Like most people, your cell phone is likely another appendage to your body. You probably carry it with you everywhere you go, you online bank with it, check your Facebook, text your friend, send emails, make calls, order pizza, etc. Cell phones carry a lot of your information. That is what makes understanding your rights with respect to what law enforcement can and cannot do with your cell phone so critical if you were ever to be accused of a crime. Your best bet is to invoke your rights to remain silent and to an attorney, and then hire an experienced defense counsel before providing any information, including your phone’s passcode.
Think about it, do you really want someone combing through every single action you have ever taken on your phone? Recently, both civilian and military courts have been looking at the legal and constitutional implications of law enforcement seizing cell phones and accessing the information they contain. For instance, the United States Supreme Court has recently heard a case on whether police need a search warrant to obtain cellphone tracking information. While there are multiple constitutional issues related to cell phones, this blog will focus on the Fifth Amendment right against self-incrimination and things you should consider when interacting with authorities.
In United States v. Mitchell, the U.S. Court of Appeals for the Armed Forces (CAAF) looked at whether law enforcement agents conducting the investigation violated the suspect’s Fifth Amendment rights when they asked him to unlock his phone after the phone had been lawfully seized. Sergeant Mitchell, the suspect, invoked his right to counsel, and initially refused to give the investigators the pass code to access the phone. The investigators persisted in asking Mitchell to unlock the phone, 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.” Mitchell verbally told the investigators his code. CAAF found that asking Mitchell to state his passcode, after he invoked his right to counsel, was tantamount to asking him to incriminate himself. Despite the lawful seizure, the investigators violated Mitchell’s Fifth Amendment rights when they requested he provide them with a pass code. He still had a Fifth Amendment right to remain silent, plus he had asked for a lawyer. In his opinion, Judge Stucky stated, “Asking [Mitchell] to state his passcode involves more than a mere consent to search; it asks [Mitchell] to provide the Government with the passcode itself, which is incriminating information in the Fifth Amendment sense, and thus privileged.”
A year later, CAAF again looked at a cell phone issue in United States v. Robinson. In 2014 Senior Airman Hank Robinson was under investigation. The Office of Special Investigations (OSI) brought Robinson in to question him. After acknowledging that he understood his rights, he invoked his right to counsel, but this invocation did not prevent OSI from asking Robinson for his passcode to access the contents of his cell phone, which was later used at trial to convict him. On appeal, CAAF found that the investigators who requested the passcode to search Robinson’s cell phone did not violate his Fifth Amendment rights. Unlike United States v. Mitchell, Robinson voluntarily consented to the search. The court said that when the investigators requested Robinson to provide his phone password after he voluntarily gave them his phone, they did not violate his Fifth Amendment rights because the request for the password was part of the investigators request to search Robinson’s cell phone, which he had agreed to.
These cases illustrate some important issues to remember whenever you are interacting with law enforcement. You lose a lot of rights when you consent to a search. Law enforcement has tools to obtain data off your phone that you didn’t even know about. When dealing with the criminal justice (military or civilian) system, it is best to have a lawyer at your side, working for your best interests. Think about what will happen if law enforcement, OSI, NCIS, or CID do not have your password. Can they order you to open it? Is that a legal order? What if you don’t follow that order? What really happens? Can forensic techs really unlock your phone without your passcode?
Too many questions exist for you to go it alone. When in doubt, call an experienced defense attorney.