
assuming arguendo Hutchins] is justified only by reference to
its prophylactic purpose”) (citation and internal quotation
marks omitted)).

     Finally, we look to the underlying purpose of Edwards as an
additional distinguishing factor. Even if SA KS’s communication
with the appellee post-invocation triggered Edwards protection
as interpreted by Hutchins, the appellee did not succumb to any
law enforcement pressure. Indeed, by requesting counsel and
refusing to give SA KS consent, the appellee achieved his goal
“to communicate with police through counsel . . . the essence of
Edwards and its progeny.” Patterson, 487 U.S. at 291. Here, SA
KS would not have secured the appellee’s statement or his
consent for a buccal swab but for the appellee’s decision --
after about 15-20 minutes -- to request that SA KS return
because the appellee was now “willing to make a statement.” AE
CXX at 4. Accordingly, even assuming Hutchins created an
expansion of Edwards in the military, we distinguish Hutchins
and hold that under the circumstances of this case, the appellee
initiated communication with SA KS for purposes of the Edwards
rule.

Was the Appellee’s Subsequent Waiver Voluntary?

     Finding that the military judge erred in his interpretation
of the Hutchins holding, we move to the next step of determining
whether the appellee’s subsequent waiver of his rights was
knowing and intelligent under all the circumstances. See
Bradshaw, 462 U.S. at 1045 (stating that once it has been
determined that an accused initiated dialogue with the police,
there is a separate inquiry into the voluntariness of the waiver
and “clarity of application is not gained by melding them
together”).

     We conclude that the appellee’s subsequent waiver of his
rights was knowing and intelligent. Nothing in the military
judge’s findings of fact indicate any type of coercion. The
appellee was properly advised of his rights and understood them
as evidenced by his initial invocation of his right to an
attorney, his initial refusal to consent to a search, and his
subsequent waiver of those rights by initialing next to each
right on the Rights Advisement Form. AE CXX at 4-5; AE XX at 8-
9. In this regard, we agree with the military’s judge’s
original legal conclusion that the Government met its burden by

                               30
a preponderance of the evidence that the appellee freely,
knowingly, and intelligently waived his previously asserted
right to counsel and also his right to remain silent. AE IL at
9-10; MIL. R. EVID. 305(g). Accordingly, the military judge’s
reconsideration ruling, based on his erroneous interpretation
that Hutchins compelled suppression of the appellee’s oral and
written statements, is vacated.

                     V. Background: Issue II

     With regard to Issue II, we need not extensively recite the
findings of fact of the military judge because we hold that the
military abused his discretion by conducting the incorrect legal
test for evaluating the voluntariness of the seizure of the
appellee’s DNA from his buccal swab. To the extent, however,
that Issue II includes Fourth Amendment implications, some
background is appropriate.

     Subsequent to the appellee’s waiver of his previously
asserted right to counsel and of his right to remain silent, SA
KS requested consent from the appellee to seize his buccal cells
via a swab. AE CXX at 5. The appellee consented, and SA P
seized the appellee’s buccal cells at approximately 1914 on 22
October 2012. Id. On 4 January 2013, prior to his buccal cells
having been analyzed, the appellee, through counsel, submitted a
letter revoking his prior consent. Id. at 6. On 16 January
2013, SA H, U.S. Army CID, submitted a sworn affidavit to a
military magistrate in support of a request for search
authorization to analyze, among other things, the appellee’s
buccal swab. AE CXIX at 9. That same day, the military
magistrate, Major RA, U.S. Army, issued the search authorization
and the appellee’s buccal swab was sent to the U.S. Army
Criminal Investigation Laboratory for analysis. AE CXX at 7.
Analysis of the appellee’s DNA from his buccal cells, when
compared to the evidence seized from KL’s body, provided
evidence of sexual contact between the two. Id.

                    VI. Discussion: Issue II

     The military judge’s misapplication of Hutchins to Issue I
drove his analysis as to Issue II. Based solely on his
erroneous assumption that Hutchins expanded Edwards and created
a new per se rule, the military judge concluded that the
appellee’s consent was not valid and was in violation of “the
Fourth Amendment and corresponding Military Rules of Evidence.”
Id. at 19. In essence, the military judge applied a “derivative


                               31
evidence” rule whereby physical evidence gathered following an
Edwards violation must be excluded.

     In a broad sense, Issue II requires significant analysis
under the Fourth Amendment given the appellee’s initial consent
to seize his buccal cells, his subsequent revocation of consent,
an underlying probable cause assessment of the magistrate’s
search authorization, and application of potential exceptions to
the exclusionary rule. 21 See Hudson v. Michigan, 547 U.S. 586,
591 (2006) (stating that “[s]uppression of evidence, however,
has always been our last resort, not our first impulse”).
However, given that our scope of review under Article 62, UCMJ,
is limited, we only analyze the threshold question of whether
the appellee voluntarily consented to the seizure of his buccal
cells. For purposes of this appeal, that is the only theory
that the Government seeks to rely upon as a basis for having
lawfully acquired the appellee’s buccal cells. 22 With regard to

21
  The Government argues that even if the appellee’s consent was involuntary,
his DNA would be admissible under the inevitable discovery exception to the
exclusionary rule. Government Brief at 24-25. We note that for purposes of
this interlocutory appeal, the Government has recast its argument as to the
applicability of the inevitable discovery exception. Id. Before the trial
court, the Government’s inevitable discovery theory was premised on the
lawful collection of the appellee’s buccal cells pursuant to DoD regulations.
AE CXX at 23-24. On appeal, the Government argues that because SA KS was in
the process of securing a search authorization for the appellee’s DNA, but
for the appellee’s unilateral change-of-heart, the appellee’s DNA would have
been inevitably discovered through lawful means by way of a search
authorization. Government’s Brief at 24-25; see Wallace, 66 M.J. at 11-12
(suggesting that had law enforcement “dispatched an agent to obtain a
warrant, the subsequent search could arguably have been admissible under the
inevitable discovery doctrine”) (citing United States v. Lamas, 930 F.2d
1099, 1102 (5th Cir. 1991)). We decline to make any judgment on the
applicability of the inevitable discovery exception in this case. Because
the military judge used the incorrect legal standard in determining whether
the appellee’s consent was voluntary, it would be premature to consider an
exception to the exclusionary rule; an exception would only be ripe in the
event of a Fourth Amendment violation. Additionally, and to the extent
Article 62, UCMJ, constrains us to consider only the military judge’s
findings of fact, we believe this same constraint applies to legal theories
not considered by the military judge. See Kosek, 41 M.J. at 64 (precluding a
court of criminal appeals from making rulings of law “not decided by the
military judge”). This is particularly true in this case because the
Government’s recast legal theory on appeal is premised on a significantly
different factual predicate.
22
  During oral argument, the Government specifically disclaimed, for purposes
of this appeal, a potential alternate theory of admissibility for the
seizure: that the Government seized the appellee’s DNA sample pursuant to the
DoD Instruction 5505.11 requirement that suspects of sexual assault submit a
DNA sample as part of standard military booking procedures. The Government
relied on this theory at trial and the military judge extensively analyzed

                                     32
follow-on Fourth Amendment analysis, there are insufficient
findings of fact for us to determine whether the military
magistrate had sufficient probable cause to issue the search
authorization subsequent to the appellee having withdrawn his
consent. 23

     The military judge’s finding of an Edwards violation in
light of his misinterpretation of Hutchins in turn compelled his
conclusion that the appellee’s consent to seize his buccal cells
was involuntary as a matter of law. This is incorrect because
Miranda -- and by extension Edwards -- “serves the Fifth
Amendment,” not the Fourth Amendment.   Elstad, 470 U.S. at 306.

     Within the context of the Fourth Amendment, the Supreme
Court in United States v. Patane, 542 U.S. 630, 643-44 (2004),
held that the Fourth Amendment does not compel suppression of
physical evidence obtained as a result of a statement taken in
violation of Miranda. Thus, it inexorably follows that a
statement taken in violation of Edwards, a “second layer of
[judicial] prophylaxis,” McNeil, 501 U.S. at 176, compels the
same result. See United States v. Cannon, 981 F.2d 785, 789
(5th Cir. 1993) (noting that the derivative evidence doctrine is
not triggered by an Edwards violation) (citations omitted).

     Although the plurality in Patane specifically held that a
Miranda violation does not implicate the “fruits doctrine” of
Wong Sun v. United States, 371 U.S. 471 (1963), and its progeny,

it. Because the Government specifically disclaimed that theory for purposes
of this appeal, we express no opinion on the military judge’s analysis, his
rulings, or whether the seizure of the appellee’s buccal cells was reasonable
within the meaning of Maryland v. King, __ U.S. __, 133 S. Ct. 1958 (2013),
as part of established booking procedures within the military.
23
  We note that SA H’s affidavit, which accompanied his request to the
military magistrate to search the appellee’s buccal cells, contained
significantly more information than what the military judge adopted in his
reconsideration ruling. Compare AE CXIX at 9 with AE CXX at 6-7. Because
this is an Article 62, UCMJ, appeal, we may not consider facts from SA H’s
affidavit as we are bound by the military judge’s findings. Cossio, 64 M.J.
at 256. Additionally, we note that the military judge did not sever the
information that he believed to be problematic from SA H’s affidavit and then
examine “the remainder [of the information] to determine if probable cause
still exist[ed]” to execute the search of the appellee’s buccal cells.
United States v. Gallo, 55 M.J. 418, 421 (C.A.A.F. 2001); see United States
v. Cowgill, 68 M.J. 388, 393 (C.A.A.F. 2010) (holding that even if
information in an affidavit was provided in reckless disregard of the truth,
appropriate course of action is to “sever that information from the affidavit
and determine whether sufficient information remained in order for the
magistrate to find probable cause”).


                                     33
our superior court has addressed this matter within the context
of the Edwards rule. See Roa, 24 M.J. at 301 (holding that
Edwards protection only extends to interrogation and that denial
of counsel is only one factor “to be considered in determining
whether . . . consent was voluntarily given, but it is not a
decisive fact”) (Everett, C.J., concurring in the result); see
also Burns, 33 M.J. at 320 (reaffirming analysis in Roa and
holding that determination of whether consent is voluntary is
based on the totality of the circumstances). Thus, an Edwards
violation does not implicate the Fourth Amendment or the
corresponding military rules of evidence. Burns, 33 M.J. at
320; Roa, 24 M.J. at 300; see also Patane, 542 U.S. at 640
(holding that suppression of derivative evidence from a Miranda
violation cannot “be justified . . . [under the Supreme Court’s]
close-fit requirement”). 24

     This does not, however, end our analysis because the
military judge never evaluated the totality of the circumstances
on the question of whether the appellee’s consent to seize his
buccal cells was voluntary, regardless of whether there was an
Edwards violation. Burns, 33 M.J. at 320; MIL. R. EVID. 314.
Because the military judge adopted the incorrect legal test, he
made no findings of fact with regard to whether consent to seize
the appellee’s buccal cells was voluntary, and we are precluded
from finding facts within the context of this Article 62, UCMJ,
appeal. Cossio, 64 M.J. at 256. Applying a totality-of-the-
circumstances test for purposes of ascertaining whether consent
was free and voluntary, the CAAF has outlined various non-
exhaustive factors to be considered. See Wallace, 66 M.J. at 9
(outlining six specific non-exhaustive factors to be considered
on the question of whether consent was free and voluntary).

     Because the military judge adopted the incorrect legal test
and made insufficient findings of fact, we conclude that he
erred in suppressing the DNA evidence obtained by CID agents
based on the appellee’s consent.
                         VII. Conclusion

     Accordingly, the appeal of the United States is hereby

24
  Because Edwards is a prophylactic measure to protect only violations of the
Fifth Amendment, reliance on the “fruit of the poisonous tree” doctrine
articulated in Wong Sun, 371 U.S. at 471, and Brown v. Illinois, 422 U.S. 590
(1975), fails. First, Patane makes clear that a violation of a judicially-
created prophylaxis designed to protect the Fifth Amendment does not apply to
the Fourth Amendment. Second, in both Wong Sun and Brown there had been
underlying violations of the Fourth Amendment in that Mr. Wong Sun and Mr.
Brown had both been arrested without probable cause and without a warrant.


                                     34
granted. The military judge’s rulings as to Issues I and II are
vacated. The record of trial is returned to the Judge Advocate
General for remand to the convening authority and delivery to
the military judge for reconsideration in light of this opinion.
The military judge may, sua sponte, or upon request of either
party, permit additional evidence and argument on the question
of the voluntariness of the appellee’s consent to seize his
buccal cells, or any other legal or evidentiary issues, and
shall make essential findings of fact and conclusions of law
thereon. The trial may then proceed, or the United States may
again pursue appeal under Article 62, UCMJ, if appropriate.
Kosek, 41 M.J. at 65.

     Senior Judge MITCHELL and Judge FISCHER concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               35
