United States v. Metz (2024)

The key question arising in the instant case is whether “a reasonable person” would have considered Appellant to be “a suspect” at the time military law enforcement officials questioned him about the crime they were investigating. United States v. Meeks, 41 M.J. 150, 161 (C.M.A. 1994). If so, Appellant was entitled to be informed of his rights under Article 31(b), Uniform Code of Military Justice (UCMJ). 1 In deciding this issue, it is essential to note that a “mere suspicion ․ triggers the obligation to inform [a] suspect of his Article 31” rights. United States v. Schneider, 14 M.J. 189, 193-94 (C.M.A. 1982) (emphasis added). Moreover, only a “relatively low quantum of evidence” is necessary in order for the rights advisement requirement to be triggered. United States v. Swift, 53 M.J. 439, 447 (C.A.A.F. 2000) (emphasis added).

In my view, the following facts are determinative of the issue before us:

• A fire broke out inside a facilities maintenance building at Camp Pendleton. The Naval Criminal Investigative Service (NCIS) agents assigned to the case suspected arson and concluded that because there was no sign of forced entry, whoever started the fire inside the building had a key. The NCIS agents were told that Appellant was one of only a relatively small number of people who possessed such a key.

• The agents were told that Appellant had “a grudge” against the shop and had been recently counseled by his command.

• The agents learned that the logbook and personal hard hat of Appellant's sergeant had been placed on top of a stack of lumber that was set on fire in the building.

• The agents knew that Appellant was considered “a problem child” by others in his unit.

• The agents were told by Appellant's sergeant that “if anyone was likely to have started the fire in the building, it would have been [Appellant].”

Thus, at the time they began questioning Appellant, the NCIS agents knew that Appellant had been identified by his sergeant as the likely culprit, and they knew that Appellant had the means, the motive, and the seeming proclivity to commit an act of this nature. Under these circumstances, and in accordance with our precedent pertaining to this area of the law, it is evident to me that at the time the NCIS agents questioned Appellant a “reasonable person” would have concluded that Appellant was “a suspect.” 2 As a consequence, the NCIS agents were required to give Appellant an Article 31(b) warning before questioning him about the arson. See United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018) (requiring Article 31(b) warnings when, in relevant part, a servicemember is suspected of an offense and a person subject to the UCMJ questions the servicemember about this offense). Their failure to do so rendered Appellant's statements involuntary and therefore inadmissible at trial. Military Rule of Evidence (M.R.E.) 304(a) (2016 ed.); M.R.E. 305(a) (2016 ed.); see also Article 31(d), UCMJ. Because the majority holds to the contrary, I respectfully dissent. 3

FOOTNOTES

1.   10 U.S.C. § 831(b) (2012).

2.   The majority is properly “troubl[ed]” that the NCIS “agents were not aware of the correct standard for determining whether someone is a suspect” for Article 31 purposes. United States v. Metz, __ M.J. __, __ (9 n.3) (C.A.A.F. 2024); see also Oral Argument at 27:49-27:58, United States v. Metz (C.A.A.F. Feb. 27, 2024) (No. 23-0165) (The Government conceded at oral argument that “at one point in the record [the agents] were not” using the correct legal standard for determining whether an individual was a suspect.). Unlike the majority, however, I cannot wave away the agents’ misunderstanding of the law. As discussed above, Appellant was a suspect under the proper standard—if the agents had applied it. Additionally, I note that the agents’ statements during their interrogation of Appellant—the agents acknowledged that they went to Appellant's room because he was “our guy,” and they pointed out that there was a reason they “showed up” at Appellant's door—undermine their claim that they did not view Appellant as a suspect, despite the Government's attempt to dismiss these statements as merely being part of an interrogation technique.

3.   Although it is not necessary for the majority to reach this issue, I further conclude that evidence derived from Appellant's unwarned statements to the NCIS agents was inadmissible. This evidence included: Appellant giving alibi evidence that could be contradicted; Appellant lying about not having a key to the burned building; NCIS spotting Appellant's incriminating shoes that smelled like accelerant and then questioning Appellant about the shoes, causing him to implicitly acknowledge that the shoes belonged to him; NCIS locking Appellant into his story by asking him such questions as where he had been the night before and then leveraging his answers against him; and, during Appellant's subsequent consensual interrogation, NCIS repeatedly referencing Appellant's earlier unwarned statements to elicit additional damning information from Appellant. Some examples of NCIS referring to Appellant's earlier statements are as follows: “So I know last night you said that you went and hung out with a friend”; “And even when we came to your room, you were like yeah, I'm kind of a fuckup Marine”; “You even told us that you were [disgruntled about your job]”; “You even told us [that] you want to make money”; and “I asked you earlier and you said you hadn't” reported the keys missing. Moreover, the Government exploited Appellant's unwarned statements and derivative evidence at trial, referencing Appellant's false alibi and Appellant's false claim that he did not possess a key to the burned building. In addition, Appellant's unwarned statements, and evidence derived from these statements, harmed Appellant's case by prompting the military judge to give a “[f]alse exculpatory statement” instruction at trial. Because the evidence from the unwarned statements so pervasively infected NCIS's later investigatory steps as well the Government's presentation to the panel members, there is no reliable means of assessing the strength of the Government's case absent the unwarned statements. Therefore, in my view the Government has not met its burden of demonstrating that the result of the trial would have been the same if the NCIS agents had correctly advised Appellant of his Article 31(b) rights and Appellant had invoked his right to remain silent. Accordingly, I conclude that the decision of the lower court should be reversed. See United States v. Frost, 79 M.J. 104, 111-12 (C.A.A.F. 2019) (reversing where the government failed to meet its burden of demonstrating that improperly admitted evidence did not have a substantial influence on the findings). Given my conclusion that the proper resolution of Issue I results in reversible error, I need not reach Issue II.

Chief Judge OHLSON, dissenting.