​Subsequent to entering into a pretrial agreement, Appellant filed a motion for the military judge to recuse himself. Appellant argued there was an appearance of bias because the continuances, and joinder of an additional charge for misconduct during the trial, adversely affected the military judge and his docket. The military judge invited written pleadings, and, in the hearing on the motion, allowed Appellant to voir dire him. Through this questioning, the military judge explained that during sentencing he would consider only the evidence properly admitted, that he harbored no animus towards Appellant, and this would be no different from any other time when he had to compartmentalize information while presiding over courts-martial. The military judge also informed counsel that neither the scheduling complications for the case nor the length of the court-martial caused him any personal problems. Following the military judge’s denial of the recusal motion, Appellant pleaded guilty, and elected trial by military judge alone, after being advised that the same military judge that he requested recuse himself would be his sentencing authority. The parties agreed that Appellant’s guilty plea did not waive the recusal motion on appeal.

(1) the sentence limitation portion of the plea agreement contained impermissible limitations under a plain reading of R.C.M. 705(d) and should not have been accepted.

(2) the plea agreement contained a prohibited and unenforceable provision requiring the military judge to award a specific sentence, violating public policy.

Consistent with our recent opinion in United States v. Rivero, we find that Appellant’s assignments of error lack merit. As in Rivero, “Appellant negotiated the provisions of his plea agreement in accordance with R.C.M. 705(d)(1) and enjoyed complete sentencing proceedings as required by R.C.M. 1001 and 1002. Accordingly, we find the presence and effect of the sentence limitation provision in this case accorded with the President’s statement of public policy.” Because we find “that Appellant did receive complete presentencing proceedings, that his plea agreement’s punishment limitations did not render those proceedings meaningless, and that the terms of his plea agreement did not violate public policy, we find [these AOEs] to be without merit.”

​82 M.J. 629 (N-M. Ct. Crim. App. 2022) (finding that specific sentence limitations within a plea agreement do not violate the Rules for Courts-Martial or public policy), review granted, __ M.J. __, 2022 CAAF LEXIS 484 (C.A.A.F., July 11, 2022).

The military judge granted Appellant’s motion, and the Government filed an interlocutory appeal with the United States Army Court of Criminal Appeals (ACCA) which reversed. Appellant appealed the ACCA’s decision to this Court, and we reverse again. The military judge did not abuse his discretion in holding: (1) PFC Avery lacked common authority to consent to the search of Appellant’s phone; (2) the Government failed to prove that the evidence was subject to the inevitable discovery doctrine; and (3) Appellant’s later voluntary consent to search the phone was not sufficiently attenuated from the unlawful search to cure that error.

“Whether the Army Court erred in its abuse of discretion analysis by (1) creating a novel test for common authority, (2) failing to give deference to the military judge’s findings, (3) comparing a modern cell phone to a traditional “container,” and (4) finding error based on a difference of opinion.”

Because we are aware of no binding precedent that equates physical access with common authority or that requires express or actual restrictions on use, we disagree that the military judge misapplied the law.
 
Neither the Supreme Court nor this Court has ever held that the scope of a person’s common authority over property is coextensive with that person’s access to the property. If that were true, determining whether common authority existed would be trivial. The only question would be whether the person who consented to the search had access to the searched property. Under the Government’s theory, a property owner would “assume the risk” that another person might provide consent to an unlimited search by law enforcement simply by giving that person limited, temporary possession over their property. Yet that is not how the analysis in common authority cases proceeds.
 
In Rader, this Court expressly rejected the idea that the owner of a computer that was also used by a third party could not limit the scope of the third party’s access to certain applications or files. 65 M.J. at 34. And although the Court recognized that one way of restricting access was through the use of technological restraints such as passwords or encryption, we also acknowledged that courts should consider “whether the defendant otherwise manifested an intention to restrict third-party access.” Id. (internal quotation marks omitted) (citation omitted). Accordingly, even though Appellant had not password protected or encrypted the photo galleries containing the child pornography, that does not mean that Appellant could not have excluded those galleries from the scope of PFC Avery’s common authority.
​
[…] Although we might have reached a different conclusion than the military judge in the first instance, we are mindful that there must be more than a mere difference of opinion to establish an abuse of discretion. The military judge’s decision was not based on clearly erroneous facts, and it was not “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Solomon, 72. M.J. at 179 (internal quotation marks omitted) (citation omitted). The military judge did not exhibit an erroneous view of the law, and he did not abuse his discretion in suppressing the evidence obtained from Appellant’s phone.”

Jake Dianno

Jake is a 2L at Villanova Law who is externing with NIMJ.

While the chain of events may initially give one pause over concerns of forum shopping, we are confident this was not the case here. First, the record establishes that the District Court had jurisdiction over both the offense and the place where the object of the search warrant was located. Second, the supporting affidavit clearly explained why NCIS was seeking authority from the District Court and not a military magistrate. As found by the military judge, NCIS went to great lengths to ensure nothing related to the earlier searches or any evidence collected after 19 January 2017 tainted the new warrant. The decision to seek a warrant from the District Court reflected the agents’ belief in the fact it was unlikely that any military judge at Camp Pendleton would be free of knowledge of the case—particularly regarding the results of the February 2020 search.
​
Rather than view this as an attempted evasion of the exclusionary rule’s effects, we see this as validation of the rule. The NCIS agents learned and applied the “harsh lesson” the military judge intended to deliver by excluding the evidence derived from the February 2020 search. Being told their previous probable cause affidavit was “insufficient to establish PC,” the agents set about correcting their failure. In doing so, they provided a much more robust, 17-page affidavit including all relevant evidence known as of the date of the original application for authorization to search Appellant’s MacBook laptop. The military judge concluded that the last affidavit was both sufficient to establish probable cause and untainted by any activity after 19 January 2017. We agree.

Sort of guest post

from John Wesley Hall,  Fourth Amendment.com. His site is one of our daily reads.

Anonymous

An attorney and former Army Officer assigned to the United States Army Judge Advocate General’s Legal Center and School (JAG School) in Charlottesville, was arrested over the weekend in Arkansas and charged with cyberstalking.
​
[He] is charged with cyberstalking following a series of incidents related to threats made to at least two female victims, the attempted deletion of Army materials [from TJAGLCS], lying to the FBI, and coaching a witness to provide false information to the FBI.

In the overnight hours between February 6 and 7, 2022, and while his Army discharge was pending, [he] attempted to delete, without authorization, online JAG training materials. [he] filmed himself doing so and narrated his motivations.  In the video, [he] stated, “I’m gonna f*** you,” and “I’m going to bring their house down on them.”  The same evening, [he] contacted Victim 1 and informed her that Russia reached out to him, wanted to know what he knew, and that he intended to travel to Russia.  [His] cellphone records indicate he contacted the Russian embassy.

Appellant argues that the 2019 amendment to Article 37, UCMJ, eliminated apparent UCI as a basis for appellate relief. Effective 20 December 2019, the relevant new language in Article 37 states: “No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section [i.e., UCI] unless the vi olation materially prejudices the substantial rights of the accused.”We need not address whether the issue before this court involves a “finding or sentence of a court-martial,” as we find that, even if apparent UCI is still a viable basis for relief, there was no apparent UCI here. 
. . . 
​We expect that “an objective, disinterested observer” will likely find Col Sierra’s comments to Capt Tango highly disturbing. They were as shocking as they were incorrect. But it is that very demonstrable (and demonstrated) incorrectness that saves these proceedings from the appearance of UCI. The “facts and circumstances” in the present case include the evidence the Government provided to show that Col Sierra’s comments were patently untrue, as well as that Capt Tango had been selected for highly valued professional military training. If such an observer is “fully informed” of this evidence, any doubt as to the fairness of the proceeding becomes both unlikely and unreasonable. Thus, we conclude the military judge clearly erred in finding apparent UCI.

​The military judge ruled that Appellee’s loss of his IMC and ADC, both of whom had been on the case for over a year, demonstrated that the Government had not disproven any prejudicial effect of the alleged UCI. We disagree.

Picture this. You are in a foreign country. The police arrest you and realise that you don’t speak the language. So, they organise someone to translate. If you’re lucky, the person they contact is a professional interpreter. If you’re unlucky, the person is a multilingual police officer who happens to speak your language just well enough to scrape through an interview. Either way, you are now having to talk through someone else.
Does this interpreter-mediated interviewing put you at a disadvantage? If so, how much? The answer to this lies at the intersection of criminal psychology and cognitive linguistics, where researchers have realised that interpreters are an overlooked barrier between suspects and their freedom.
One of the most active researchers looking at these issues is Luna Filipović, a professor of language and cognition based at the University of East Anglia. She has been studying the effects of multilingual police interviews for more than a decade.