A.F. Ct.Crim.App.: After defendant lawyered up, asking him for his cell phone password violated the Sixth Amendment

After defendant lawyered up, asking him for his cell phone password violated the Sixth Amendment, and the statement giving the password must be suppressed. United States v. Bondo, 2015 CCA LEXIS 89 (A.F. Ct. Crim. App. March 18, 2015) (unpublished):

In Hutchins, 72 M.J. at 299, our superior court held that where that appellant invoked his right to counsel and investigators later asked to search his belongings, this action violated that appellant’s Sixth Amendment rights because the investigator initiated contact to further the investigation. The court held that this action involved a “reinitiation of communication” in violation of that appellant’s expressed invocation of his right to counsel. Id. Similarly, we hold that law enforcement investigators who ask a suspect for a password to a cell phone that they believe contains evidence of an offense is more than a routine incident of the custodial relationship. Routine incidents of the custodial relationship are akin to asking for a drink of water or to use the telephone. Bradshaw, 462 U.S. at 1045. The scenario here is far removed from those routine incident scenarios.

The Government alternatively argues that the law enforcement agents were acting within the scope of the valid warrant when they required the appellant to produce his password. We leave as unresolved whether a properly issued warrant may compel a suspect to produce a password.⁹ The warrant in this case simply authorized “the seizure of the following specified property: Samsung T-Mobile cell phone owned by [the appellant].” Even if a warrant could compel a suspect to produce a password for law enforcement access to incriminating evidence, this one did not.

9. See generally Dan Terzian, The Fifth Amendment, Encryption, and the Forgotten State Interest, 61 UCLA L. Rev. Disc. 298 (2014) (discussing the use of subpoenas to require suspects to produce passwords).

When there is an error in admitting evidence obtained in violation of the Edwards rule, we test to see if the error was harmless beyond a reasonable doubt. See Hutchins 72 M.J. at 299 (testing error for harmless beyond a reasonable doubt). Prosecution Exhibit 3 was the printout of text messages recovered from the appellant’s cell phone between him and Ms. SB. Ms. SB did not testify at trial. Her father testified instead and identified her phone number. Without the admission of the text messages there was no evidence to convict the appellant of the offense of communicating indecent language with Ms. SB. We conclude the error was not harmless beyond a reasonable doubt as to the Second Additional Charge and Specification and set it aside.