Navy-Marine Corps Court of Criminal Appeals

United States v. Cunningham

Appellant asserts one assignment of error (AOE), which he preserved for appellate review by entering conditional pleas of guilty: whether the military judge abused his discretion by admitting evidence obtained in violation of Miranda v. Arizona and Article 31(b), UCMJ. We find no prejudicial error and affirm.

Some basic facts

The Appellant was identified as a distributor of CP using Kik, and a sting operation involving

​the North Carolina Internet Crimes Against Children [ICAC] Task Force—consisting of federal, state, and local law enforcement, including Homeland Security Investigations (HSI), North Carolina State Bureau of Investigations, and the Boone Police Department (PD)--

When the Appellant was identified as an active duty Marine living on base, NCIS became involved in various ways to give support. The intention of the investigators was for the U.S. Attorney to prosecute the case. Once the civilian agents got a search warrant, NCIS helped support the search and provided a standby polygrapher.

HSI agents assembled off base around 0545 the day of the search to conduct an operations brief. NCIS agents were not present at the briefing as they were not intended to be involved in the actual execution of the search warrant. However, three NCIS agents provided surveillance on Appellant’s house from their vehicle to ensure he did not leave before the search.

Civilian law enforcement interviewed the Appellant at the scene but no NCIS agent participated. The civilian agents interviewing the Appellant told him he wasn't under arrest.

In the Jeep Cherokee, Appellant sat in the front passenger seat, Special Agent Baker sat in the driver seat, and Special Agent Peters sat in the back seat. The vehicle doors remained unlocked and Appellant was “not patted down, searched, frisked, or placed in any restraints at any time prior to the questioning by HSI agents, while in the vehicle or immediately following the interview.”

NCIS agents did conduct part of the search "albeit unplanned, only after the HSI agents began their interview with Appellant in the Jeep Cherokee." NCIS's main involvement came when the Appellant consented to a polygraph. At this point, the Appellant was advised of his Article 31 rights, waived them, and gave damaging statements again.

The various reports labeled the operation as "joint" in several places which raised the specter of the need for Article 31 warnings before the Jeep interview. However, the military judge resolved that point against the Appellant. The "HSI report did not list NCIS as an agency that was part of the joint investigation.”

NMCCA and the issues

The court determines that "a reasonable person in the suspect’s situation would [not] perceive his circumstances [to be arrest, and impliedly he was free to leave.]”

Factors to consider in evaluating whether a person is restrained, thus triggering Miranda warnings, include: “(1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred[;] and (3) the length of questioning.” Another factor is if the suspect is either advised that the interview is voluntary, or is informed that he is free to leave anytime. Federal courts generally consider this last factor—if a suspect is told he or she is free to leave—especially important. “Informing a suspect that he is not under arrest, even without explicitly telling him he is free to leave would also suggest to a reasonable person that he is free to leave.”

What would an E-5 Marine, removed from his on-base quarter in the early morning to find "six to eight" police cars at his house, police removing his fiancee and her child from the house, and police searching his house for CP think? He was wearing only his "boxers" when removed from the house and it was a bit later when someone brought him Would the Marine really assume he was free to leave and--go where? Might he, or anyone, be sufficiently intimidated that his freedom was limited by the police presence?

​Special Agent Baker told Appellant if he was willing to speak, they could do so in one of their vehicles—as a matter of privacy so he did not have to stand out on his front porch and have that conversation with neighbors potentially watching. Appellant agreed to speak with them in Special Agent Peters’ unmarked Jeep Cherokee directly in front of his house. At some point, an unknown HSI agent retrieved Appellant’s pants and shirt for him to wear.

NMCCA holds that the civilian agents were not required to advise the Appellant of his Article 31 rights.

Civilian law enforcement officials are required to advise a suspect of Article 31(b), UCMJ, rights only in two situations: “(1) [w]hen the scope and character of the cooperative efforts demonstrate that the two investigations merged into an indivisible entity, and (2) when the civilian investigator acts in furtherance of any military investigation, or in any sense as an instrument of the military.” More than a cooperative relationship between civilian and military authorities is required before civilian authorities will be required to provide Article 31(b), UCMJ, warnings.

The finds the military judge was correct that,

“HSI was not acting in furtherance of any military investigation or as an indivisible entity, eliminating a requirement for Article 31(b) rights advisement.”

The court cites United States v. Lonetree, 35 M.J. 396, 405 (C.M.A. 1992), cert. denied, 507 U.S. 1017 (1993) and United States v. Penn, 18 C.M.A. 194 (C.M.A. 1969).

The court holds that the statements to NCIS were not involuntary because no cleansing warning was required.

The Appellant had raised the chain of interrogations as a Missouri v. Seibert, 542 U.S. 604 (2004). www.nimj.org/caaflog/on-deliberately-undermining-miranda#/.

​Like Brisbane, the evidence in this case does not support a conclusion that HSI and NCIS agents engaged in a purposeful plan to evade Appellant’s rights. Further, although there was coordination between HSI and NCIS agents, the record does not demonstrate a deliberate effort aimed at securing an unwarned confession for later use in securing a warned confession.