In August 2017, the United States Court of Appeals for the Armed Forces (CAAF) held in US v. Mitchell that when law enforcement asked a suspect Sergeant (Sgt) Mitchell to enter his phone’s passcode in the absence of counsel, the Government violated his Fifth Amendment right because Mitchell had previously invoked his right to counsel.  Therefore, even though Mitchell’s cell phone had been seized pursuant to a valid search warrant, the contents of the phone were suppressed due to the illegal seizure.

Sgt Mitchell was charged with offenses including using his phone to send harassing texts violating a no-contact order.  Sgt Mitchell was escorted to the military police station in Fort Hood, Texas.  A military investigator informed Sgt Mitchell of his Fifth Amendment rights and Sgt Mitchell invoked his right to counsel.  The investigator meanwhile obtained a search and seizure authorization to search Sgt Mitchell’s electronic media including his cell phone.

The investigator informed Sgt Mitchell about the search warrant and then asked Sgt Mitchell if he had any cell phones.  Sgt Mitchell handed the investigator his iPhone.  Because the iPhone was protected by a passcode, the investigator asked Sgt Mitchell to provide the numeric passcode.  Sgt Mitchell refused.  The investigator then asked Sgt Mitchell to unlock the phone stating:  “If you could unlock it, great, if you could help us out.  But if you don’t, we’ll wait for a digital forensic expert to unlock it.”  Sgt Mitchell then entered his passcode and unlocked the phone.

The fifth amendment states that no person shall be compelled in any criminal case to be a witness against himself. Thus, once a suspect is in custody and has requested counsel, he cannot be interrogated until counsel is present.  The investigator’s question to Sgt Mitchell:  “can you give us your Pin?” was deemed an express question–reasonably likely to elicit an incriminating response from Sgt Mitchell.   CAAF found that by asking Sgt Mitchell to state his passcode, they were asking him to provide incriminating information.  When the agent asked Sgt Mitchell to enter the passcode this was yet another attempt to acquire incriminating information.

While US v Mitchell addresses other legal issues such as “custodial interrogation,” the takeaway is that it is advisable to put a passcode on your cell phone to protect unwarranted invasion of your privacy.

Ferah Ozbek is a retired from the U.S. Air Force where she served as an active duty judge advocate for over 20 years. She continues to practice military law and represents military members and veterans who are facing injustice.  To learn more about how Ferah can help you, you can send her an e-mail at [email protected] or direct message her on LinkedIn. Visit Ferah’s website at ferahozbek.com