United States v. Kicker, ACM 39080

Background

Appellant, an Airman in technical training at Sheppard AFB, was interviewed by AFOSI initially as a witness about others' suspected drug use and later became a subject when his own involvement surfaced.
The first interview (unrecorded) produced statements from Appellant about others using LSD and some facts implicating himself; after a break, agents taped the re-entry and eventually advised Article 31 UCMJ rights 35 minutes after re-starting and obtained waivers.
Post-advisement, Appellant admitted personal LSD use, consenting to a urine test and dormitory search but refusing consent to search his cellphone; agents later obtained verbal/then written search authorization (AF IMT 1176).
SA GE testified he performed a scroll search of the cellphone on July 11 (within the 3-day initiation period on the AF IMT) and found texts/videos; another agent performed further analysis on July 23 and found additional inculpatory material.
Appellant moved to suppress (1) his statements and derivative evidence and (2) cellphone contents as obtained beyond the 3-day initiation window. The military judge denied both suppression motions.
The Air Force Court of Criminal Appeals affirmed: pre-rights statements initially admissible; post-rights and later statements voluntary under the totality of circumstances; cellphone search was initiated within the authorized period and later review was not unlawful; delay in appellate processing did not warrant relief.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Admissibility of pre- and post-Article 31 statements	Pre-rights and post-waiver statements should be suppressed as involuntary because agents failed to recognize Appellant was a suspect and used questioning to elicit inculpatory statements without proper warnings	Agents initially treated Appellant as a witness; any transition to suspect status was inadvertent; post-waiver statements were made voluntarily after advisement and waiver	Court: Statements made after agents should have suspected Appellant but before advisement suppressed; statements made prior to suspect status and those after proper advisement and waiver were voluntary and admissible
Derivative evidence from interviews of others (Wideman, Williams)	Derivative evidence should be suppressed if primary statements were involuntary	Primary statements about others were voluntary; subsequent investigative steps were lawful	Court: Derivative evidence admissible because initial disclosures about others were voluntary
Cellphone search timing and scope	The July 23 forensic/scroll search exceeded the AF IMT 1176 three-day initiation window and so evidence from that search must be suppressed	A scroll search was initiated on July 11 within three days; later, more detailed review did not make the earlier initiation unlawful; any technical overrun was de minimis	Court: Search was initiated within the three-day period; denial of suppression affirmed
Post-trial appellate delay	Delay in appellate review was presumptively unreasonable and prejudicial	Delay was explained; Appellant showed no prejudice; court completed review within reasonable time after briefing	Court: No due-process violation or relief warranted; appellate delay did not prejudice Appellant

Key Cases Cited

United States v. Seibert, 542 U.S. 600 (2004) (pre-Miranda sequential-warning analysis informs voluntariness and cleansing-statement issues)
United States v. Chatfield, 67 M.J. 432 (C.A.A.F. 2009) (standard of review for motions to suppress—abuse of discretion; fact findings reviewed for clear error)
United States v. Swift, 53 M.J. 439 (C.A.A.F. 2000) (objective test for when an interviewee becomes a suspect)
United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (de minimis violations of warrants/authorizations do not always mandate suppression)
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (presumption of unreasonable post-trial delay and Barker balancing factors)
Barker v. Wingo, 407 U.S. 514 (1972) (four-factor speedy-trial balancing test)