UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               COOK, TELLITOCCI, and HAIGHT
                                  Appellate Military Judges

                              UNITED STATES, Appellant
                                            v.
                            Specialist BRANDON S. WILSON
                              United States Army, Appellee

                                    ARMY MISC 20140386

Headquarters, U.S. Army Special Operations Command, Fort Bragg, North Carolina
                        Gary A. Loxley, Military Judge


For Appellee: Colonel Kevin Boyle, JA; Major Robert N. Michaels; JA, Captain
Patrick A. Crocker, JA (on brief).

For Appellant: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley;
JA, Major Kenneth W. Borgnino, JA; Captain Carrie L. Ward, JA (on brief).


                                          15 August 2014
                 -----------------------------------------------------------------------
                    MEMORANDUM OPINION AND ACTION ON APPEAL
                       BY THE UNITED STATES FILED PURSUANT TO
                   ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                 ------------------------------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TELLITOCCI, Judge:

       Appellee is charged with one specification of violating a lawful general order,
one specification of making a false official statement, two specifications of wrongful
use of marijuana, one specification of wrongful possession of marijuana, and one
specification of larceny of property of a value of greater than $500.00, in violation
of Articles 92, 107, 112a, and 121 Uniform Code of Military Justice, 10 U.S.C. §§
892, 907, 912a, 921 [hereinafter UCMJ]. This case is before this court pursuant to a
government appeal of the military judge’s ruling in accordance with Article 62,
UCMJ.

      At trial, the military judge granted a defense motion to suppress statements by
appellee and certain physical evidence. The government claims the military judge
abused his discretion in so ruling and requests that this court vacate the military
WILSON—ARMY MISC 20140386

judge’s ruling and order the military judge to admit statements made by appellee and
the physical evidence seized from appellee’s personal vehicle.

      We agree with the government that the military judge abused his discretion
when he applied the wrong legal principles in suppressing all of the statements made
by appellee on 19 December 2013 and the physical evidence seized on the same date.
We will take appropriate action in our decretal paragraph.

                                 I. BACKGROUND

       On 19 December 2013, appellee underwent a privately owned vehicle (POV)
safety inspection conducted by Sergeant (SGT) WA, the accused’s first line
supervisor. Also present, but only observing and not participating in the inspection,
was Staff Sergeant (SSG) IH. During the course of the inspection, after checking for
the jack and the spare tire, SGT WA noticed the strap of a camera in the rear
compartment. Appellee became nervous and covered up the strap with an assault
pack, then attempted to close the hatchback door. But since SGT WA did not stand
back from the vehicle, the hatchback door struck SGT WA on the head. Appellee
then attempted to close the hatch again, but SGT WA prevented the door from being
closed.

      Sergeant WA then asked appellee, “Whose camera was that?” Appellee said it
was his. Sergeant WA next asked if he could examine the camera and appellee
handed it to SGT WA. After looking at the camera, SGT WA asked the accused if
they could check the serial number against the unit property book and gave the
camera back to appellee. Appellee agreed and they proceeded to the company area.

       Sergeant WA went back to his normal duties and appellee was escorted to the
unit supply room by SSG IH. Upon arrival at the supply room, SSG IH asked the
supply sergeant to check the camera against the property book. Appellee then
handed the camera to the supply sergeant, but before the check could be made,
appellee stated that the camera belonged to the unit and that he had intended to
borrow it for the weekend. Appellee also told the supply sergeant that he had other
camera accessories belonging to the unit in his POV. Appellee went back out to the
car and retrieved a camera lens and storage device, 1 and gave them to the supply
sergeant.

       When the company leadership was informed, the military police (MPs) were
called. Sometime later, but shortly after their arrival, the MPs requested consent
from appellee for a search of his POV. Appellee provided a written consent form.

1
  This object is referred to in the record variously as an “SD card,” a “storage disk,”
or a “flash memory card chip.” For consistency, we will refer to this item as a
“storage device” throughout this opinion.


                                           2
WILSON—ARMY MISC 20140386

The written form included the language, “[t]his written permission is given to the
undersigned [military police investigator] freely, voluntarily, and without threat or
promises of any kind. I understand that this consent can be retracted at any time.”
The subsequent search of appellee’s POV revealed drug paraphernalia containing
marijuana residue.

      Appellate Exhibit III, the military judge’s five-page “Findings and
Conclusions re: Defense Motion to Suppress Evidence,” is attached hereto as
Appendix A.

                            II. LAW AND DISCUSSION

                                   A. Jurisdiction

      Article 62, UCMJ, states, inter alia:

             (a)(1) In a trial by court-martial in which a military judge
             presides and in which a punitive discharge may be
             adjudged, the United States may appeal the following
             (other than an order or ruling that is, or that amounts to, a
             finding of not guilty with respect to the charge or
             specification):

             (A) An order or ruling of the military judge which
             terminates the proceedings with respect to a charge or
             specification.

             (B) An order or ruling which excludes evidence that is
             substantial proof of a fact material in the proceeding.

       Here, the military judge’s ruling has formally excluded “evidence that is
substantial proof of a fact material in the proceeding.” UCMJ art. 62(a)(1)(B). This
court, therefore, has jurisdiction.

                               B. Standards of Review

       When acting on interlocutory appeals pursuant to Article 62, UCMJ, this court
may act “only with respect to matters of law” and we may not substitute our own
fact finding. United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007).

       We review the facts under a clearly erroneous standard and conclusions of law
de novo. United States v. Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006) (citing United
States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000)).




                                           3
WILSON—ARMY MISC 20140386

       We review a military judge’s ruling on a motion to suppress for abuse of
discretion. United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). “A
military judge abuses his discretion when: (1) the findings of fact upon which he
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) (citing United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)).

                                    C. Discussion

                            1. Statements by the Appellee

       Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(a) provides that
except in limited circumstances, “an involuntary statement or any derivative
evidence therefrom may not be received in evidence against an accused who made
the statement if the accused makes a timely motion to suppress or an objection to the
evidence under this rule.” In this regard, a statement is involuntary “if it is obtained
in violation of the self-incrimination privilege or due process clause of the Fifth
Amendment to the Constitution of the United States, Article 31 [UCMJ], or through
the use of coercion, unlawful influence, or unlawful inducement.” Mil. R. Evid.
304(c)(3). “No statement obtained from any person in violation of [Article 31,
UCMJ], or through the use of coercion, unlawful influence, or unlawful inducement
may be received in evidence against him in a trial by court martial.” UCMJ art.
31(d). Once a motion to suppress is brought, the burden is on the government to
establish the admissibility of the offered statements. Mil. R. Evid. 304(e).

       Here, the military judge found that appellee being “nervous,” his attempt to
cover the camera strap, and his “futile attempts to close the hatchback door [all]
reasonably indicate furtive behavior” such that a reasonable person would have
suspected the accused of wrongdoing. Although we might disagree, the military
judge reasonably applied the correct legal standard and on balance, under the
circumstances of this case, he did not abuse his discretion when he determined that a
reasonable person in SGT WA’s position should have provided a warning in
accordance with Article 31 before questioning appellee about the camera. This
failure to warn makes appellee’s subsequent statement, “it is mine,” by appellee to
SGT WA “involuntary” in the sense that it was unwarned. Therefore, the exclusion
of the statement to the effect that the camera belonged to appellee was not clearly
unreasonable. This does not, however, end the inquiry into the other statements by
the accused.

       The military judge summarily concluded that the appellee’s subsequent
admissions resulted because “the accused’s will was overborne and his capacity for
self determination [was] critically impaired,” and ruled that appellee’s first
statement (“it is mine”) was “implicitly coerced” and, therefore, any subsequent



                                           4
WILSON—ARMY MISC 20140386

statements or physical evidence, such as the camera lens and the drug paraphernalia,
were inadmissible as “fruit of the poisonous tree.” Wong Sun v. United States, 371
U.S. 471, 488 (1963). The final paragraph of the military judge’s written ruling is
illustrative:

             The absence of Article 31(b) rights renders the statements
             given by the accused inadmissible. Since the accused’s
             statements and verbal acts were obtained based on implicit
             coercion, the statements are also inadmissible for
             impeachment purposes. Subsequent evidence obtained,
             including the camera, lens, [storage device], and
             paraphernalia, as well as the accused’s written consent to
             search his POV, are fruit of the poisonous tree and are
             also inadmissible pursuant to [Mil. R. Evid] 304(a).

The military judge provided little or no analysis to support his conclusions, and as
such, there is very little to which this court can defer.

      The military judge applied incorrect legal principles when ruling that
appellee's admissions could not be used for any purpose, including impeachment.
The military judge failed to identify and apply the exception found in Mil. R. Evid.
304(b), which explicitly authorizes the use of statements, even if obtained without
proper Article 31, or Miranda warnings, provided the statement is otherwise
voluntary. Swift, 53 M.J. 439; See Miranda v. Arizona, 384 U.S. 436 (1966).

       The voluntariness of a statement is a question of law that we review de novo.
Arizona v. Fulminante, 499 U.S. 279, 287 (1991); United States v. Bresnahan, 62
M.J. 137, 141 (C.A.A.F. 2005); United States v. Ellis, 57 M.J. 375, 378 (C.A.A.F.
2002); United States v. Bubonics, 45 M.J. 93, 94 (C.A.A.F. 1996). A statement is
involuntary, and thus inadmissible, if it was obtained “through the use of coercion,
unlawful influence, or unlawful inducement.” Mil. R. Evid. 304(c)(3); see also
UCMJ art. 31(d). In determining whether appellee's “will was over-borne in a
particular case” so as to render his statement involuntary, we assess the totality of
the circumstances, “considering both the characteristics of the accused and the
details of his interrogation.” United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F.
2008) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

      The military judge made three findings of fact which arguably implicate the
voluntariness of appellee's statements: (1) SGT WA was appellee’s first line
supervisor; (2) two noncommissioned officers (SGT WA and SSG IH) were present
during the inspection; and (3) appellee was kept “under the watchful eye of unit
personnel” at all times subsequent to the arrival of the military police. The military
judge concluded that these factors resulted in “implicit coercion.” It is unclear




                                           5
WILSON—ARMY MISC 20140386

which legal principles the military judge applied here, but this conclusion was not
supported by the evidence of record.

       Under all the circumstances, these facts cannot support a necessary conclusion
of law that appellee's statement was involuntary in the sense that it was the product
of coercion, unlawful influence, or inducement, which is the prerequisite to
precluding use of admissions in impeachment of an accused, notwithstanding failure
to advise of Article 31 rights or rights to counsel. Mil. R. Evid. 304(b); see Swift,
53 M.J. at 449-50 (explaining the impeachment exception to the rule). As a result,
the unwarned statement by appellee regarding the ownership of the camera could be
used as impeachment evidence, should the appropriate conditions arise at trial.

       After being escorted to the supply room by SSG IH and without further
questioning by anyone, appellee spontaneously stated that the camera belonged to
the unit and that there were additional camera accessories in his POV. The military
judge concluded that these statements were made because the “accused’s will was
overborne and his capacity for self determination [was] critically impaired.” The
military judge found no additional facts to support his ruling, nor does the record
support a conclusion that appellee’s will was overborne. Of particular importance is
that the statement made to the supply sergeant was spontaneous and was not made in
response to any questions. Furthermore, there was no discussion whatsoever
regarding missing accessories or any indication anyone was going to return to the
vehicle for any reason. Accordingly, appellee’s mention of his purported borrowing
and further mention of the accessories were solely a product of his free will and
voluntary expression. The military judge should have analyzed this statement using
the appropriate legal principles concerning spontaneous statements. Spontaneous
statements, even if possibly incriminating, are not protected by Article 31. United
States v. Warren, 47 M.J. 649, 652 (Army Ct. Crim. App. 1997) (citing United States
v. Lichtenhan, 40 M.J. 466, 469 (C.M.A. 1994)); see generally Rhode Island v. Innis,
446 U.S. 291 (1980). As a result, the military judge abused his discretion in
suppressing the statements made to the supply sergeant.

                                2. Physical Evidence

       Lens and Storage Device: The statements made to the supply sergeant led to a
voluntary trip by the accused to the car to retrieve the camera accessories. The
military judge provided no legal principles or analysis regarding this physical
evidence other than concluding it was part of the “fruit” of the unwarned initial
statement. As discussed above, the suppression of the spontaneous statements was
improper. Appellee’s retrieval of the camera accessories was also spontaneous and
also not in response to questioning. There is no factual support in the record or in
the military judge’s findings indicating appellant’s retrieval of these items was
anything but voluntary. The military judge abused his discretion and applied the




                                          6
WILSON—ARMY MISC 20140386

wrong legal standards, as discussed above, in suppressing the camera lens and the
storage device.

      Paraphernalia and Drug Residue: The military judge’s determination that the
consent search of appellee’s POV was coerced is unsupported by any factual
findings or proper legal analysis. Our superior court has held that “a request for
consent to search does not infringe upon Article 31 or Fifth Amendment safeguards
because such requests are not interrogations and the consent given is ordinarily not a
statement.” United States v. Frazier, 34 M.J. 135, 137 (C.M.A. 1992) 2 (citations
omitted).

       Here, the military judge determined that appellee’s statutory Article 31 rights
were violated. The military judge focused solely on unwarned statements by
appellee—there were no findings or analysis regarding an illegal search or other
constitutional violation. The military judge concluded summarily that: (1) the
absence of Article 31 rights warnings made all the appellee’s statements
inadmissible; (2) the statements were, therefore, obtained by “implicit coercion;”
and (3) all subsequent evidence was “fruit of the poisonous tree” and inadmissible.
However, this “fruit” was not from the same tree, nor was it even from the same
orchard. More than three hours after the initial questions by SGT WA, appellee
voluntarily consented in writing to a search of his vehicle. Because the consent to
search was not a “statement” of the accused, the military judge applied the wrong
legal principles and abused his discretion when he suppressed the drug paraphernalia
discovered during the consent search.

       Camera: The military judge specifically found that SGT WA was engaged in
a lawful inspection when he first observed the camera strap in plain view. The
military judge’s suppression was based solely upon the Article 31 rights violation
and he conducted little or no 4th Amendment analysis on the record.

       The military judge excluded the camera because SGT WA “engaged in
questioning without first reading [appellee] his Article 31(b) rights” and, as a result,
“the accused was implicitly coerced into complying.” Upon seeing the strap, SGT
WA’s request was “[c]an I see the camera?” The military judge found that unless
Article 31 rights were read to the accused, SGT WA was prohibited from asking to
see the camera. The military judge conflated the protections of Article 31 with those
of the 4th Amendment. See United States v. Patane, 542 U.S. 630, 642 (2004)
(plurality opinion) (The 4th Amendment does not compel suppression of physical
evidence obtained as a result of a Miranda violation.)

2
  Our superior court revisited this issue in United States v. Hutchins, 72 M.J 294
(C.A.A.F 2013) wherein the court distinguished and refused to automatically apply
this analysis to cover a consent search obtained after an invocation of the right to
counsel.


                                           7
WILSON—ARMY MISC 20140386

       This request to see the camera was neither an interrogation, nor did it call for
a verbal response. SGT WA’s request to see the camera was not a violation of
appellee’s rights under Article 31, but was a request to hand over the object attached
to the camera strap. The military judge applied the wrong legal principles in
suppressing the camera.

       Since the request to see the camera was not an interrogation, and did not call
for a verbal response, the lack of a prior rights warning under Article 31(b) does not
require suppression of the camera.

        Instead, the military judge should further develop the facts and conduct the
appropriate legal analysis under the 4th Amendment. Sergeant WA asked the
accused if he could see the camera. Was this a request for consent? See Frazier, 31
M.J. at 137. When did the “legitimate inspection” become a search? In the military
judge’s written ruling, he identifies three distinct points of time at which the
inspection terminated and a search began. Was SGT WA’s request out of personal
curiosity or was he engaged in disciplinary activities? See generally United States
v. Jones, 73 M.J. 357 (C.A.A.F. 2014). When the military judge found that “instead
of attempting to obtain a valid search authorization based on the facts as he knew
them SGT WA began an inquiry” does that mean that SGT WA had probable cause?
If so, how does the automobile exception of Mil. R. Evid. 315(g)(3) apply? United
States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999) (citing Coolidge v. New
Hampshire, 403 U.S. 443 (1971)).

        Even if appellee did not consent, the military judge summarily dismissed the
doctrine of plain view. Government officials conducting a lawful activity may seize
items in plain view if “[the officials] are acting within the scope of their authority,
and . . . they have probable cause to believe the item is contraband or evidence of a
crime.” United States v. Fogg, 52 M.J. 144, 149 (C.A.A.F. 1999). See also United
States v. McMahon, 58 M.J. 362 (C.A.A.F. 2003); Mil. R. Evid. 316(d)(4) (“Property
or evidence . . . may be seized for use in evidence . . . if . . . (C) . . . [t]he person
while in the course of otherwise lawful activity observes in a reasonable fashion
property or evidence that the person has probable cause to seize.”).

       Was the camera itself ever in plain view? Sergeant WA stated during his
testimony that the accused tried to cover the strap with the assault pack,
subsequently exposing the camera itself to SGT WA’s view. The military judge did
not discuss this in his findings. In addition, the camera strap was certainly in plain
view at one point and the same furtive behaviors which formed the basis for the
military judge’s determination that rights warnings were required could support an
inference that the object attached to the strap was contraband, if not the strap itself.
Therefore, the military judge should conduct the appropriate factual analysis to
determine if the camera or the camera strap were in plain view as potential
contraband and whether they could have been lawfully examined and seized.



                                            8
WILSON—ARMY MISC 20140386

       Additionally, the inevitable discovery doctrine may be applicable as a result
of the consent to search obtained by the military police later that day. See generally
Nix v. Williams, 467 U.S. 431, 444 (1984); United States v. Keefauver,      M.J. ,
ARMY 20121026, 2014 WL 3734256 (Army Ct. Crim. App. 29 July 2014).

                                   CONCLUSION

      The military judge’s suppression of the initial statement made by appellee to
SGT WA regarding ownership of the camera was properly within his discretion.
However, that statement may be used as impeachment evidence at trial should
appropriate circumstances arise.

       The subsequent statements to the supply sergeant were improperly excluded.
These statements were spontaneous and not in response to questioning and are,
therefore, admissible. The storage device and the camera lens are also admissible as
they were obtained through spontaneous and purely voluntary acts by the accused.

      The drug paraphernalia and residue were improperly excluded as they were
obtained pursuant to a lawfully conducted consent search authorized by appellee.
They are admissible.

      The camera was improperly excluded by the military judge based on the
application of incorrect legal standards. In order to properly determine the
admissibility of the camera, the military judge should further develop the facts and
conduct a 4th Amendment legal analysis consistent with the above discussion.

       The appeal of the United States pursuant to Article 62 is granted in part. The
military judge’s ruling is vacated and the record will be returned to the military
judge for action not inconsistent with this opinion

      Senior Judge COOK and Judge HAIGHT concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




                                          9
