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## S TATES 

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_______ _______ __________ No. ACM S 3 2 5 2 8

_______ _______ __________ UNITED STATES Appellee

v.
Jeremie MILAM Airman First Class (E

- 3 ) , U.S. Air Force, Appellant

________________________ Appeal from the United States Air Force Trial Judiciary

Decided 5 Dec ember 2019

_______ _______ __________ Military Judge: Ryan A. Hendricks

. Approved sentence : Bad

- conduct discharge, confinement for 2 months
, hard labor without confinement for 13 days, and r eduction to E

- 1. Sentence adjudged 2 3 March 201 8 by Sp CM convened at Shaw Air Force Base, South Carolina

. For Appellant: Major Christopher C. Newton
, USAF

. For Appellee: Lieutenant Colonel Joseph J. Kubler , USAF; Major Anne M. Delmare , USAF; Mary Ellen Payne , Esquire

. Before MINK, LEWIS, and D . JOHNSON
, Appellate Military Judges

. Judge LEWIS delivered the opinion of the c ourt, in which Senior Judge MINK and Judge D. JOHNSON joined.

_______ _______ __________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule o f Practice and Procedure 30 .4.

_______ _______ __________ LEWIS, Judge:

A special court

- martial composed of officer members convicted Appellant, contrary to his pleas, of two specifications of wrongful use of a controlled substance (cocaine and marijuana), in violation of Article 1 12a , Uniform Code ofUnited States v. Milam , No. ACM S32528

2 Military Justice (UCMJ), 10 U.S.C. § 9 12a

. 1 , 2 The court members sentenced Appellant to a bad

- conduct discharg e, confinement for two months, hard labor without confinement for three months, reduction to the grade of E

- 1 , and a reprimand . The convening authority reduced the hard labor without confinement to 13 days
, disapproved the reprimand
, and approved the remainder of the adjudged sentence. 3 , 4 Appellant raise s one assignment of error that the military judge abused his discretion when he denied a motion to suppress the results of his urinalysis.

1 A ll references in this opinion to the Uniform Code of Military Justice (UCMJ) and the Military Rules of Evidence are to the Manual for Courts

- Martial, United States (2016 ed.).

2 The convening authority withdrew and dismissed one specification of wrongful u se of marijuana after the military judge granted the D efense ’s motion to suppress a urinalysis sample collected from Appellant pursuant to a command policy on reinspection under United States v. Bickel , 30 M.J. 277 (C.M.A. 1990). The milit ary judge conclud ed the reinspection policy did not apply as Appellant consented to the first urinalysis sample rather than being selected as part of a random inspection. The military judge also found that inevitable discovery and the good faith exception were inapplicable and that appreciable deterrence to investigators warrant ed exclusion of the second urinalysis.

3 The staff judge advocate recommended the convening authority reduce the sentence

as was done to remedy an error after Appellant was wrongfully ordered to star t his hard labor without confinement before the convening authority took action and order ed that portion of the sentence executed. See Article 57(c), UCMJ, 10 U.S.C. § 857(c). Appellant completed 13 days of hard labor without confinement before discovery o f this

error

.

4 Trial defense counsel’s clemency letter incorrectly stated the convening authority had “sole discretion . . . to set aside findings of guilt and to reduce an adjudged court

- martial sentence.” The addendum to the staff judge advocate’s recommendation (SJAR) did not address this misstatement of the law by defense counsel

. See United States v. Zegarrundo , 77 M.J. 612 (A.F. Ct. Crim. App. 2018 )
, rev. denied , __ M.J. __ , No. 19

– 0407, 2019 CAAF LEXIS 741 (C.A.A.F. 8 Oct. 2019)

. We note the S JAR itself correctly stated that the convening authority had no power to dismiss the findings of guilt and no power to disapprove the bad

- conduct discharge. See Article 60(c)(3)(B), (c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(3)(B), (c)(4)(A). W e find no colorable showing of possible prejudice from trial defense counsel’s misstatement of the law as it incorrectly informed the convening authority he had more, rather than less, discretion than he actually had. See United States v. Lamica , No. ACM 39423, 2019 CCA L EXI S 257, at *16 n.4 (A.F. Ct. Crim. App. 14 Jun. 2019) (unpub. op.)
, rev. denied
, __ M.J. __, No. 19

– 0410, 2019 CAAF LEXIS 765 (C.A.A.F. 22 Oct. 2019) ; United States v. Ten Eyck , No. ACM 39188, 2018 CCA Lexis 193, *6

– 8 (A.F. Ct. Crim. App. 17 Apr. 2018) (un pub. op.)
, rev. denied
, __ M.J. __, No. 18

– 0275, 2018 CAAF LEXIS 412 (C.A.A.F. 19 Jul. 2018)

.United States v. Milam , No. ACM S32528

3 First, Appellant argues that the m ilitary judge abused his disc retion when he determined that Appellant’s consent to the urinalysis was voluntary . Second, even if Appellant’s consent was voluntary, Appellant argues the military judge should have suppressed the urinalysis results as derivative evidence from an earlier constitutional violation of his Fifth Amendment rights. 5 We find no prejudicial error and affirm the findings and sentence.

I. B ACKGROUND
In November 2017, security f orces investigators at Shaw Air Force Base (AFB), South Carolina, received notification that a urinalysis of S taff Sergeant (S Sgt ) MP tested positive for a metabolite of cocaine. I nvestigators promptly interviewed SSgt MP under rights advisement pursuant to Article 31, UCMJ, 10 U.S.C. § 831 . SSgt MP agreed to answer questions about his positive drug
test and admitted receiving cocaine from civilian friends and using it on multiple occasions. SSgt MP denied knowing military members who used illegal drugs but told investigators that Appellant w as the “only person he really hangs out with” as they s hared common interests in amateur disc jockeying and smoking various types of tobacco with a hookah. In addition to their common off

- duty interests, b oth SSgt MP and Appellant were assigned to the same squadron. Investigator MR, a staff sergeant in the Air Force, decided to interview Appellant i mmediately. To facilitate this interview, Appellant’s first sergeant picked up Appellant at the squadron and drove him to the s ecurity f orces b uilding. Appellant waited in a classroom until Investigator MR was ready to interview him. After about 15 minutes of waiting, Appellant saw SSgt MP walk out of the investigations section with the first sergeant

. Investigator MR, wearing his military uniform with his staff sergeant rank visible, told Appellant to come with him t o the interview room

. Appellant’s interview with Investigator MR lasted less than 15 minutes. At the beginning, Investigator MR took Appellant’s military identification card. Substantively, the interview began with a focus on SSgt MP ’s drug involvement

. Appellant denied knowing anything about SSgt MP using illegal drugs. After this line of inquiry, Investigator MR switched his focus to Appellant ’s potential use of i llegal drugs

. Despite the shift in focus, Investigator MR did not read Appellant his rights under Article 31, UCMJ. It is undisputed that Investigator MR asked Appellant to consent to a urinalysis and to a search of his vehicle and dormitory room

. Appellant agreed
, and Investigator MR retrieved and filled out a consent form (AF IMT 1364,

5 U.S. C ONST . amend. V.United States v. Milam , No. ACM S32528

4 Consent for Search and Seizure )

. Appellant initialed in multiple places on the
consent form and signed granting consent

. While no evidence of illegal drug involvement was found in Appellant’s vehicle or dormitory, his urine tested positive for metabolites of cocaine and marijuana above the Department o f Defense cutoff level s for each drug. At trial, the parties disputed whether In vestigator MR asked Appellant whether he used cocaine prior to asking him for consent. According to Appellant, Investigator MR directly ask ed this question
, and Appellant denied using cocaine

. Investigator MR denied asking the question and noted that his report of investigation made no mention of th e question or of Appellant’s d enial

. One month before trial, Appellant filed a motion to suppress his urinalysis results arguing that his consent was not provided voluntar il y

. T he Defenseposited that Appellant’s rights were violated when he was subjected to custodial interrogation by Investigator MR without being advised of his rights and without counsel being present in violation of the Fifth Amendment. In essence, the Defense asserted this prior rights violation contributed to a coercive and intimidating environment which along with restrictions on Appellant’s liberty meant that A ppellant only passively acquiesced to the color of authority when he signed the consent form

. In opposition, trial counsel argued no rights violation occurred and that objectively and based on the totality o f the circumstances, the consent was “perfectl y reasonable” without coercion or defect.

T he parties a greed the correct framework for determining voluntariness of consent included an analysis of the six non

- exhaustive factors adopted by the United States Court of Appeals for the Armed Forces (CAAF) in United States v. Wallace , 66 M.J. 5, 9 (C.A.A.F. 2008)

. The military judge used these factors as a framework for his oral ruling. We address each of the six fac tors in our analysis below , but provide a general summary of the military judge’s ruling here

. At the outset, t he military judge found Investigator MR asked Appellant “directly whether he used illegal substances

. ” The military judge concluded Appellant wa s “in custody” at this time and suffered a “clear violation” of his Fifth Amendment rights. T o remedy this violation, the mi litary judge sua sponte suppressed “all statem ents made by [Appellant] t o Security Forces i nvestigators. ” Turning to the voluntarine ss of the consent, the military judge determined: Based upon the totality of the circumstances, [Appellant] did feel pressured to give consent, but the government has established by clear and convincing evidence that [Appellant ] ’s consent to provide the urinalysis was made freely and voluntarily, despite the coercive environment in which it was made. [Appellant] wasUnited States v. Milam , No. ACM S32528

5 aware that he could have consented or refused to provide his urine. Similarly, based up on the facts presented, objectively, a reasonable pers on similarly situated would have understood the words spoken to him
, and the words he himself read on the [ AF IMT ] 1364. The military judge admitted the urinalysis results and the court members found Appellant guilty of using cocaine and marijuana. On appeal, Appellant first asserts the military judge erred by applying two of the six Wallace factors in the Government’s favor and by concluding that Appellant’s consent was voluntary. The Government disagrees and argues we should find the military judge did not abuse his discretion when he determinedAppellant’s consent to search was voluntary under the totality of the circumstances. Alternatively, Appellant claims that even if his consent was voluntary, we should find the urinalysis results were deriva tive evidence or “fruit of the poisonous tree” from his illegal interrogation. See United States v. Conklin , 63 M.J. 333 (C.A.A.F. 2006). The Government disagrees arguing the failure to provide a rights advisement either had no bearing on, or was too atten uated from
, Appellant’s consent to search to require suppression

.

II. D ISCUSSION
A. Voluntariness of the Consent

1. Law We review a military judge’s ruling on a motion to suppress evidence for an abuse of discretion. United States v. Freeman
, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing United States v. Ayala , 43 M.J. 296, 298 (C.A.A.F. 1995)). The military judge’s findings of fact are reviewed for clear error, but his conclusions of law are reviewed de novo. United States v. Keefauver , 74 M.J. 23 0, 233 (C.A.A.F. 2015) (citation omitted)

. “[T]he abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.” United States v. Gore , 60 M.J. 178, 187 (C. A.A.F. 2004) (citation omitted)

. However, “[a] military judge abuses his discretion when his findings of fact are clearly erroneous, when he is incorrect about the applicable law, or when he improperly applies the law.” United States v. Roberts , 59 M.J. 32 3, 326 (C.A.A.F. 2004)

. “ [ I ] n reviewing a ruling on a motion to suppress, we consider the evidence in the light most favorable to the prevailing party.” United States v. Eppes , 77 M.J. 339, 344 (C.A.A.F. 2018) (alteration in original) (quoting United State s v. Macomber , 67 M.J. 214, 219 (C.A.A.F. 2009) )
, cert. denied , __ U.S. __, 139 S. Ct. 617 (2018).United States v. Milam , No. ACM S32528

6 The Fourth Amendment provides:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure s, shall not be violated
, and no Warrants shall issue, but uponprobable cause, supported by Oath or affirmation, and particularly describing the place to be searched
, and the persons or things to be seized.
U.S. C ONST

. amend. IV.

“ Searches conducted [ pur suant to ] a warrant or authorization based on probable cause are presumptively reasonable [
, ] whereas warrantless searchesare presumptively unreasonable unless they fall within a few specifically established and well

- delineated exceptions. ” United States v . Hoffman n , 75 M.J. 120, 123

– 24 (C.A.A.F. 2016) (internal quotation marks omitted) (quoting United States v. Wicks
, 73 M.J. 93, 99 (C.A.A.F. 2014) )

. Consent is a specifically established exception to both the warrant and probable cause requirements of the Fourth Amendment. Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973). “Property . . . may be seized with consent consistent with the requirements applicable to consensual searches under Mil. R. Evid. 314.” Mil. R. Evid. 316(c)(3). “To be valid, consent mu st be given voluntarily. Voluntariness is a question to be determined from all the circumstances. ” Mil. R. Evid 314(e)(4). “The prosecution must prove consent by clear and convincing evidence.” Mil. R. Evid. 314(e)(5).
“The test for voluntariness is whet her the consent was Appellant’s own essentially free and unconstrained choice or was her will overborne and her capacity for self

- determination critically impaired.” United States v. Olson , 74 M.J. 132, 134 (C.A.A.F. 2015) ( citation and internal quotation mark s omitted)

. “Consent is a factual determination, and a military judge’s findings will not be disturbed on appeal unless unsupported by the evidence or clearly erroneous.” United States v. Piren , 74 M.J. 24, 28 (C.A.A.F. 2015) ( citation and internal
quo tation mark s omitted).
We focus on six non

- exhaustive factors to assist in analyzing the voluntariness of a consent to search : (1) the degree to which the suspect’s liberty was restricted; (2) the presence of coercion or intimidation; (3) the suspect’s aw areness of his right to refuse based on inferences of the suspect’s age, intelligence, and other factors; (4) the suspect’s mental state at the time; (5) the suspect’s consultation, or lack thereof, with counsel; and (6) the coercive effects of any prior v iolations of the suspect’s rights

. Wallace , 66 M.J. at 9 (citations omitted); see Olson , 74 M.J. at 13 4.United States v. Milam , No. ACM S32528

7 2. Analysis Appellant claims the m ilitary judge erred in assessing the third and fourth Wallace factors and in his ultimate conclusion that Appellant’s consent was voluntary. We are not persuaded. As consent is based on the totality of the circumstances, we address the military judge’s findings for each factor.

a. Restriction on Liberty The military judge found Appellant ’s liberty was restricted by persons inauthority beginning with the first sergeant who escorted Appellant to the security forces building. The military judge concluded Appellant ceded to authority as he did not have a real choice whether to go with his fi rst sergeant. The military judge determined the restriction on Appellant’s liberty continued when Investigator MR dire c ted Appellant to come with him and that Appellant was not free to leave at any time. These findings are not clearly erroneous. We also no te that Investigator MR’s decision to keep Appellant’s military identification card for the duration of the interview and beyond was another indicati on that Appellant was not free to leave. 6

b. Presence of Coercion or Intimidation The military judge found no overt coercion or intimidation. However, he did find an atmosphere that was coercive and intimidating. The military judge looked
, inter alia
, at the location, military ranks involved, and restrictions on liberty and property and found this atmosphere affected Appellant ’s inclination to refuse consent. Th ese finding s are not clearly erroneous.

c. Suspect’s Awareness of H is Right to Refuse

The military judge determined that Appellant was a 21

- year

- old a irman f irst c lass with o ne year and seven months in the United States Air Force at the time he consented

. The military judge found Appellant signed a consent form that highlighted he had the right to consent or to refuse to consent. The military judge concluded that Appellant read, comprehended the meaning of the words, and had no questions prior to acknowledging his right to refuse consent . These findings are not clearly erroneous. Appellant claims the military judge should have fou nd his age, rank, and the circumstances surrounding the consent impacted his awareness of his right to refuse to consent. According to Appellant, the stress and heavy weight of the circumstances surrounding the giving of consent severely impacted Appellant’s awareness of his right to refuse. We are not per suaded.

6 Investigator MR kept Appellant’s military identification card from the beginning of the interview until he handed it to the drug testing program manager

.United States v. Milam , No. ACM S32528

8 Appellant testified for the limited purpose of his motion to suppress. He admitted he reviewed the consent form
, and he knew the form indicated he had the right to refuse to consent. When asked what that meant to him, Appellant answered
, “It meant that I could refuse.” While Appellant also testified that he “felt like [he] had to comply” this does not affect his “awareness” of his right to refuse consent. T he military judge’ s finding that Appellant was aware of his right t o refuse is well supported by the record.

d. Suspect’s M

ental S tate The military judge found “the facts presented do not establish that [Appellant ] ’s mental state interfered with his ability to make a rational decision. ” This finding of fact is not clearly erroneous. Appellant admit s he had no mental infirmity, but claims he felt “attacked” at the time he gave consent. He asserts that instead of a clear conscience, he felt the weight and pressure of the circumstances and this certainly impacted his mental state. Again, w e are not per suaded. Appellant’s written motion at trial provided ample explanation for the military judge’s finding of fact. In that motion, trial defense counsel wrote “ [t] here is no evidence, at this point, to suggest [Appellant ] ’s mental state interfered with his a bility to make a rational decision.” We observe no change in the Defense’s position d uring oral argument. The s enior trial counsel pointed this out
, arguing
, “ [t] he mental state, even the defense in their motion says there’s nothing wrong with his mental state. It’s clear from his demeanor there was no undue stress or anything else going on in his life.” The military judge’s finding that Appellant ’s mental state did not interfere with his ability to make a rational decision is well supported by the record.

e. Consultation with Counsel The military judge found Appellant did not consult with counsel prior to or throughout his questioning because he was not informed that he was a suspect a nd was not advised of his right to counsel . This finding of fact is not clearly erroneous. f. Coercive Effects of Prior Violations The military ju dge found the lack of a rights advisement “ troubling ” under this factor. As stated above, the mil itary judge ruled Appellant suffered a “clear violation ” of his Fifth Amendment rights. The military judge concluded the voluntariness of Appellant’s consent c ould not be divorced from the coercive effects of law enforcement withholding from him that h e was indeed a suspect. The military judge also weighed Investigator MR’s decision to keep Appellant’s military identification card under this factor. We find nothing clearly errone-United States v. Milam , No. ACM S32528

9 ous about the military judge’s underlying findings of fact. We also find th e military judge d id not improperly apply the law on the Fifth Amendment and Article 31, UCMJ. The military judge’s ruling that a Fifth Amendment rights violation occurred was within the permissible range of choices available to him based on the facts and applicable law.

g. Totality of the Circumstances The military judge concluded based on the totality of the circumstances that Appellant did feel pressured to give consent, but that the Government established by clear and convincing evidence that his consent was made freely and voluntarily despite the coercive environment. The military judge objectively determined a reasonable person, similarly situated, would have understood the words spoken to him and the words he read on the AF IMT 1364. Appellant asserts t he military judge’s findings on the six Wallace factors do not support his overall conclusion that consent was voluntary. Appellant
argues the military judge found in Appellant’s favor on “the most important Wallace factors.” Appellant notes the restriction on liberty, coercion and intimidation, lack of consultation with counsel, and “most importantly” the rights violation all weigh in his favor. We agree with Appellant that the military judge weighed four of the six factors in his favor. We d isagree that weighing four factors in Appellant’s favor means the military judge’s overall conclusion

was an abuse of discretion

. We are unaware of any legal precedent that required the military judge to weigh any one of the Wallace factor s more or less he avily than the other factors. The six factors provide a framework f or analysis and are non

- exhaustive. Ultimately, the military judge looked at the totality of the circumstances and found Appellant’s consent voluntary. The military judge did not abuse his discretion by denying the motion to suppress and admitting the urinalysis results.

B. Derivative Evidence

1. Additional Background On appeal
, for the first time, Appellant claims that even if his consent was voluntary, we should find the urinalysis results were derivative evidence or “fruit of the poisonous tree” from his illegal interrogation. See Conklin , 63 M.J.
at 333

. The Government argues that Appellant’s consent to search was not derived from his responses to questioning and that Appellant’s statements to law enforcement were ostensibly exculpatory rather than incriminating. W e findUnited States v. Milam , No. ACM S32528

10 Appellant waived this issue because he failed to present this argument during motion practice before the military judge. 7

2. Law“Waiver can occur by either operation of law, or by the intentional relinquishment or abandonment of a known right.” United States v. Jones , 78 M.J. 37, 44 (C.A.A.F. 2018) (internal citations and quotation marks omitted).“Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly in formed or voluntary, all depend on the right at stake. ” United States v. Olano , 507 U.S. 725, 733 (1993) (citations omitted). When there is waiver of an issue, that issue is extinguished and may not be raised on appeal. United States v. Gladue , 67 M.J. 311 , 313 (C.A.A.F. 2009) (citation omitted)

.Mil. R. Evid. 311(d)(2)(A) requires the Defense to make any motion to suppress or objection under this rule regarding evidence obtained from an unlawful search and seizure prior to the submission of a plea unless p ermitted by the military judge for good cause shown. “Failure to so move or object constitutes a waiver of the motion or objection.” Mil. R. Evid. 311(d)(2)(A).

Two recent CAAF cases addressed the waiver provision of Mil. R. Evid. 311(d)(2)(A). First, i n U nited States v. Robinson , the CAAF found waiver when trial defense counsel fail ed to raise an argument on the scope of the appellant’s consent to search during a motion to suppress . 77 M.J. 303, 307 (C.A.A.F. 2018). The CAAF found Mil. R. Evid. 311(d)(2)(A ) “unambiguously establishes that failure to object is waiver, and it is not a rule that uses the term ‘waiver’ but actually means ‘forfeiture.’” Id

. (citing United States v. Ahern , 76 M.J. 194, 197 (C.A.A.F. 2017))

. Second, in United States v. Smith , the CAAF cit ed its “unambiguous holding in Robinson ” and “ reiterate [ d ] that failure to object under [ Mil. R. Evid. ] 311 constitutes waiver, not forfeiture.” 78 M.J. 325, 326 (C.A.A.F. 2019) (citing Robinson , 77 M.J. at 307)

. 3. Analysis We closely reviewed the re cord of trial to see if Appellant raised derivative evidence as a grounds for suppression when he filed his motion at trial. We find no such reference in the ten

- page written motion from the Defense

. That motion contains five law sections: consent generall y, test for voluntariness,Fifth Amendment rights violation, limited scope of consent, and inevitable discovery. We find no citation to the law on derivative evidence or “fruit of the

7 In their briefs before this court, neither appellate counsel addressed whether the derivative evidence argument was waived under Mil. R. Evid. 311(d)(2)(A). We determined it unnecessary to specify this issue for briefing.United States v. Milam , No. ACM S32528

11 poisonous tree” in the Defense’s motion, though they generally cite to M il. R. Evid. 311(d) which contains the words “ or evidence derived therefrom.”

The assistant trial counsel’s motion response contains one paragraph that mentions the law on suppression of derivative evidence :Evidence derivative of an unlawful search, seizure, or interrogation is commonly referred to as the “ fruit of the poisonous tree ” and is generally not admissible at trial. Nardone v. United States , 308 U.S. 338, 341 (1939) (emphasis added).

The Government made no further mention of the law regarding derivative evidence and did not analyze how it appl ied to the Defense ’s motion to suppress

. In oral argument, t rial defense counsel argued extensively on the legal issues she articulated in her written motion . She made one reference to derivative evidence when she addressed wh ether appreciable deterrence existed under Mil. R. Evid. 311(a)(3) to require application of the exclusionary rule : Your honor, the evidence must be suppressed in total. This would clearl y result in an appreciable deterrence as the rule requires of future unlawful searches and seizures. Because it’s very clear that the law enforcement involved in this case need to be reminded that they need to absolutely respect our Airmen’s constitutional rights. Because this whole test should be thrown out, Your Honor, we also ask that all derivative evidence be thrown out which includes the second test from 22 November. 8 ( E mphasis added). S enior trial counsel did not mention derivative evidence in her ar gument. The military judg e never rule d whether the urinalysis results were derived from Appellant’s right s violation. He did not cite or analyze the United States Supreme Court precedent on suppression of derivative evidence such as Brown v. Illinois , 422 U.S. 590 (1975)
, or Wong Sun v. United States , 371 U.S. 471 (1963). The military judge did not cite or analyze the CAAF’s precedent on this issue such as Conklin or United States v. Khamsouk , 57 M.J. 282 (C.A.A.F. 2002). We therefore have no ruling below on whether Appellant’s consent
, as an independent act of free will
, broke “the causal chain between the consent and the constitutional violation.” See Conklin , 63 M.J. at 3 3 8 (citation omitted).

8 Appellant consented to provide his first urinalysis on 6 November 2017. His second urinalysis was ordered to be collected on 22 November 2017 after investigators learned his first sample tested positive for cocaine and marijuana. The military judge supp ressed the second urinalysis results as we described in footnote 2.United States v. Milam , No. ACM S32528

12 We are convinced the military judge did not address th is iss ue because trial defense counsel never raised it. We considered trial defense counsel’s one passing reference to derivative evidence and find it in sufficient to raise a “fruit of the poisonous tree” objection

. Instead, we find this passing reference to be an attempt to utilize Appellant’s second urinalysis

— which was absolutely derivative evidence of his first urinalysis and improperly ordered

— into the analysis of Mil. R. Evid. 311(a)(3)’s “appreciable deterrence” standard for Appellant’s first urinalysis. Similarly, we find unimportant that the Government referenced one case on “fruit of the poisonous tree” in the law section of their written motion

. Neither the senior trial counsel nor the trial defense counsel referenced Nardone in their oral arguments

. W e conclude that this reference by the Government did not preserve the issue for the Defense

. After considering all the matters raised in the Defense’s motion to suppress, we find Appellant waived the issue that his consent was derivative or “fruit of the poisionous tree” from the earlier Fifth Amendment rights violation because he failed to present this issue to the military judge for a ruling. Separately, w e r ecogniz e our authority under Article 66, UCMJ, 10 U.S.C. § 866, to pierce a waiver in order to c orrect a legal error

. See United States v. Hardy , 77 M.J. 438, 443 (C.A.A.F. 2018). We decline to exercise our Article 66(c) authority to pierce this waived issue as we see no legal error to correct.

E ven a ssum ing arguendo that Appellant preserved th e derivative evidence issue, we again find the military judge did not abuse his discretion in admitt ing the first urinalysis for two reasons

. First, Appellant’s consent for search was
not derived from the rights violation. Appellant made no incriminating s tatement that would have prodded Investigator MR to ask for consent for a urinalysis. Instead, the record of trial shows that Appellant’s close friendship with SSgt MP was what spurred Investigator M R to spend investigative time and
resources to determine if Appellant could also be a cocaine user. Investigator MR described asking for consent as a standard operating procedure to find the “truth” and to “see if there’s anything [the witness is] not telling us.” We find Investigator MR’s decision to request co nsent was not derived from anything Appellant said. Second, w e find Appellant’s review, initials, and signature on the consent form that it was his “legal right to either consent to a search, or to refuse to give my consen t ” as analyzed above broke any cau sal chain that could arguably exist between the constitutional violation and the
consent

. See Conklin , 63 M.J. at 338

.United States v. Milam , No. ACM S32528

13 III. C ONCLUSIONThe approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFF IRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court