       This opinion is subject to revision before publication



         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
         Graham H. SMITH, Warrant Officer One
              United States Army, Appellant
                          No. 18-0211
                    Crim. App. No. 20160150
     Argued January 22, 2019—Decided February 22, 2019
                Military Judge: Deidra J. Fleming
   For Appellant: William E. Cassara, Esq. (argued); Major
   Julie L. Borchers and Bryan E. DePowell, Esq. (on brief);
   Captain Daniel C. Kim.
   For Appellee: Captain Meredith M. Picard (argued);
   Colonel Steven P. Haight and Major Hannah E. Kaufman
   (on brief).
                         _______________

   PER CURIAM:

    We granted review to determine (1) whether the military
judge abused her discretion in denying a defense motion to
suppress evidence from Appellant’s cell phone, and
(2) whether the United States Army Court of Criminal
Appeals (CCA) erred in concluding that Appellant waived
the issue he now raises by failing to raise it at trial. We hold
that Appellant waived his current objection, and thus need
not reach the issue of whether the evidence was
inadmissible.
                  I. Posture and Background
    Appellant’s conviction stemmed from an incident in July
2014 in which he used his iPhone to take “upskirt” photos of
a woman at the Fort Rucker commissary. For his conduct, a
military judge sitting alone as a general court-martial con-
victed Appellant, contrary to his pleas, of indecent recording
in violation of Article 120c, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920c (2012 & Supp. I 2014). Appellant
             United States v. Smith, No. 18-0211/AR
                      Opinion of the Court

was sentenced to a dishonorable discharge and confinement
for two months. The convening authority approved the ad-
judged sentence, and the CCA affirmed. United States v.
Smith, 77 M.J. 631, 637 (A. Ct. Crim. App. 2018).
    At trial, defense counsel moved to suppress evidence de-
rived from Appellant’s iPhone on two grounds: (1) the un-
lawful seizure of Appellant’s phone; and (2) the lack of prob-
able cause justifying the search. After initially granting the
motion, the military judge reconsidered and ultimately re-
versed her ruling.
                   II. Law and Discussion
    On appeal before the CCA, Appellant challenged for the
first time the search of his iPhone because it was opened us-
ing the connection to his laptop computer. He argues that
defense counsel’s failure to specifically articulate a challenge
on this ground “should not be considered waiver and thus
fatal to further review.”
    We disagree. This Court has recognized that “[w]aiver
can occur either by operation of law or by the ‘intentional
relinquishment or abandonment of a known right.’ ” United
States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (citations
omitted) (emphasis added). Indeed, in United States v. Rob-
inson, we held that Military Rule of Evidence (M.R.E.)
311(d)(2)(A) “unambiguously establishes that failure to ob-
ject is waiver, and is not a rule that uses the term ‘waiver’
but actually means ‘forfeiture.’ ” 77 M.J. 303, 307 (C.A.A.F.
2018).
    In light of our unambiguous holding in Robinson, we re-
ject the Government’s concession that “[w]here [an] appel-
lant moves to suppress evidence under M.R.E. 311 but fails
to articulate a possible ground upon which to suppress the
evidence, this forfeits (but does not waive) the issue.” While
the Government correctly notes that “this Court has found
that there are instances where the plain language of a mili-
tary rule for court-martial or rule of evidence reads ‘waiver’
but may be interpreted as ‘forfeiture,’ ” it somehow missed
the fact that we have already decided that this is not one of
those instances. Given the parties’ confusion, we take this
opportunity today to reiterate that failure to object under



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            United States v. Smith, No. 18-0211/AR
                     Opinion of the Court

M.R.E. 311 constitutes waiver, not forfeiture. Robinson, 77
M.J. at 307.
    In the instant case, it is indisputable that Appellant
failed to raise the use of his computer as a “key” to open his
iPhone as a possible ground for suppression in either his
written motion to suppress or at the suppression hearing.
Appellant concedes this point. Thus, he waived the issue.
Given this conclusion, we need not reach the first issue
raised by Appellant.
                       III. Judgment
   The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.




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