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Air Force Court of Criminal Appeals Opinion on Article 31(b) rights.

Welcome to the latest edition of Court-Martial Appeals Blog.  On 25 April 2017, the Air Force Court of Criminal Appeals (AFCCA) reviewed the conduct of agents working in the Air Force Office of Special Investigations (AFOSI) in United States v. Campbell.  The AFCCA in Campbell determined that the military judge in the case did not abuse her discretion in admitting evidence collected by the AFOSI agents during appellant’s court-martial.  However, it is obvious from the court’s opinion that they were angry with the agents’ behavior in this case.

Campbell involved a First Lieutenant (1st LT) who was accused of wrongfully soliciting and using ecstasy as well as Adderall.  During the investigation, the AFOSI agents called 1st LT Campbell in for an interview.  Prior to reading 1LT Campbell his rights, an agent began explaining that the questions he planned on asking 1st LT Campbell were mostly going to be focused on what he knew about other people.  The agent explained that “some of the stuff that I am going to brief you on doesn’t necessarily pertain to you, kind of pertains to other people.”  Then the agent said that in order to speak with 1st LT Campbell about “that stuff” he would need to “get through kind of the umbrella catch-all.”  The “umbrella catch-all” that the agent was referring to, was 1st LT Campbell’s Article 31 rights.  Article 31 rights include both the right to remain silent as well as the right to consult an attorney.  Following the agent’s speech, as well as, the standard rights advisement (which did indicate that 1st LT Campbell was being investigated), 1st LT Campbell agreed to speak with the agent.

Later, some of 1st LT Campbell’s statements made to the agent were submitted as evidence during his court-martial despite the defense’s motion to suppress them.  While the AFCCA determined that the military judge did not abuse her discretion in allowing the statements, the AFCCA was clearly upset with the agent’s behavior before and during the rights advisement.  The court held that “had additional evidence been admitted to establish that at the time of his rights waiver, Appellant actually believed that he was not under suspicion, this court might likely have come to a different result.”  In other words, if appellant had testified during the motions hearing and stated that based on the agent’s words, he did not believe he was a suspect during the interview, the AFCCA may have come to a different conclusion.  The Court went on to warn investigators, “[w]e would like to clearly and unequivocally emphasize that when reading a suspect his or her rights, criminal investigators are not authorized, and have no legitimate purpose, to create confusion about any aspect of the rights advice, including the nature of the allegation. While the law may allow investigators to use deceit during other portions of an interview, the rendering of rights advice must be clear, honest, and understandable.”

Another issue raised regarding the AFOSI agents in Campbell pertained to 1st LT Campbell’s request for an attorney.  After 1st LT Campbell had been read his Article 31 rights and had been questioned for a while, the agents asked him if he would submit to a polygraph examination.  In response to this request, 1st LT Campbell told the agents that he wanted to consult with an attorney prior to taking a polygraph.  More specifically, 1st LT Campbell said, “I just, I mean, I’m in the corner by myself with no idea what I’m doing. I’ve been in situations in the past where, I’ve been accused of things and I, didn’t consult legal advice and I regret it.”  At this point, the agents gave 1st LT Campbell a break and some water to drink.  Then the agents reengaged him and asked if he would continue to talk to them without an attorney.  Despite his prior request, 1st LT Campbell agreed to keep talking without an attorney.  The AFCCA reviewed the decision of the military judge to allow statements made by 1st LT Campbell after his request for an attorney into evidence at the court-martial.  The AFCCA determined that the military judge did not abuse her discretion because 1st LT Campbell did seem to indicate that he only required an attorney if a polygraph was going to take place.  However, the court emphasized that in such a situation, agents are required to clarify with a suspect prior to questioning him again.

A final issue that was reviewed in Campbell regarding evidence obtained by the AFOSI agents was evidence seized from his cellular phone.  There were text messages on 1st LT Campbell’s phone that allegedly implicated him in the solicitation of ecstasy.  Based on a magistrate’s authorization, AFOSI agents seized 1st LT Campbell’s cellular phone.  However, the agents were unable to get into the phone without 1st LT Campbell’s pin code.  The agents asked for 1st LT Campbell’s consent to search and 1st LT Campbell provided consent along with the code.  After getting into the phone, the agents made a duplicate copy of the text messages.  Several days later, 1st LT Campbell withdrew his consent to search his phone.  However, at this point the agents already had the duplicate copy and were searching this copy instead of the actual phone.  The AFCCA held that 1st LT Campbell had no expectation of privacy over this duplicate copy that was made based on his earlier consent.

While the outcome in this case was not favorable to 1st LT Campbell, it provides several important lessons to suspects of a crime.  It is clear that agents will push the limits of the law when obtaining evidence in a case.  They are simply looking to complete the investigation, these agents do not have a suspect’s best interests in mind.  The only individual that is going to look out for a suspect is that suspect’s attorney.  If you or your loved one is under investigation in the military, the very first thing he or she should do is contact an experienced defense attorney.  Never answer any questions posed by an investigator without consulting an attorney first, even if the person reading you your rights is your supervisor.  Additionally, after being read your rights, always ask to see an attorney.  Investigators are required to leave you alone the minute you unequivocally ask for an attorney.  You should clearly ask for an attorney, and tell them you do not want to make any statements.  Likewise, do not consent to any searches or seizures of property.  You have rights and you need an experienced attorney by your side before making any decisions regarding your property.

If you or your loved one is under investigation in the military, call me now.  I have the experience you need.  Even if you already have spoken to investigators or consented to a search like 1st LT Campbell, call me now.  I may be able to get those statements and other evidence suppressed at trial.  I have represented clients in many motions hearings and I know how to present a strong case.  I also know how to preserve issues for appeal.  A suspect of a crime needs strong, experienced representation.  To speak to an experienced court-martial, court-martial appeal and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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