CAAF decided the certified interlocutory Army case of United States v. Mitchell, 76 M.J. 413,No. 17-0153/AR (CAAFlog case page) (link to slip op.), on August 30, 2017. Because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, CAAF finds that the contents of a cell phone must be suppressed because military investigators requested the passcode to decrypt the phone after the suspect requested an attorney. The phone itself, however, need not be suppressed. CAAF affirms (in part) the decision of the Army CCA and of the military judge suppressing the contents of the phone.

Chief Judge Stucky writes for the court joined by all but Judge Ryan, who dissents.

Sergeant (E-5) Mitchell is charged with various offenses at a general court-martial. The prosecution wants to use evidence obtained from Mitchell’s cell phone. But the military judge suppressed the contents of the phone (and the phone itself) because military investigators continued to question Mitchell after he requested an attorney. The investigators had a search authorization for the phone, and had asked Mitchell for the passcode to the device. Mitchell (after requesting counsel) refused to tell them the passcode, but he entered the code into the phone and then entered it two more times to permanently disable the security features for the investigators. The prosecution appealed the suppression ruling under Article 62, the Army Court of Criminal Appeals affirmed the military judge’s ruling, and the Judge Advocate General of the Army certified three issues to CAAF:

I. Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.

II. Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.

III. Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.

Concluding that “the Government violated [Mitchell’s] Fifth Amendment right to counsel as protected by [Miranda v. Arizona, 384 U.S. 436 (1966)] and [Edwards v. Arizona, 451 U.S. 477 (1981)],” slip op. at 5, Chief Judge Stucky and the majority apply the plain language of Mil. R. Evid. 305(c)(2) (as rewritten in 2013) to suppress the contents of the phone because it is evidence derived from the interrogation after Mitchell requested counsel.

But Judge Ryan dissents because Mitchell merely entered his passcode into the device while he “declined to state or otherwise speak his passcode to the Government. He declined. There is nothing to suppress there.” Diss. op. at 3.

Chief Judge Stucky’s majority opinion is best read in three parts.

First, the majority holds that Mitchell invoked his right to counsel and was in custody when he was asked for and input the passcode. Slip op. at 5. The circumstances supporting this conclusion include that:

(1) Appellee did not appear voluntarily and (2) the “location and atmosphere of the place” suggested that Appellee was again in custody. Although (3) the length of the questioning itself was not particularly remarkable, (4) the Government had two law enforcement officers on the scene, backed by the authority of Appellee’s commander. Finally, (5) although Appellee was not handcuffed, he was restrained just as completely by an environment in which both his command and the Government investigators required him to remain in place.

Slip op. at 6. Judge Ryan concurs with this portion of the majority opinion. Diss. op. at 2.

Second, the majority holds that Mitchell was subject to interrogation when investigators asked him for his passcode. This holding is based on a number of conclusions, including that the request was “an express question, reasonably likely to elicit an incriminating response,” slip op. at 7, that asking Mitchell to enter the passcode rather than tell it to investigators “was part of the same basic effort” to get the information from Mitchell, slip op. at 7, and that Mitchell’s response not only gave the Government “access to direct evidence . . . it also constituted direct evidence,” slip op. at 8. Chief Judge Stucky writes, in part:

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 privilege … not only extends to answers that would in them-selves support a conviction … but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute ….” Hoffman v. United States, 341 U.S. 479, 486 (1951); see also United States v. Hubbell, 530 U.S. 27, 37–38 (2000).

Slip op. at 7 (emphasis added). This was incriminating, as the majority insists that:

even the dissent concedes, Appellee’s response constitutes an implicit statement “that [he] owned the phone and knew the passcode for it.” Mitchell, __ M.J. at __ (8) (Ryan, J., dissenting). And the fact that Investigators Tsai and Carlton could have testified to this act confounds any contention that “entering the passcode—was not incriminating.” Id. at __ (7).

Slip op. at 8. But Judge Ryan’s dissent seems to make a finer point, emphasizing “the distinction between real or physical evidence, on the one hand, and communications or testimony, on the other.” Diss. op. at 4 (quoting South Dakota v. Neville, 459 U.S. 553, 561 (1983)). “In this context, the question whether the act of entering a passcode into a phone can be testimonial is fairly novel.” Diss. op. at 4. Nevertheless, Judge Ryan finds the request for the passcode to be wholly different from an interrogation:

Requesting that Appellee unlock his phone before the Government seeks to unlock it by force is the functional equivalent of “knock and announce,” a request that the owner open the door, as opposed to an agent kicking it in. See generally United States v. Ramirez, 523 U.S. 65, 73 (1998) (discussing the relationship between property damage during no-knock entries and reasonableness under the Fourth Amendment). A request for access into a phone seized pursuant to a search authorization is plainly not an interrogation, just as a request to open the door to a home prior to executing a search warrant is not an interrogation.

Diss. op. at 6.

Chief Judge Stucky’s majority opinion concludes that Mitchell’s act of decrypting the phone “furnish[ed] a link in the chain of evidence needed to prosecute” Mitchell because “not only did the response give the Government access to direct evidence as in Hubbell, it also constituted direct evidence as in Hoffman.” Slip op. at 8. Judge Ryan’s dissent excoriates this as “a naïve misunderstanding of what the phrase ‘link in the chain,’ Hoffman, 341 U.S. at 486, actually means.” Diss. op. at 9. The Supreme Court’s decision in Hoffman, she explains:

did not purport to expand the scope of the Fifth Amendment to include all non-incriminating statements or acts that might lead investigators to, or provide access to, evidence; it merely recognized that some statements, which are not incriminating on their face, might themselves become incriminating when placed in context with other evidence.

Diss. op. at 10 (emphasis in original). And here she finds that any communication was not incriminating because obtaining the passcode revealed only that Mitchell “owned the phone and knew the passcode for it,” and:

ownership was not in dispute. And it is common sense that a person who owns a phone also knows the passcode and has the capability to use it.

Diss. op. at 8. Judge Ryan ultimately summarizes this with the conclusion that Mitchell’s “entry of his passcode merely provided access to a device already known to—indeed in the possession of—law enforcement.” Diss. op. at 12.

Chief Judge Stucky, however, explains that the majority’s decision is focused on enforcing a prophylactic rule:

[W]e are enforcing the “prophylactic” Miranda right to counsel, and the “second layer of prophylaxis” established in Edwards, both of which are constitutionally grounded measures taken to protect the core Fifth Amendment privilege.

Because Edwards forbids interrogation following the invocation of the Miranda right to counsel, not just interrogation that succeeds, it follows that those who seek Edwards protection do not need to establish that the interrogation produced or sought a testimonial statement in order to establish a violation. Rather, only interrogation itself must be established, and Appellee has demonstrated that entry of his passcode was an “incriminating response” that the Government should have known they were “reasonably likely to elicit.” Once an Edwards violation has been established, whether the incriminating response or derivative evidence will be suppressed is a question of remedy, not wrong. This interpretation of Edwards makes intuitive sense, because badgering an unrepresented suspect into granting access to incriminating information threatens the core Fifth Amendment privilege, even if the government already knows that the suspect knows his own password.

At the moment when interrogation occurred, the violation of Appellee’s rights under Edwards was complete. The only question that remains is the proper remedy.

Slip op. at 9 (citations omitted).

Third, and finally, the majority concludes that suppression is required under the Military Rules of Evidence. Specifically, Chief Judge Stucky explains that:

Under the plain language of the Military Rules of Evidence, any evidence derived from a violation of Edwards must be suppressed. “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.” M.R.E. 305(c)(2) (emphasis added).

Slip op. at 9. But the Government argued that the Rule’s mention of derivative evidence has no effect because it was added in 2013 and those changes are generally accepted as stylistic only. Addressing this argument, the majority (and perhaps also Judge Ryan, as her dissenting opinion does not discuss this issue) finds that the 2013 revision of the Military Rules of Evidence added the derivative evidence language as a substantive change, with this footnote:

The Government argues that the 2013 amendment resulting in the modern language “was not intended to have any substantive effect at all.” It is true that the Drafters’ Analysis does not mention Patane, and explains that M.R.E. 305(c)(2) was retitled “Fifth Amendment Right to Counsel” in order to “allow practitioners to quickly find the desired rule,” and that changes which “ensure that [the rule] addressed admissibility rather than conduct” were “not intend[ed] to change any result in any ruling on evidence admissibility.” Manual for Courts-Martial, United States, Analysis of the Military Rules of Evidence app. 22 at A22-19 (Supp. 2012 ed.). But the analysis indicates in several places that changes were intended to be substantive, including explicit acknowledgment that “subsection (c)(3) provides more protection than the Supreme Court requires,” and that “[t]he words ‘after such request’ were added to subsection (c)(2)” for a substantive purpose. Id. In the absence of a more convincing argument that an entire phrase was accidentally inserted, this Court will thus apply the plain language of M.R.E. 305(c)(2).

Slip op. at 10 n.7. Insofar as it matters, I don’t think this is right because the old Rule also applied to derivative evidence. The prior version of Mil. R. Evid. 305 said that any statement “obtained in violation of this rule is involuntary,” Mil. R. Evid. 305(a) (2012), that “when a person entitled to counsel under this rule requests counsel, [counsel] shall be provided,” Mil. R. Evid. 305(d)(2) (2012), and that “absent a valid waiver . . . counsel must be present before any subsequent custodial interrogation may proceed,” Mil. R. Evid. 305(e)(1) (2012). So any statements made by Mitchell after he requested counsel were involuntary under the old rule. And derivative evidence was only admissible under the old rule if:

the military judge finds by a preponderance of the evidence that the statement was made voluntarily, that the evidence was not obtained by use of the statement, or that the evidence would have been obtained even if the statement had not been made.

Mil. R. Evid. 304(e)(3) (2012). Put differently, to be admissible under the old Rule a derivative statement must either be independently voluntary, not derivative, or inevitably discovered. So the current rule is nothing more than a restyled (and easier to apply) version of the old rule. Custodial interrogation must stop when a suspect requests an attorney, else any evidence obtained from further questioning will be inadmissible at court-martial.

CAAF affirms the decision of the Army CCA and of the military judge “to the extent that it affirmed the suppression of the contents of the iPhone,” but reverses “to the extent that it affirmed the suppression of the physical phone.” Slip op. at 12.

In my argument preview in this case I observed that a desirable aspect of the military justice system and its rules is simplicity. Judge Ryan’s dissent characterizes the majority decision as having “inexplicably, and without a textually principled explanation, wandered far from the core principles the Fifth Amendment and Edwards were intended to protect.” Diss. op. at 12. Perhaps so. But the majority’s approach is simple, straightforward, and easy to apply: Stop questioning a suspect who requests counsel. Because:

Without the benefit of counsel that he had requested, subjecting Appellee to a custodial interrogation endangered his Fifth Amendment privilege against self-incrimination and violated the protective rule created in Edwards.

Slip op. at 8.

Case Links:
• ACCA opinion
• Appellant’s (Army App. Gov’t Div.) brief
• Appellee’s brief
• Appellant’s reply brief
• Amicus brief: Air Force App. Gov’t Div.
• Amicus Brief:  Electronic Frontier Foundation, American Civil Liberties Union, and ACLU of the District of Columbia
• Amicus Brief: Two Notre Dame law professors
• Amicus Brief: Notre Dame law student
• Blog post: Argument preview
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

10 Responses to “Opinion Analysis: A custodial interrogation without the benefit of requested counsel endangered the Fifth Amendment privilege against self-incrimination in United States v. Mitchell, No. 17-0153/AR”

  1. Annoyed says:

    Did the government’s warrant include his passcode?  If the government asked for the PIN number to his banking account, are they entitled to that as well?

  2. k fischer says:

    So, what does that do to the Air Force line of cases that hold otherwise? i.e. Blatney and Robinson.

  3. Zachary D Spilman says:

    CAAF has granted review in both Blatney (noted here) and Robinson (noted here). I suspect the resolution of both cases will turn more on the specific facts than on anything in Mitchell

  4. k fischer says:

    I read the dicta from Justice Stevens’ opinion in United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037, 2047, (2000) stating “The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.”  Seems pretty clear that forcing one to give up a key to a strongbox is not testimonial, but forcing one to tell them the combination to a wall safe is testimonial.  
    So, I’m not quite sure why Judge Ryan would accuse the majority of being “naive,” when this very persuasive dicta put forth by the Supreme Court also supports the majority’s holding, although I am a little perplexed why the majority did not quote that section of Hubbell.  I don’t see a big difference between a combination of a wall safe and a pass code to an iPhone, and it seemed to fit pretty well with Judge Stuckey’s very well written and easy to follow holding.

  5. Tami a/k/a Princess Leia says:

    This is an excellent, well-reasoned, common sense opinion.  In this case, you had two cops who were focused on the faster, cheaper way to get the evidence.  In pursuing the faster, cheaper way, they violated the rules.  It’s pretty simple, if you ask someone to disclose the password to your phone, which you have a warrant for, and they refuse, then fine, take the phone, take it to your digital forensic expert, and whatever you find, you find.  But at least you didn’t violate anyone’s rights.
    Entering the password is “testimonial,” similar to a head nod.  An order to transfer information from your mind into the phone to successfully unlock it is incriminating because it means not only that you own the phone, but also you put the evidence on the phone.  At least implicitly then, you acknowledge you committed the crimes.
    I think Judge Ryan is a little “naïve” for thinking this didn’t count as “badgering.”

  6. John says:

    Those who would cite Hubbell as supporting the majority’s opinion are mistaken.  That opinion expressly states that compelled testimony is protected, not physical acts:
    “The word ‘witness’ in the constitutional text limits the relevant category of compelled incriminating communications to those that are ‘testimonial’ in character. As Justice Holmes observed, there is a significant difference between the use of compulsion to extort communications from a defendant and compelling a person to engage in conduct that may be incriminating. Thus, even though the act may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice. The act of exhibiting such physical characteristics is not the same as a sworn communication by a witness that relates either express or implied assertions of fact or belief.”
    And K Fischer, doesn’t your quote from Hubbell show the flaw in the majority’s reasoning?  Mitchell didn’t actually speak and instead merely entered the passcode to unlock the phone. Isn’t that the same as handing over “the key to the strongbox?”  So if this is not testimonial, where is the violation? I think the majority didn’t quote this section because it hurts their argument.  
    To get around this problem the majority opinion says that there is no need to determine whether the action was testimonial at all, which is not the law. And the majority’s reliance on McNeil for this point is wrong, as that case specifically says that the “second layer of prophylaxis” makes the “suspect’s statements” inadmissible.  It is not a constitutional violation, nor is it “badgering,” to simply ask someone to unlock a door, or hand over a key to a safe, or to enter a passcode in a phone because there is no statement to protect.
    I think reasonable people can disagree on what the law should be here, but rather than take on the hard question of whether the act of entering the passcode was testimonial the majority just hand-waives its way through the analysis to get the result they want. 

  7. Zachary D Spilman says:

    You’re not wrong, John, to highlight that Hubbell requires compelled testimony. However, you’re overlooking the fact that CAAF’s decision is based on a plainly-worded blanket prohibition contained in Military Rule of Evidence 305(c)(2), and not on some judicial application of a Constitutional prohibition. 

    We can debate the wisdom of 305(c)(2) (though I think there’s a good reason for a military-specific suppression rule based on Edwards, considering the uniquely-coercive military environment), but its application to the facts of this case seems pretty clear. 

  8. AF Capt says:

    @John: The important distinction between the physical exemplars and passcodes is explained in Hubbell.  Citing Curcio v US, the Court explained, “It was unquestionably necessary for respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena.  The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.”
    The issue for disclosure of a passcode is that it is a governmental act compelling an individual to disclose the contents of their mind (e.g., the code) rather than simply providing that which is not cognitively based (e.g., a blood sample, fingerprint, etc.)  In a sense it is analogous to the plain view exception to the 4th Amendment.  The government may observes from a lawful position what you have simply left out in plain view because it is not intruding upon any privacy.  In contrast, compelling disclosure of a passcode is an intrusion upon the privacy of one’s own mind.

  9. AF Capt says:

    I read Hubbell again, and I don’t know if you caught this part, but I think it stands for the premise that physical acts can be testimonial and criticizes the argument that mere physical acts are nontestimonial as anemic:
    The Government’s anemic view of respondent’s act of production as a mere physical act that is principally nontestimonial in character and can be entirely divorced from its “implicit” testimonial aspect so as to constitute a “legitimate, wholly independent source” (as required by Kastigar) for the documents produced simply fails to account for these realities.
    U.S. v. Hubbell, 530 U.S. 27, 43 (2000)
    The issue in Hubbell was whether requiring the Defendant to produce certain documents for the Government violated the 5th Amendment.  There was no testimony in that case, either. It was the physical acts of producing documents.  So, your argument that Hubbell only prohibited testimony and not physical acts is misplaced.  I think forcing a Defendant to open his iPhone using his passcode would make it unquestionably necessary for Mitchell to make extensive use of the contents of his own mind in identifying the unique passcode he created for his phone.  This testimonial act would be like telling an inquisitor the combination to a wall safe.

  10. k fischer says:

    AF Capt/John, 
    I apologize.  I wrote the post at 11.6.17 @1537 hrs.  I was going to address it to AF Capt, as well, so I had AF Capt on the brain.  Didn’t mean to steal your identity.