CAAF will hear oral argument in the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page), on Tuesday, April 4, 2017, at at 12:30 p.m., at the Notre Dame Law School, Notre Dame, Indiana.

The case continues a prosecution appeal under Article 62 of a military judge’s ruling that suppressed the contents of Sergeant (E-5) Mitchell’s cell phone because military investigators continued to question him after he requested an attorney and that questioning led to Mitchell decrypting the device for the investigators. The Army Court of Criminal Appeals affirmed the military judge’s suppression 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.

Mitchell is charged with various offenses at a general court-martial. The bulk of the charges relate to allegations that Mitchell harassed his ex-wife. The search of Mitchell’s phone was based on a claim by his ex-wife that Mitchell contacted her using texting applications after he was issued a no-contact order. Mitchell was interrogated on this topic by military criminal investigators at a military police station where Mitchell invoked his right to counsel. Mitchell was then escorted back to his unit, but investigators immediately obtained a search authorization for the phone and Mitchell was brought to his company commander’s office where the investigators met him. There:

The investigators told Appellee [Mitchell] that they had a verbal search and seizure authorization for his electronic media. (JA 479). Appellee handed his iPhone 6 to the investigators. (JA 480). Investigator BT asked Appellee for his PIN, but Appellee refused to provide it. (JA 480). The military judge found as a fact that the investigators next said, ‘”[I]f 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,’ or words to that effect.” (JA 480). Appellee refused to provide his PIN, but unlocked the phone and gave it back to the investigators. (JA 480).

Army App. Gov’t Div. Br. at 5. Mitchell’s brief, however, offers an additional fact:

According to SSG Vaughn, the investigators “badgered [SGT Mitchell]” multiple times until SGT Mitchell provided the passcode or unlocked his phone. (R. at 275).

App. Br. at 5.

The military judge concluded that the continued interrogation and Mitchell’s act of decrypting the phone violated Mitchell’s rights under the Fifth Amendment, and she applied Mil. R. Evid. 305(c)(2) to suppress the phone and its contents. The Army Appellate Government Division challenges that ruling and result with a broadside of complex and interwoven legal arguments that ultimately suggest that a suspect has no right to refuse to produce a decryption passcode. The Air Force Appellate Government Division supports the Army Division as amicus curiae. A pair of law professors also appear as amicus in support of the Government (by invitation of the court).

Mitchell responds to the various arguments advanced by the Government divisions, however his brief ultimately argues that the plain language of Mil. R. Evid. 305(c)(2) dictates the suppression of the phone in his case. That rule states:

(2) 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 Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU of the District of Columbia support Mitchell as amicus curiae, arguing in part that “compelled decryption is inherently testimonial.” EFF Amicus Br. at 12. A law student (with professorial oversight) also appears as amicus for Mitchell.

The Army Appellate Government Division’s brief is long and somewhat unwieldy. Using 13,098 of the 14,000 words permitted by CAAF’s rules, the brief seems to make every possible argument for reversal all at once. It argues that Mitchell wasn’t compelled to decrypt his phone (Gov’t Div. Br. at 9); that Mitchell’s actions in decrypting the phone were not testimonial (Gov’t Div. Br. at 13-23); that Mitchell was not in custody he decrypted his phone (Gov’t Div. Br. at 38); that Mitchell wasn’t badgered or coerced (Gov’t Div. Br. at 42); that everything learned from the decryption was a foregone conclusion (Gov’t Div. Br. at 23-28); that the military judge’s suppression ruling was overbroad (Gov’t Div. Br. at 28); that suppression isn’t an available remedy (Gov’t Div. Br. at 49); and that the contents of the phone would have been inevitably discovered (Gov’t Div. Br. at 51). The Air Force Appellate Government Division, as amicus curiae, adds that Mitchell’s “act of unlocking his phone was also not incriminating.” (A.F. Amicus Br. at 4).

It’s unlikely that the Army Appellate Government Division will pick a single best argument for the court to consider tomorrow, but one hopes that it will at least limit itself to the strongest half-dozen.

Mitchell’s brief is comparatively simple, offering a single theory on which CAAF might affirm the military judge’s suppression ruling:

[CAAF should] affirm the court below because the plain language of Mil. R. Evid 305(c)(2), and the repeated Edwards violations by police in this case warrant suppression of the decrypted cell phone and its contents.

App. Br. at 11. Mitchell’s brief also asserts that two of the certified issues embody assumptions that are contrary to the record:

Specifically, the first certified issue assumes that SGT Mitchell “voluntarily” unlocked the iPhone. The military judge, however, found that investigators “required” SGT Mitchell to disable the security on the iPhone, and that such action was not voluntary. (App. Ex. LXXXV, p. 5, n. 5). . . . Similarly, the second certified issue states that SGT Mitchell had “returned to his place of duty” at the time of his second interrogation. The military judge, however, found that SGT Mitchell was “not free to leave” his commander’s office, or the presence of the investigators, and “[u]nder the circumstances of this case a reasonable man in the same position would have believed his freedom of action was significantly curtailed – as if to be under arrest.” (App. Ex. LXXXV, p. 8).

App. Br. at. 10-11. CAAF’s Rule 21(b)(1) states that issues raised in a petition for grant of review “should not be argumentative.” There is not, however, a similar rule for a certification.

Many of the issues raised by the Army Appellate Government Division are unsettled in the civil courts, and CAAF will likely look for a way to avoid making new law regarding self-incrimination and decryption (particularly in a case where the prosecution has other ways to prove the messages were sent, such as by the testimony of the ex-wife). Mil. R. Evid. 305(c)(2) seems to provide the easiest route to affirmation, as it plainly states that any evidence derived from an interrogation after a suspect requests counsel is inadmissible unless counsel was provided. But the Army Appellate Government Division doesn’t agree that the Rule means what it says:

Appellee argues that the exclusionary rule extends to bar evidence derived from Edwards violations under Mil. R. Evid. 305. (Appellee’s Br. 35-39). Mil. R. Evid. 305 does not extend suppression to derivative evidence for two reasons. First, the Edwards derivative evidence language in the rule is a scrivener’s error and the drafter’s analysis shows an intent to make no substantive change. . . . Second, by its own terms, Mil. R. Evid. 305 only bars derivative evidence that is the result of interrogation. Whatever the merits of Appellee’s argument that the investigators violated Edwards, there is no argument that they “interrogated” him by asking for his PIN.

Gov’t Div. Br. at 21-24 (emphasis in original). While it’s hard to see how the investigative questioning about the phone was not a continuation of the earlier interrogation, the Army Appellate Government Division’s analysis of Mil. R. Evid. 305(c)(2) – as amended by the 2013 restyling (discussed here and here) – seems to be obviously flawed. The current rule is consistent with the prior version of Mil. R. Evid. 305 which stated that a statement is involuntary and therefore, under Mil. R. Evid. 304(a), inadmissible when:

an accused or suspect interrogated under circumstances described in subdivision (d)(1)(A) [custodial interrogation by person subject to Article 31] requests counsel, any subsequent waiver of the right to counsel obtained during a custodial interrogation concerning the same or different offenses is invalid unless the prosecution can demonstrate by a preponderance of the evidence that—

(i) the accused or suspect initiated the communication leading to the waiver; or

(ii) the accused or suspect had not continuously had his or her freedom restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver.

Mil. R. Evid. 305(g)(2)(B) (2012). The Rule may be read in a number of ways: as a codification of Edwards, as a uniquely-military rule to scrupulously protect the uniquely-military Article 31 rights, or as a combination of these factors. But its basic principle seems perfectly clear: that custodial interrogation must stop when a suspect requests an attorney, else any evidence obtained from further questioning will be inadmissible at court-martial.

One desirable aspect of the military justice system and its rules is simplicity. Compared to the Army Appellate Government Division’s arguments to CAAF, the military judge’s ruling and the Army CCA’s affirmation of that ruling are remarkably simple. It seems likely that CAAF will want to keep it that way.

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

8 Responses to “Argument Preview: Self-incrimination and decryption of a mobile phone in United States v. Mitchell, No. 17-0153/AR”

  1. Matt says:

    Well, the courts have long held that Article 31 doesn’t mean what it says in clear language.  It doesn’t seem much of a stretch to say that MRE 305 also doesn’t mean what it clearly states.  that being said, I am a little surprised GAD decided to pursue this one.  It would seem easy enough to prove without his phone, as the wife can testify about the texts and probably has them anyway.  At a minimum, phone records would establish if he was texting her, which would violate the no contact order regardless of what the texts say.  GAD risks having CAAF reinforce a defense friendly rule without any real upside.

  2. Zachary D Spilman says:

    The upside is the possibility that CAAF finds no right to refuse to decrypt.

    Insofar as compelling service members to do things that aid the prosecution of themselves is ever an upside.

  3. Lieber says:

    Matt: off the top of my head the M.R.E. 1001-1004 series is a factor and by “texting applications” I’m guessing they don’t mean MMS which means the phone records won’t help you.

  4. Scott says:

    Liber is right is right about the phone records not helping – it’s becoming less and less common for communications (message or call) to show up on phone records due to the proliferation of apps.  Even if a traditional “app” is not being used, texts sometimes won’t show up if they don’t use data (either because they were sent on wifi or because they were sent iPhone to iPhone). 

  5. Lieber says:

    What Scott meant is rather because if they do use data then the phone company doesn’t have a record.  Traditional texts (whether texts only or multimedia (MMS)) used a protocol that the carriers did have visibility on (thus knowing how many texts were sent and who they were sent to).  Unlimited text plans happened in the U.S. but not (by and large) in Europe or South America so the use of WhatsApp and competitors took off in those countries (as texting was expensive).  In the U.S. iMessage took off for iphone users (which includes traditional texts within the app (the messages sent in green) for when communicating with Android users.  However, apps such as iMessage, WhatsApp, Hangouts, Telegram, Snapchat, Whisper and KIK are becoming the defacto standard everywhere as they run over data (so the carrier has no log), many of them (such as iMessage and Telegram (and I think WhatsApp now) have end-to-end encryption and they have much richer user interfaces and experiences than are possible with traditional texts.
    In a nutshell, traditional texting is a dying technology. 

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

    “The warrant requires you to give us your password” is tantamount to saying “the law requires you to incriminate yourself.”  While Mitchell was required to turn over his phone, he wasn’t required to turn over his password or to permanently disable encryption capabilities to allow access.  If the Government wants to get into the phone, then it’s got the $$ and the power (theoretically) to hack into it.  This is something the Government should’ve learned from Apple v. FBI.
     
    And this is why people should use passwords instead of fingerprints or face recognition technology.

  7. Charlie Gittins says:

    Tami for the win.  

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

    I appreciate the sentiment Charlie.  I am always amazed at the number of people who say they don’t password protect their phones.  Of course when the understand the implications of not password protecting, they freaked out and started password protecting.