N-M Ct.Crim.App.: Confession inadmissibility error infected finding of consent to taking DNA swab

The military trial judge applied the wrong legal test on admissibility of a confession, and that drove an incorrect analysis of whether defendant consented to the taking of buccal swabs for DNA. So, the case is remanded. United States v. Maza, 73 M.J. 507 (N.-M. Ct. Crim. App. 2014):

The military judge’s finding of an Edwards violation in light of his misinterpretation of Hutchins in turn compelled his conclusion that the appellee’s consent to seize his buccal cells was involuntary as a matter of law. This is incorrect because Miranda — and by extension Edwards — “serves the Fifth Amendment,” not the Fourth Amendment. Elstad, 470 U.S. at 306.

Within the context of the Fourth Amendment, the Supreme Court in United States v. Patane, 542 U.S. 630, 643-44 (2004), held that the Fourth Amendment does not compel suppression of physical evidence obtained as a result of a statement taken in violation of Miranda. Thus, it inexorably follows that a statement taken in violation of Edwards, a “second layer of [judicial] prophylaxis,” McNeil, 501 U.S. at 176, compels the same result. See United States v. Cannon, 981 F.2d 785, 789 (5th Cir. 1993) (noting that the derivative evidence doctrine is not triggered by an Edwards violation) (citations omitted).

Although the plurality in Patane specifically held that a Miranda violation does not implicate the “fruits doctrine” of Wong Sun v. United States, 371 U.S. 471 (1963), and its progeny, our superior court has addressed this matter within the context of the Edwards rule. See Roa, 24 M.J. at 301 (holding that Edwards protection only extends to interrogation and that denial of counsel is only one factor “to be considered in determining whether … consent was voluntarily given, but it is not a decisive fact”) (Everett, C.J., concurring in the result); see also Burns, 33 M.J. at 320 (reaffirming analysis in Roa and holding that determination of whether consent is voluntary is based on the totality of the circumstances). Thus, an Edwards violation does not implicate the Fourth Amendment or the corresponding military rules of evidence. Burns, 33 M.J. at 320; Roa, 24 M.J. at 300; see also Patane, 542 U.S. at 640 (holding that suppression of derivative evidence from a Miranda violation cannot “be justified … [under the Supreme Court’s] close-fit requirement”).