Military Appeals Court Says Demands To Unlock Phones May Violate The Fifth Amendment
from the ANSWER-UNCLEAR:-ASK-AGAIN-LATER dept
A decision [PDF] handed down by the Appeals Court presiding over military cases that almost affirms Fifth Amendment protections against being forced unlock devices and/or hand over passwords. Almost. The CAAF (Court of Appeals for the Armed Forces) doesn’t quite connect the final dot, but does at least discuss the issue, rather than dismiss the Fifth Amendment question out of hand. (h/t FourthAmendment.com]
The case stems from a harassment case against a soldier who violated (apparently repeatedly) a no-contact order separating him from his wife. After being taken into custody, Sgt. Edward Mitchell demanded to speak to a lawyer. Rather than provide him with a lawyer, investigators asked him to unlock his phone instead.
Appellee invoked his right to counsel at approximately 10:50 a.m. Appellee’s platoon leader signed a “Receipt for Pre-Trial/Post Trial Prisoner or Detained Person,” and SSG Knight escorted Appellee back to his unit, where he remained in the company area and accessed both his Kyocera phone and iPhone.
In the office, Investigator Tsai informed Appellee of the verbal search and seizure authorization, and Appellee questioned the validity of verbal authorizations, asking to see a written one. Around this time, the commander left the office. Investigator Tsai told Appellee that verbal authorizations are valid and asked if Appellee had any cell phones on his person. Appellee then handed an iPhone to the investigators. Investigator Tsai saw that the iPhone was protected by a numeric passcode, and asked Appellee to provide it. Appellee refused.
At this point, this line of questioning should have been abandoned. Actually, it should never have begun without Mitchell’s lawyer present. But the investigators apparently believed that asking, rather than ordering, Mitchell to unlock his phone made the whole thing consensual.
Investigator Tsai then handed the phone back to Appellee and asked him to unlock it, saying: “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.” Neither investigator knew at the time that Appellee’s iPhone had two finger/thumb prints stored, and could have potentially been opened using “Touch ID capabilities.” Appellee then entered his passcode and unlocked the phone: “[Appellee] was also required to permanently disable the cell phone’s passcode protection. In order to do so, [he] was required to access the phone’s settings and enter his numeric passcode (PIN) two more times to fully disable the phone’s protections.”
The military judge at the lower level suppressed the evidence, holding that Mitchell was in custody without requested legal representation at the time he unlocked his phone for investigators. The Appeals Court affirms the lower court’s findings.
Under the circumstances presented, we conclude that the Government violated Appellee’s Fifth Amendment right to counsel as protected by Miranda and Edwards. The Government does not contest that Appellee was in custody when he invoked his right to counsel while detained at the military police station. It is almost equally clear that Appellee was in custody in his commander’s office when investigators asked him to unlock his iPhone.
The court also points out that simply asking nicely for an in-custody suspect to “help out” the government by possibly incriminating themselves doesn’t make it any more Fifth Amendment-compliant, nor does it change the nature of questioning from an “interrogation” to “a couple of guys chatting about stuff with absolutely no criminal case-building implications.”
This line of questioning qualifies as interrogation. The agents’ initial request—“can you give us your PIN?”—is an express question, reasonably likely to elicit an incriminating response. The Government contends that a request for consent to search is not an interrogation, citing this Court’s reasoning in United States v. Frazier that “such requests are not interrogations and the consent given is ordinarily not a statement.” 34 M.J. 135, 137 (C.M.A. 1992). But asking Appellee to state his passcode involves more than a mere consent to search; it asks Appellee to provide the Government with the passcode itself, which is incriminating information in the Fifth Amendment sense, and thus privileged.
The court points out the simple act of unlocking a phone can be incriminating. It demonstrates for investigators and prosecutors the person holding the phone may well be responsible for any incriminating content found on it. It also implies ownership, making it easier to connect the person to the device (and the content contained).
By asking Appellee to enter his passcode, the Government was seeking an “answer … which would furnish a link in the chain of evidence needed to prosecute” in the same way that Hoffman and Hubbell used the phrase. Not only did the response give the Government access to direct evidence as in Hubbell, it also constituted direct evidence as in Hoffman. See Hubbell, 530 U.S. at 39–40 (“The documents were produced before a grand jury …. The use of those sources of information eventually led to the return of an indictment ….”); Hoffman, 341 U.S. at 488 (“[T]ruthful answers … to these questions might have disclosed that he was engaged in such proscribed activity.”). As even the dissent concedes, Appellee’s response constitutes an implicit statement “that [he] owned the phone and knew the passcode for it.”
Based on that, the court finds Mitchell’s Fifth Amendment rights were violated by this in-custody request to provide a passcode. Unfortunately, the court considers this the end of its judicial inquiry.
In light of this holding, we need not reach the question of whether the Government directly violated Appellee’s Fifth Amendment privilege against compelled self-incrimination. We thus do not address whether Appellee’s delivery of his passcode was “testimonial” or “compelled,” as each represents a distinct inquiry.
Even though the ruling doesn’t extend far enough to make passcodes worthy of Fifth Amendment protections, the judicial analysis at least shows providing passwords can create evidence to be used against the accused. This decision doesn’t quite stretch that far thanks to the investigators’ ignoring Mitchell’s invocation of his right to an attorney, but it does the act of entering passwords can be considered self-incriminating.