Cellphones

As military defense lawyers we often see smartphone and computer evidence in our trials. The evidence can range from text messages, emails, photos, location data, and metadata showing what kinds of information you Google’d for. It is not helpful if you are accused of attempted murder with poison, and they find lots of searches looking for undetectable poisons.

In 2018 there were an estimated 396 million smartphones and cellphone accounts nationwide. Besides the possibility there is evidence of a crime, a lot of your most important personal information is on your smartphones (banking information, contacts, passwords to other applications, etc., etc., etc.). I say smartphone rather than cellphone because of the extraordinary leaps in technology. In United States v. Riley, the U.S. Supreme Court said,

“modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smartphone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. See A. Smith, Pew Research Center, Smartphone Ownership—2013 Update (June 5, 2013).

Smartphones are mini-computers. Invading ayour smartphone is potentially more harmful to your privacy than invading a house or even early cellphones.

Professor Orin Kerr is a prolific writing on technology and forensic examinations of smartphones and computers. He has new article–Orin S. Kerr, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021). He notes that the law of whether compelling entry of a cellphone password, even with a search warrant, violates the Fifth Amendment, is in flux. Depending on the place of the incident, the courts take differing views on the Fifth Amendment issue. He predicts that soon the SCOTUS will have to take up the case because of the circuit split and frequency of the issue. The resolution of the issue will be interesting, especially when Justice Gorsuch gets to read all about it. Prof. Kerr has also written, Compelled Decryption and the Privilege Against Self-Incrimination. 97 TEXAS L. REV. (Online version) (2020). And the NACDL has an online primer discussing United States v. Riley, 134 S.Ct. 2473 (2014). another interesting read is, Nicole Friess, When Rummaging Goes Digital: Fourth Amendment Particularity and Stored E-Mail Surveillance, 90 NEB. L. REV. 971 (2013). Here is an interesting piece on just how frequent and in-depth are cellphone searches in the United States.

If you are called in to be taken for an interview with military investigators, do not take your phone with you. Do not destroy it or anything that might be on it, just don’t take it to the interrogation.

Any competent military defense counsel should tell you DO NOT consent to the taking or search of a phone make them get a warrant. Do this even if you don’t there is anything relevant on the phone. You will be surprised, as have any number of clients who have to explain recovered information they thought had been deleted.

Should it be too late–contact a military defense lawyer immediately. The goal is to revoke any consents–it may be too late, but give it a try and make a record of what you did.

Defending a court-martial under the UCMJ is made more difficult for us, your military defense counsel, when investigators have searched your phone and found something prosecutors think is damning.

From CAAF: Orders Granting Petition for Review–No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. In this case (ACCA opinion), Eugene’s problem began when his wife gave permission to CID for seizure and search of his cellphone. Thus, we have a third-party search. Eugene then tried to get the cellphone back which leads to the first issue above—he didn’t get it, they searched it, and they found evidence against him. Part of his problem is of his own creation it seems. Prior to going into the field, he gave his cellphone to his wife, so she could pay bills and because he was not allowed to take the cellphone to the field. He had already her to register her fingerprint on the phone, and he never placed any restrictions on her use of the cellphone. Turns out that his wife found some incriminating materials which she told the platoon sergeant about. In principle, the investigators seem to have been acting within the law. They did not, however, get a search warrant because they were relying on a theory of common authority. By the time Eugene tried to get his phone back, the search had already been done.

Note that CAAF has jurisprudence on third-party consent post Randolph v. Georgia, for example: Where one party has joint access and control to a property and voluntarily consents to a search, the warrantless search is reasonable. United States v. Weston, 67 M.J. 390, 392 (C.A.A.F. 2009).

Give a civilian military defense counsel a call if you have a situation where your phone or computers are seized—the earlier you call the better we can help.