The problem stems from a harassment case upon a soldier who broke apparently repeatedly a no-contact order dividing him from his wife. After being taken into custody, Sgt. Edward Mitchell asked to speak to a lawyer. Rather than present him with a lawyer, prosecutors asked him to unlock his phone instead.
Appellee requested his right to counsel at about 10:50 a.m. Appellee’s platoon commander signed a “Receipt for Pre-Trial/Post Trial Prisoner or Detained Person,” and SSG Knight accompanied Appellee back to his unit, where he resided in the company area and obtained both his Kyocera phone and iPhone.
In the office, Investigator Tsai told Appellee of the textual search and seizing authorization, and Appellee questioned the efficacy of verbal authorizations, asking to see a recorded one. Around this time, the officer left the office. Investigator Tsai told Appellee that verbal signatures are valid and asked if Appellee had any cell phones on his person. Appellee then gave an iPhone to the investigators. Investigator Tsai saw that the iPhone was guarded by a numeric passcode, and asked Appellee to give it. Appellee refused.
At this time, this line of questioning should have been left. Actually, it should never more have begun without Mitchell’s lawyer present. But the prosecutors apparently thought that asking, rather than obtaining, Mitchell to unlock his phone made the whole thing consensual.
Investigator Tsai then returned the phone back to Appellee and asked him to unlock it, saying: “If you could unlock it, excellent if you could help us out. But if you don’t, we’ll wait for a digital forensic specialist to unlock it.” Neither prosecutor knew at the time that Appellee’s iPhone had two finger/thumb prints stored, and could have possibly been opened using “Touch ID capabilities.” Appellee then opened his passcode and unlocked the phone: “Appellee was also required to forever disable the cell phone’s passcode protection. In order to do so, he was needed to access the phone’s settings and type-in his numeric code (PIN) two more times to fully disable the phone’s protections.”
The court also points out that just asking nicely for an in-custody defendant to “help out” the government by perhaps incriminating themselves doesn’t make it any more Fifth Amendment-compliant, nor does it alter the nature of questioning from an “investigation” to “a couple of guys talking about stuff with certainly no criminal case-building implications.”
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