Sergeant (E-5) Mitchell was charged with various offenses at a general court-martial, and the prosecution wanted to use evidence obtained from his cell phone in its case. But there was a wrinkle; the cell phone was searched using access granted by Mitchell after he requested an attorney.
Mitchell’s defense counsel moved to suppress, asserting that the Fifth Amendment right to counsel was violated when investigators pressed Mitchell to decrypt his phone after he requested an attorney, and the military judge agreed. The prosecution appealed. The Army CCA affirmed the military judge’s ruling in a short opinion, and the prosecution continued its appeal to CAAF with a certification by the Judge Advocate General of the Army.
The case attracted attention from the Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU of the District of Columbia, all of whom supported Mitchell as amicus curiae. CAAF agreed. Holding that continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, and applying the military specific Mil. R. Evid. 305(c)(2), CAAF affirmed the suppression ruling.
Military Rule of Evidence 305(c)(2) states:
Fifth Amendment Right to Counsel. If a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation.
The facts of Mitchell are relatively straightforward. Mitchell was accused of harassing his ex-wife using texting applications after he was issued a no-contact order. Military investigators began to interrogate Mitchell, but he (wisely) refused to participate and requested an attorney. He was then escorted back to his unit while investigators obtained a search authorization for his cell phone. Once back in his commander’s office, investigators told Mitchell they had authorization to search his phone and requested the passcode. Mitchell refused to provide the code, but unlocked the phone and handed it to the investigators who searched it, yielding incriminating evidence.
Writing for a four-judge majority, Chief Judge Stucky applied Mil. R. Evid. 305(c)(2) to these facts and concluded that the evidence discovered on the phone was derived from interrogation after Mitchell requested an attorney, and so it was inadmissible.
Dissenting was Judge Ryan, who found that the act of entering the passcode itself was not actually incriminating – and so the request for the passcode not an interrogation – because the passcode revealed only that Mitchell owned the phone and knew the code and these facts were not in dispute.
The result turns on a military-specific rule, but it’s a big one because the intersection between the Fifth Amendment and digital encryption is very much an emerging area of law. CAAF’s decision in Mitchell provides an early and easy-to-apply standard for future cases.