United States v. Mitchell

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellant
v.
Edward J. MITCHELL II, Sergeant
United States Army, Appellee
No. 17-0153
Crim. App. No. 20150776
Argued April 4, 2017—Decided August 30, 2017
Military Judge: Rebecca K. Connally
For Appellant: Captain Samuel E. Landes (argued); Colo-
nel Mark H. Sydenham and Lieutenant Colonel A. G.
Courie III (on brief); Major Anne C. Hsieh.
For Appellee: Captain Joshua B. Fix (argued); Lieutenant
Colonel Christopher D. Carrier and Captain Katherine L.
DePaul (on brief); Major Andres Vazquez Jr.
Amici Curiae for Appellant: Colonel Katherine E. Oler,
Major Mary Ellen Payne, and Gerald R. Bruce, Esq. (on
brief)—for Air Force Appellate Government Division.
Sean Patrick Flynn (law student) (argued); Alyssa
Hughes (law student), Jimmy Gurulé, Esq. (supervising
attorney), and Marah McLeod, Esq. (supervising attor-
ney) (on brief)—Notre Dame Law School.
Amici Curiae for Appellee: Jamie Williams, Esq., and
Mark Rumold, Esq. (Electronic Frontier Foundation);
Brett Max Kaufman, Esq., and Patrick Toomey, Esq.
(American Civil Liberties Union); and Arthur B. Spitzer,
Esq, and Scott Michelman, Esq. (ACLU of the District of
Columbia) (on brief)—for Electronic Frontier Founda-
tion, American Civil Liberties Union, and ACLU of the
District of Columbia. Dominic X. Barceleau (law stu-
dent) (argued); Stephen F. Smith, Esq. (supervising at-
torney) (on brief)—Notre Dame Law School.

Chief Judge STUCKY delivered the opinion of the
Court, in which Judges OHLSON and SPARKS, and
Senior Judge ERDMANN, joined. Judge RYAN filed a
separate dissenting opinion.
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 This opinion is subject to revision before publication

Chief Judge STUCKY delivered the opinion of the Court.

We address today the Fifth Amendment limits on asking
a suspect to unlock his phone when the device has been
seized pursuant to a valid search and seizure authorization. 1
Because Appellee had previously invoked his right to coun-
sel, we hold that the Government violated his Fifth Amend-
ment rights as protected by Edwards v. Arizona, 451 U.S.
477 (1981), when agents asked him in the absence of counsel
to enter the phone’s passcode. Pursuant to the plain lan-
guage of Military Rule of Evidence (M.R.E.) 305(c)(2), the
contents of the phone must therefore be suppressed.
I. Background
Sergeant Edward J. Mitchell II (Appellee) is charged
with many offenses, including using calls, text messages,
and lewd online postings to harass his wife, in violation of a
no-contact order issued after she made an allegation of sex-
ual assault. 2 The facts relevant to this appeal occurred after
Appellee’s wife told military police that Appellee was calling
and texting her with numbers artificially created by applica-
tions on his phone or computer (spoofing), and had posted
nude photographs of her online and in cell phone communi-
cation applications, Whisper and Kik.
Staff Sergeant (SSG) Knight, a member of Appellee’s
unit, escorted him to a military police station in Fort Hood,
Texas, to discuss the allegations, where Investigator Tsai
informed Appellee of his rights. Appellee invoked his right to
counsel at approximately 10:50 a.m. Appellee’s platoon lead-
er signed a “Receipt for Pre-Trial/Post Trial Prisoner or De-
tained Person,” and SSG Knight escorted Appellee back to

1 We heard oral argument in this case at the University of
Notre Dame Law School, Notre Dame, Indiana, as part of the
Court’s Project Outreach. This practice was developed as a public
awareness program to demonstrate the operation of a federal
court of appeals, and the military justice system.
2 The facts stated in the text are drawn from the military
judge’s findings of fact. Both parties ask the Court to rely upon
additional facts taken from the record rather than official find-
ings, but we need not address these putative facts.
 United States v. Mitchell, No. 17-0153/AR
Opinion of the Court

his unit, where he remained in the company area and ac-
cessed both his Kyocera phone and iPhone.
Meanwhile, Investigator Tsai obtained a verbal authori-
zation to seize and search various electronic media belong-
ing to Appellee, including cell phones, for “evidence of spoof-
ing calls, text messages or other similar communications …
and other similar software capable of allowing communica-
tions in a spoofing … fashion.” Appellee’s commander
learned that investigators were on their way, and a member
of Appellee’s company was directed to find and bring Appel-
lee to the commander’s office. When Investigators Tsai and
Carlton arrived between 1:00 and 1:30 p.m., little more than
two hours after the original request for counsel, Appellee
was waiting in the office with his commander.
In the office, Investigator Tsai informed Appellee of the
verbal search and seizure authorization, and Appellee ques-
tioned the validity of verbal authorizations, asking to see a
written one. Around this time, the commander left the office.
Investigator Tsai told Appellee that verbal authorizations
are valid and asked if Appellee had any cell phones on his
person. Appellee then handed an iPhone to the investiga-
tors. Investigator Tsai saw that the iPhone was protected by
a numeric passcode, and asked Appellee to provide it. Appel-
lee refused.
Investigator Tsai then handed the phone back to Appel-
lee and asked him to unlock it, saying: “if 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.” Neither investiga-
tor knew at the time that Appellee’s iPhone had two fin-
ger/thumb prints stored, and could have potentially been
opened using “Touch ID capabilities.” Appellee then entered
his passcode and unlocked the phone: “[Appellee] was also
required to permanently disable the cell phone’s passcode
protection. In order to do so, [he] was required to access the
phone’s settings and enter his numeric passcode (PIN) two
more times to fully disable the phone’s protections.” (Foot-
note omitted.)
After Appellee permanently unlocked and surrendered
his iPhone, investigators directed Appellee to his vehicle and
barracks room to execute the rest of the search and seizure

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Opinion of the Court

authorization. In Appellee’s room, investigators seized Ap-
pellee’s computer, and asked him to provide the password.
He refused, and the investigators did not press him further.
Following a defense motion to suppress, the military
judge held that the Government had violated Appellee’s
Fifth Amendment right against self-incrimination and his
Edwards right to counsel, and suppressed “[t]he iPhone at
issue and any evidence derived therefrom.” 3 The Govern-
ment appealed pursuant to Article 62, Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. § 862 (2012). The United
States Army Court of Criminal Appeals (CCA) held that the
military judge’s findings of fact were ambiguous, set aside
the ruling suppressing the evidence, and remanded, order-
ing the military judge to make detailed findings. United
States v. Mitchell, No. ARMY MISC 20150776, 2016 CCA
LEXIS 179, 2016 WL 1128111 (A. Ct. Crim. App. Mar. 18,
2016). In her second order, the military judge clarified, inter
alia, that Appellee was in custody at the police station and
in his commander’s office, although not during the interven-
ing time, and again suppressed the iPhone and its contents.
After the Government again appealed, the CCA upheld the
order. United States v. Mitchell, No. ARMY MISC 20150776,
2016 WL 4529149 (A. Ct. Crim. App. Aug. 29, 2016) (per
curiam). The CCA later denied a motion for reconsideration
and suggestion for consideration en banc. United States v.
Mitchell, No. ARMY MISC 20150776 (A. Ct. Crim. App. Oct.
24, 2016) (order). The Government then certified the case for
our review.
II. Analysis
The Fifth Amendment provides that “[n]o person … shall
be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. Because “[t]he circumstanc-
es surrounding in-custody interrogation can operate very
quickly to overbear the will of one merely made aware of his
privilege by his interrogators.… the right to have counsel
present at the interrogation is indispensable to the protec-

3 The order also discussed various Fourth Amendment claims,
and suppressed a book found in Appellee’s car on those grounds.
That ruling is not before the Court.

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tion of the Fifth Amendment privilege.” Miranda v. Arizona,
384 U.S. 436, 469 (1966).
Once a suspect in custody has “expressed his desire to
deal with the police only through counsel, [he] is not subject
to further interrogation by the authorities until counsel has
been made available to him, unless the accused himself ini-
tiates further communication.” Edwards, 451 U.S. at 484–
85; see M.R.E. 305(e)(3). “In every case involving Edwards,
the courts must determine whether the suspect was in cus-
tody when he requested counsel and when he later made the
statements he seeks to suppress.” Maryland v. Shatzer, 559
U.S. 98, 111 (2010). We have previously recognized that
“Edwards clearly applies to the military.” United States v.
Dock, 40 M.J. 112, 115 (C.M.A. 1994).
We review a military judge’s ruling on a motion to sup-
press for an abuse of discretion and consider the evidence in
the light most favorable to the party that prevailed at trial.
United States v. Rodriguez, 60 M.J. 239, 246–47 (C.A.A.F.
2004). “A military judge abuses [her] discretion if [her] find-
ings of fact are clearly erroneous or [her] conclusions of law
are incorrect.” United States v. Olson, 74 M.J. 132, 134
(C.A.A.F. 2015) (internal quotation marks omitted) (citation
omitted). These standards also apply to interlocutory ap-
peals under Article 62, UCMJ. United States v. Michael, 66
M.J. 78, 80 (C.A.A.F. 2008).
Under the circumstances presented, we conclude that the
Government violated Appellee’s Fifth Amendment right to
counsel as protected by Miranda and Edwards. The Gov-
ernment does not contest that Appellee was in custody when
he invoked his right to counsel while detained at the mili-
tary police station. It is almost equally clear that Appellee
was in custody in his commander’s office when investigators
asked him to unlock his iPhone. “Two discrete inquiries are
essential to the determination: first, what were the circum-
stances surrounding the interrogation; and second, given
those circumstances, would a reasonable person have felt he
or she was not at liberty to terminate the interrogation and
leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). “[T]he
ultimate inquiry is simply whether there is a formal arrest
or restraint on freedom of movement of the degree associat-
ed with a formal arrest.” California v. Beheler, 463 U.S.

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1121, 1125 (1983) (internal quotation marks omitted) (cita-
tion omitted). Courts evaluate:
(1) whether the person appeared for questioning
voluntarily; (2) the location and atmosphere of the
place in which questioning occurred …[;] (3) the
length of the questioning …[;] [(4)] the number of
law enforcement officers present at the scene[;] and
[(5)] the degree of physical restraint placed upon
the suspect.
United States v. Chatfield, 67 M.J. 432, 438 (C.A.A.F. 2009)
(internal quotation marks omitted) (citing Oregon v.
Mathiason, 429 U.S. 492, 495 (1977); United States v. Mittel-
Carey, 493 F.3d 36, 39 (1st Cir. 2007)).
When investigators confronted Appellee to execute the
search and seizure authorization, he had been in custody
less than two hours earlier at a military police station,
where he originally invoked his right to counsel. 4 Pursuant
to his commander’s orders, Appellee was taken to his com-
mander’s office for the express purpose of allowing the
agents to again speak with him and execute the authoriza-
tion. Thus, (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. Fi-
nally, (5) although Appellee was not handcuffed, he was re-
strained just as completely by an environment in which both
his command and the Government investigators required
him to remain in place. Under these circumstances, Appellee
was subject to “‘restraint on freedom of movement’ of the de-
gree associated with a formal arrest,” and was therefore in
custody. Beheler, 463 U.S. at 1125 (citation omitted).
In addition to being in custody, Appellee was also subject
to interrogation. Interrogation of a suspect includes “not on-

4 This break in custody was obviously less than the fourteen
days required to terminate Edwards protection. Shatzer, 559 U.S.
at 109–10.

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ly … express questioning, but also … any words or actions
on the part of the police (other than those normally at-
tendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response
from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301
(1980) (footnote omitted); Edwards, 451 U.S. at 486–87 (ap-
plying the Innis standard).
After investigators seized Appellee’s iPhone and saw that
it was passcode protected, they immediately “asked [him] if
he could provide the PIN to unlock the phone.” When Appel-
lee refused, the agents handed his phone back to him and
asked him to “help [them] out” by entering the passcode
himself. Appellee “eventually complied with the nature of
their request” and permanently unlocked his phone for the
agents.
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 con-
sent to search is not an interrogation, citing this Court’s rea-
soning 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 Ap-
pellee to state his passcode involves more than a mere con-
sent 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).
When the agents switched tactics and succeeded in get-
ting Appellee to enter his passcode rather than verbally pro-
vide it, that request was part of the same basic effort to con-
vince Appellee to provide the information necessary for the
Government to access and search the contents of his phone,
and to help prove that he himself had the same ability

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(which also extends beyond a mere consent to search). 5 By
asking Appellee to enter his passcode, the Government was
seeking an “answer[] … which would furnish a link in the
chain of evidence needed to prosecute” in the same way that
Hoffman and Hubbell used the phrase. Not only did the re-
sponse give the Government access to direct evidence as in
Hubbell, it also constituted direct evidence as in Hoffman.
See Hubbell, 530 U.S. at 39–40 (“The documents were pro-
duced before a grand jury …. The use of those sources of in-
formation eventually led to the return of an indictment ….”);
Hoffman, 341 U.S. at 488 (“[T]ruthful answers … to these
questions might have disclosed that he was engaged in such
proscribed activity.”). As even the dissent concedes, Appel-
lee’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 Inves-
tigators Tsai and Carlton could have testified to this act con-
founds any contention that “entering the passcode—was not
incriminating.” Id. at __ (7).
Viewed as a whole, the Government’s inquiries constitut-
ed “not only … express questioning, but also … words or ac-
tions … that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” Innis,
446 U.S. at 301 (footnote omitted). Without the benefit of
counsel that he had requested, subjecting Appellee to a cus-
todial interrogation endangered his Fifth Amendment privi-
lege against self-incrimination and violated the protective
rule created in Edwards. 451 U.S. at 484–85. In light of this
holding, we need not reach the question of whether the Gov-
ernment directly violated Appellee’s Fifth Amendment privi-
lege against compelled self-incrimination. We thus do not
address whether Appellee’s delivery of his passcode was
“testimonial” or “compelled,” as each represents a distinct
inquiry. Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S.
177, 189 (2004).

5 Accordingly, we need not consider the applicability of this
Court’s holding in United States v. Hutchins that a request for
consent to search may in certain circumstances violate Edwards.
72 M.J. 294, 298–99 (C.A.A.F. 2013).

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Opinion of the Court

The dissent contends that the Fifth Amendment only
protects testimonial communications, Mitchell, __ M.J. at __
(4–6) (Ryan, J., dissenting), but we 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. McNeil v. Wisconsin, 501
U.S. 171, 176–77 (1991); accord Dickerson v. United States,
530 U.S. 428, 442–43 (2000) (upholding Miranda against
legislative challenge, but declining to hold that nothing be-
sides Miranda will ever “suffice to satisfy constitutional re-
quirements”).
Because Edwards forbids interrogation following the in-
vocation of the Miranda right to counsel, not just interroga-
tion that succeeds, 451 U.S. at 484–85, it follows that those
who seek Edwards protection do not need to establish that
the interrogation produced or sought a testimonial state-
ment in order to establish a violation. Rather, only interro-
gation itself must be established, and Appellee has demon-
strated that entry of his passcode was an “incriminating
response” that the Government should have known they
were “reasonably likely to elicit.” Innis, 446 U.S. at 301.
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 inter-
pretation of Edwards makes intuitive sense, because badger-
ing an unrepresented suspect into granting access to incrim-
inating 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 viola-
tion of Appellee’s rights under Edwards was complete. The
only question that remains is the proper remedy. Under the
plain language of the Military Rules of Evidence, any evi-
dence derived from a violation of Edwards must be sup-
pressed. “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 de-
rived from the interrogation after such request, is inadmissi-
ble against the accused unless counsel was present for the
interrogation.” M.R.E. 305(c)(2) (emphasis added).

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The Government argues that the suppression of deriva-
tive evidence does not extend to violations of the Edwards
rule, citing United States v. Patane, 542 U.S. 630 (2004). In
Patane, a three-justice plurality of the Supreme Court held
that physical evidence discovered as a result of a suspect’s
voluntary statements was admissible at trial, despite the
failure to administer a Miranda warning. Id. at 634. The
Government reasons that if derivative evidence is not sup-
pressed when Miranda’s prophylactic protections are violat-
ed, 6 certainly the same rule applies when the Edwards “se-
cond layer of prophylaxis,” McNeil, 501 U.S. at 176, is
violated. But whatever the merits of the Government’s
Patane argument, the Military Rules of Evidence expressly
provide that “[a]n individual may claim the most favorable
privilege provided by the Fifth Amendment to the United
States Constitution, Article 31, or these rules.” M.R.E. 301(a)
(emphasis added). And though the Government argues that
the derivative evidence language in M.R.E. 305(c)(2) is the
result of a scrivener’s error, those arguments are not per-
suasive. 7

6 Although originally referred to as a prophylactic rule, we
recognize that Miranda actually announced a constitutional rule.
Dickerson, 530 U.S. at 444.
7 The Government argues that the 2013 amendment resulting
in the modern language “was not intended to have any substan-
tive 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 practition-
ers to quickly find the desired rule,” and that changes which “en-
sure that [the rule] addressed admissibility rather than conduct”
were “not intend[ed] to change any result in any ruling on evi-
dence 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 ac-
knowledgment 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).

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Furthermore, the Government has not established that
the contents of Appellee’s phone are admissible because they
would have inevitably been discovered. For the exception to
apply, the Government must “demonstrate by a preponder-
ance of the evidence that when the illegality occurred, the
government agents possessed, or were actively pursuing, ev-
idence or leads that would have inevitably led to the discov-
ery of the evidence in a lawful manner.” United States v.
Wicks, 73 M.J. 93, 103 (C.A.A.F. 2014) (internal quotation
marks omitted) (citations omitted). The Government’s sole
argument8 is that it could have legally compelled Appellee to
“press his finger to the phone and thereby unlock it” under
United States v. Fagan, 28 M.J. 64, 69 (C.M.A. 1989) (“A
servicemember simply has no basis to withhold fingerprints
from military authorities [on Fourth Amendment grounds],
provided that the manner of collecting them is reasonable.”);
see also Doe v. United States, 487 U.S. 201, 210–11 (1988)
(the compulsion of physical, nontestimonial acts is not pro-
hibited by the Fifth Amendment). But the record discloses
no guarantee that this procedure would have succeeded, and
the Government therefore cannot demonstrate inevitability.
Although the iPhone “had Touch ID capabilities” and
“the accused had two finger/thumbprints saved,” we cannot
know whether Appellee had in fact turned fingerprint access
“on” (as opposed to simply saving his fingerprints), because
the phone’s entire security system is now permanently
turned off. Moreover, the Government did not even learn
about the possibility of fingerprint access until April 20,
2016, over fifteen months after the offending interrogation.
We conclude that the Government’s eventual access to the
phone’s contents was not inevitable, but rather “a matter of
mere speculation and conjecture, in which [the Court] will
not engage.” United States v. Maxwell, 45 M.J. 406, 422
(C.A.A.F. 1996).
Although the contents of Appellee’s phone are therefore
inadmissible, Appellee’s physical iPhone should not have
been suppressed, since it was seized pursuant to lawful au-

8 Notably, the Government does not argue that a digital foren-
sic examiner could have bypassed Appellee’s security, as Investi-
gator Tsai claimed.

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Opinion of the Court

thorization prior to the Edwards violation, or any other al-
leged Fifth Amendment violation. The phone itself does not
constitute evidence derived from the illicit interrogation,
and the possibility that a court-martial panel could imper-
missibly review the phone’s contents—since it is now per-
manently unlocked—could be overcome with an instruction
forbidding such use. The military judge therefore abused her
discretion in suppressing the phone itself.
III. Judgment
The decision of the United States Army Court of Crimi-
nal Appeals, to the extent that it affirmed the suppression of
the contents of the iPhone, is hereby affirmed. To the extent
that it affirmed the suppression of the physical phone, it is
reversed. The record is returned to the Judge Advocate Gen-
eral of the Army for transmission to the convening authority
for further proceedings.

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Judge RYAN, dissenting.

I disagree that the Government violated Appellee’s legal
rights by asking him to enter the passcode to unlock his
iPhone, a device the Government had the legal right to seize
and search pursuant to a valid search authorization. It is
abundantly clear that such a request does not constitute an
“interrogation,” see Edwards v. Arizona, 451 U.S. 477, 485
(1981); Military Rule of Evidence (M.R.E.) 305(c)(2), in
derogation of the Fifth Amendment’s protection against
“being compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V [hereinafter Fifth
Amendment]; cf. United States v. Seay, 60 M.J. 73, 78
(C.A.A.F. 2004) (“Edwards [was] adopted in M.R.E. 305[(f)
(version in force in 2002, now M.R.E. 305(c)(2), (4))].”). And,
even assuming it could constitute a testimonial statement,
the entry of a passcode into a phone known to belong to
Appellee does not constitute an incriminating statement. 1
Therefore, I respectfully dissent.

I.

We review a military judge’s ruling on a motion to
suppress for an abuse of discretion. United States v.
Keefauver, 74 M.J. 230, 233 (C.A.A.F. 2015). In doing so, “we
consider the evidence in the light most favorable to the
prevailing party.” United States v. Cowgill, 68 M.J. 388, 390
(C.A.A.F. 2010) (quotation marks omitted). This Court
reviews findings of fact for clear error and conclusions of law
de novo. United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F.
2007). “Whether an interrogation occurred is a question of
law, reviewable de novo by . . . this Court.” United States v.
Kosek, 41 M.J. 60, 63 (C.M.A. 1994); cf. United States v.
Davis, 773 F.3d 334, 338 (1st Cir. 2014); Endress v. Dugger,
880 F.2d 1244, 1249 (11th Cir. 1989).

1 The fact that investigators initially asked Appellee to speak
his passcode is irrelevant for purposes of the Fifth Amendment or
Edwards inquiry as he declined to tell them his passcode—there
was no statement. See United States v. Patane, 542 U.S. 630, 634
(2004) (plurality opinion); McNeil v. Wisconsin, 501 U.S. 171, 176
(1991).
 United States v. Mitchell, No. 17-0153/AR
Judge RYAN, dissenting

I agree that Appellee properly invoked his right to
counsel and was in custody at the time of the request. But
even reviewing the facts in the light most favorable to
Appellee, the military judge erred as a matter of law in
concluding that the below request constitutes interrogation:
If you could unlock it, great, if you could help us
out. But if you don’t, we’ll wait on a—for a digital
forensic expert to unlock it. 2
An “interrogation” does not occur unless law enforcement
officers ask questions “reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v.
Innis, 446 U.S. 291, 301 (1980) (emphasis added).

First, it seems dubious at best to assume that Appellee’s
act of unlocking his iPhone by physically entering his
passcode constituted a “testimonial” event. See United States
v. Venegas, 594 F. App’x 822, 827 (5th Cir. 2014) (per
curiam) (concluding that defendant’s consent to search his
cellular telephone and provision of his passcode were
“neither testimonial nor communicative in the Fifth
Amendment sense” (quotation marks omitted)).

Indeed, the majority opinion has no clear testimonial
statement to work with—despite it being a fundamental
prerequisite for triggering the Fifth Amendment inquiry to
which Edwards is tied. See United States v. Roa, 24 M.J.
297, 299 (C.M.A. 1987) (concluding that the prophylactic
Edwards rule does not prohibit consent requests, because
the Fifth Amendment privilege, and hence Edwards,
“protects only testimonial evidence” (emphasis added)).
Edwards—like Miranda v. Arizona, 384 U.S. 436 (1966)—
merely established a procedural safeguard to protect against
the admission into evidence of self-incriminating testimony
in response to interrogation. Accordingly, Edwards
established a presumption that such statements, made after
a suspect had invoked his right against self-incrimination,

2 The law enforcement officer involved in the exchange with
Appellee indicated at trial that to the best of his knowledge, he
had no reason to believe that the digital forensic examiner could
not unlock Appellee’s iPhone.

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 United States v. Mitchell, No. 17-0153/AR
Judge RYAN, dissenting

are compelled, i.e., involuntary. See Maryland v. Shatzer,
559 U.S. 98, 106 (2010) (“Edwards’ presumption of
involuntariness has the incidental effect of ‘conserving
judicial resources which would otherwise be expended in
making difficult determinations of voluntariness.” (internal
brackets omitted) (citation omitted)). The majority starts by
arguing that “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.” United States v. Mitchell, __
M.J. __ (7) (C.A.A.F. 2017). However, Appellee declined to
state or otherwise speak his passcode to the Government. He
declined. There is nothing to suppress there.

The majority goes on to conflate Appellee’s non-answer to
a question with the later request that he physically unlock
his iPhone, and (perhaps) identifies that as the Fifth
Amendment violation. But there was no testimonial
statement or testimonial act to which the Fifth Amendment
privilege or Edwards could attach. Accordingly, there was no
interrogation, no Edwards violation, and nothing to
suppress as “derived” therefrom pursuant to M.R.E.
305(c)(2). Neither the right against self-incrimination nor
Edwards is in play in the absence of testimony that is “a
witness against [oneself].”

II.

Contrary to its understanding of the law 3 the majority
does in fact need to show that the entry of the password
itself was both testimonial and incriminating to trigger the
protections of the Fifth Amendment. See United States v.
Castillo, 74 M.J. 160, 165 (C.A.A.F. 2015) (“ ‘To qualify for
the Fifth Amendment privilege, a communication must be
testimonial, incriminating, and compelled.’ ” (quoting Hiibel
v. Sixth Judicial Dist. Court, 542 U.S. 177, 189 (2004)));
Schmerber v. California, 384 U.S. 757, 761 (1966) (“[T]he
privilege protects an accused only from being compelled to
testify against himself, or otherwise provide the State with

3 Mitchell, __ M.J. at __, __ (8, 9).

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 United States v. Mitchell, No. 17-0153/AR
Judge RYAN, dissenting

evidence of a testimonial or communicative nature.”
(emphasis added)); see also Doe v. United States, 487 U.S.
201, 210–11 (1988) (concluding that “certain acts, though
incriminating, are not within the privilege,” because “the
suspect was not required to disclose any knowledge he might
have, or to speak his guilt” (emphasis added) (citations
omitted) (internal quotation marks omitted)). The Fifth
Amendment’s protections against self-incrimination, and
hence Edwards, apply only to testimonial communications
that are the result of interrogation. See Fisher v. United
States, 425 U.S. 391, 408 (1976); Everett v. Sec., Fla. Dept. of
Corrections, 779 F.3d 1212, 1244 (11th Cir. 2015)
(concluding, with respect to a DNA request in a post-
invocation custodial context, that “[t]he privilege against
self-incrimination extends only to compelled testimonial
communications” (emphasis added)); see also Roa, 24 M.J. at
301 (Everett, C.J., concurring in the result) (recognizing that
“Edwards provides protection only as to interrogation”).

Granted, “the distinction between real or physical
evidence, on the one hand, and communications or
testimony, on the other, is not readily drawn in many cases.”
South Dakota v. Neville, 459 U.S. 553, 561 (1983) (citing
Schmerber, 384 U.S. at 764). For instance, the Fifth
Amendment’s protections apply in some instances to an
accused who is compelled to produce papers and documents,
but never applies to an accused who is compelled to produce
a writing sample, undergo fingerprinting, or the withdrawal
of blood samples. See Schmerber, 384 U.S. at 763–65; see
also Fisher, 425 U.S. at 408. In this context, the question
whether the act of entering a passcode into a phone can be
testimonial is fairly novel. Some courts have concluded that
the fact that a passcode emanates from “mental processes” is
enough to deem it testimonial, at least when it is spoken, or
the passcode subpoenaed. See United States v. Kirschner,
823 F. Supp. 2d 665, 669 (E.D. Mich. 2010); see also Sec. and
Exch. Comm’n v. Huang, No. 15-269, 2015 U.S. Dist. LEXIS
127853, at *6, 2015 WL 5611644, at *2 (E.D. Pa. Sept. 23,
2015). Other courts have concluded that a telephone
passcode is “neither testimonial nor communicative in the
Fifth Amendment sense,” Venegas, 594 F. App’x at 827, or
that post-invocation password requests do not violate the

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Judge RYAN, dissenting

Fifth Amendment, United States v. Gavegnano, 305 F. App’x
954, 956 (4th Cir. 2009), or that there is no meaningful
distinction between a numeric passcode and a fingerprint
passcode in the context of mobile phones—and that neither
is testimonial in any event, see State v. Stahl, 206 So. 3d
124, 135–36 (Fl. Dist. Ct. App. 2016).

Rather than grapple with a critical point of law, the
majority chooses to baldly assert—without citation to any
authority—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.”
Mitchell, __ M.J. __ (9) (emphasis added). It is simply
bizarre to conclude that the Fifth Amendment right against
self-incrimination could possibly be implicated where no
testimony was forthcoming, i.e., produced. Equally foreign to
reason is the ipse dixit notion that Edwards, which assumes
self-incrimination was compelled—i.e., involuntary, under
certain circumstances—has some independent substantive
identity absent an incriminating testimonial statement.

The majority’s wrongheaded application of Edwards
appears to transform a prudential prophylactic into a
freestanding constitutional right untethered from “bearing
witness” against oneself at all. The majority’s view that
Edwards provides a right against “badgering,” 4 whether it
results in an incriminating statement or not, see id., is a
policy judgment divorced from the relevant clause of the
Fifth Amendment. That clause plainly states that its
purpose is to protect a suspect from being “compelled in any
criminal case to be a witness against himself.” U.S. Const.
amend. V; see also Schmerber, 384 U.S. at 765; Doe, 487 U.S.
at 210–11 (recognizing that “certain acts, though

4 The majority defends their conclusion that an Edwards vio-
lation exists in the absence of a testimonial statement by stating
that the “core [of] the Fifth Amendment” protects against “badger-
ing an unrepresented suspect into granting access to incriminat-
ing information.” __ M.J. at __ (9). The brevity of the encounter
between Appellee and Investigator Tsai, and the former’s volun-
tary act of unlocking his iPhone, cannot seriously be said to sup-
port the majority’s weighty charge of “badgering.”

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Judge RYAN, dissenting

incriminating, are not within the privilege” and noting that
an accused incriminates himself when he “speak[s] his guilt”
(emphasis added)); cf. Solem v. Stumes, 465 U.S. 638, 646
(1984) (“Edwards established a bright-line rule to safeguard
pre-existing rights . . . .” (emphasis added)).

III.

But while the majority must explain how the act of
entering an iPhone passcode is in fact testimonial, in
response to interrogation, and incriminating, it is sufficient
for my purposes to illustrate that the request that Appellee
enter his passcode was not “reasonably likely to elicit an
incriminating response,” Innis, 446 U.S. at 301 (emphasis
added), and therefore not an “interrogation” for the purposes
of Edwards and the Fifth Amendment. This is not a novel
inquiry.

A.

It is well established that an accused is subject to
interrogation when law enforcement officers ask questions
“reasonably likely to elicit an incriminating response from
the suspect.” Id. (emphasis added). An accused incriminates
himself—that is, gives an incriminating response—when he
makes statements that “support a conviction under a federal
criminal statute” or “furnish a link in the chain of evidence
needed to prosecute the claimant for a federal crime.” United
States v. Hubbell, 530 U.S. 27, 38 (2000) (quoting Hoffman v.
United States, 341 U.S. 479, 486 (1951) (quotation marks
omitted)). Not all statements are incriminating, and courts
have recognized that just as “not all statements made while
in custody are the product of interrogation,” Holman v.
Kemna, 212 F.3d 413, 418 (8th Cir. 2000), “not all
questioning of in-custody suspects constitutes interrogation.”
United States v. Ventura, 85 F.3d 708, 712 n.5 (1st Cir.
1996).

“ ‘A request for consent to search does not infringe upon
Article 31 or Fifth Amendment safeguards against self-
incrimination because such requests are not interrogations
and the consent given is ordinarily not a statement.’ ”
United States v. Hutchins, 72 M.J. 294, 297 (C.A.A.F. 2013)

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 United States v. Mitchell, No. 17-0153/AR
Judge RYAN, dissenting

(quoting United States v. Frazier, 34 M.J. 135, 137 (C.M.A.
1992)). This is true even where the person has invoked and
Edwards applies. Cf. United States v. Gonzalez, Nos. 95-
5004, 95-5026, 1995 U.S. App. LEXIS 34730, at *9–10, 1995
WL 729483, at *3 (4th Cir. 1995) (per curiam) (unpublished)
(acknowledging Edwards but noting that a post-invocation
“request to search [defendant’s] hotel room does not in and
of itself elicit testimonial evidence of guilt”). In this case, the
Government had authority to search and seize Appellee’s
iPhone pursuant to a valid search authorization. While the
request that Appellee unlock his iPhone was not a request
for consent to search, in this case it resembles “the common-
law principle of announcement,” which has been recognized
as an element of the reasonableness inquiry under the
Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 934–
36 (1995). 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.

B.

Even without this well-settled law, the request to unlock
the iPhone is also not an interrogation because the answer
one could reasonably expect—entering the passcode—was
not incriminating. It would not itself have served as a
directly inculpatory statement expressing Appellee’s guilt or
supported a conviction under a criminal statute. The
passcode would not have been admitted at trial and did not
itself “communicate any information about the investigated
crime.” Roa, 24 M.J. at 301 (Everett, C.J., concurring in the
result).

Likewise, the act of entering the code conveyed no in-
criminating facts in the way that providing documents
sometimes does. Unlike statements that “authenticat[e] or

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Judge RYAN, dissenting

identif[y] . . . documents,” see id., neither Appellee’s passcode
nor the fact that he entered it was likely to—or actually
did—reveal any incriminating information. At most, the en-
try of a passcode would reveal, (1) an undisclosed specific
number combination with no contextual meaning or weight
and (2) an implicit admission that Appellee owned the phone
and knew the passcode for it. Cf. United States v. Apple Mac
Pro Computer, 851 F.3d 238, 248 (3d Cir. 2017); Gavegnano,
305 F. App’x at 956.

Here such revelations would have been a foregone
conclusion that “add[ed] little or nothing to the sum total of
the Government’s information.” Hubbell, 530 U.S. at 44
(quoting Fisher, 425 U.S. at 411). Based on the facts of
record, it was apparent to all parties that Appellee owned
the iPhone: 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. “[I]n common
experience, the first would be a near truism, and the latter
self-evident.” Fisher, 425 U.S. at 411. The fact that Appellee
could unlock his own phone was simply neither testimonial
nor incriminating. See Brief of Notre Dame Law Students as
Amicus Curiae in Support of Appellant, at 14–15, United
States v. Mitchell, No. 17-0153 (C.A.A.F. Mar. 21, 2017);
Roa, 24 M.J. at 301 (Everett, C.J., concurring in the result)
(“A distinction must be made . . . between granting consent
to search property which has already been identified by law-
enforcement agents and identifying property for those
agents.”). 5

5 If ownership of the iPhone was in question before the agents
asked Appellee to enter his passcode, perhaps this would be a dif-
ferent case. See Orin Kerr, The Fifth Amendment and Touch ID,
Wash. Post: The Volokoh Conspiracy, Oct. 21, 2016,
https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2016/10/21/the-fifth-amendment-and-touch-
id/?utm_term=.f8926f1eb712 (last visited Aug. 25, 2017) (distin-
guishing that situation from provision of a passcode to a phone
whose ownership is known, a foregone conclusion “that should de-
feat the [Fifth Amendment] privilege”).

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Judge RYAN, dissenting

Like the Fourth and Fifth Circuits, cf. Gavegnano, 305 F.
App’x at 956; Venegas, 594 F. App’x at 827; the Air Force
Court of Criminal Appeals has similarly concluded that a
request for a passcode to a phone—whether spoken or
physically entered—does not violate the Fifth Amendment.
See, e.g., United States v. Robinson, No. ACM 38942, 2017
CCA LEXIS 378, at *17–18, 2017 WL 2417746, at *6 (A.F.
Ct. Crim. App. May 15, 2017) (holding that a post-invocation
passcode request made in conjunction with a request for
consent to search was not an interrogation because the
passcode was not itself incriminating); United States v.
Blatney, Misc. Dkt. No. 2016–16, 2017 CCA LEXIS 354, at
*10, 2017 WL 2422807, at *4 (A.F. Ct. Crim. App. May 22,
2017) (concluding that because the identity, location,
ownership, dominion, and control of a cell phone were not in
dispute, the military judge abused her discretion in holding
that the request for the phone’s passcode constituted an
interrogation); see also United States v. Fricosu, 841 F.
Supp. 2d 1232, 1237 (D. Colo. 2012) (holding the Fifth
Amendment did not prohibit a government-compelled
production of unencrypted contents of a computer when
their existence and location were known); cf. In re Grand
Jury Subpoena (Boucher), No. 2:06–mj–91, 2009 U.S. Dist.
LEXIS 13006, at *6–10, 2009 WL 424718, at *3–4 (D. Vt.
Feb. 19, 2009) (concluding that compelling the production of
an unencrypted version of a laptop’s hard drive would not
“communicate incriminating facts”). But see Kirschner, 823
F. Supp. 2d at 669 (quashing subpoena for the password to a
computer as a testimonial communication).

IV.

The majority concludes, to the contrary, that an
interrogation, and therefore an Edwards violation, occurred
because Appellee “demonstrated that entry of his passcode
was an ‘incriminating response,’ ” i.e., a response that
“furnish[ed] a link in the chain of evidence needed to
prosecute” Appellee. Mitchell, __ M.J. at __, __ (7, 9). The
majority’s conclusion rests entirely on a naïve
misunderstanding of what the phrase “link in the chain,”
Hoffman, 341 U.S. at 486, actually means. The majority
interprets the phrase to mean something that it clearly did

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Judge RYAN, dissenting

not mean in Hoffman and has never been read to mean in
any legal authority I have found. “Link in the chain” for
purposes of the Fifth Amendment simply does not mean “but
for.”

In Hoffman, the government sought a bench warrant for
William Weisberg, a witness who failed to appear before a
grand jury. Hoffman, 341 U.S. at 481, 487. The prosecutor
asked Hoffman several questions about Weisberg’s
whereabouts and Hoffman’s communications with Weisberg.
Id. at 481. For example, the prosecutor asked Hoffman,
“When did you last see [Weisberg]?” and “Have you seen
[Weisberg] this week?” Id. Hoffman invoked his Fifth
Amendment privilege and refused to answer. Id. The
Supreme Court held that Hoffman’s answers, though facially
neutral, could incriminate Hoffman because they could
“establish contacts between [Hoffman] and Weisberg during
the crucial period when the latter was eluding the grand
jury,” thereby “forg[ing] links in a chain of facts imperiling
[him] with conviction” for hiding Weisberg. Id. at 488.
Phrased differently, Hoffman’s testimony could have shown
that he helped Weisberg hide on his property or shown that
he was communicating with, and helping, Weisberg.

The majority uses this language to conclude that
Appellee’s act of entering his iPhone passcode is a “link in a
chain” because it allowed entry to the iPhone, which in turn
contained evidence. But Hoffman 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.
As the Court in Hoffman explained:
The privilege afforded not only extends to answers
that would in themselves support a convic-
tion . . . but likewise embraces those which would
furnish a link in the chain of evidence needed to
prosecute the claimant for a federal crime . . . . [I]f
the witness, upon interposing his claim, were re-
quired to prove the hazard in the sense in which a
claim is usually required to be established in court,

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Judge RYAN, dissenting

he would be compelled to surrender the very pro-
tection which the privilege is designed to guaran-
tee. To sustain the privilege, it need only be evident
from the implications of the question, in the setting
in which it is asked, that a responsive answer to
the question or an explanation of why it cannot be
answered might be dangerous because injurious
disclosure could result.
Id. at 486–87 (emphasis added). Hoffman merely
extended the protections of the Fifth Amendment to those
statements that were not facially inculpatory, but could be
read, in context, to incriminate the accused. Likewise, in the
case that Hoffman cited for the “link in the chain” language,
Blau v. United States, the Court observed:
[Petitioner] was asked several questions concerning
the Communist Party of Colorado and her employ-
ment by it. . . .
[S]he reasonably could fear that criminal charges
might be brought against her if she admitted em-
ployment by the Communist Party or intimate
knowledge of its workings. Whether such admis-
sions by themselves would support a conviction un-
der a criminal statute is immaterial. Answers to the
questions asked by the grand jury would have fur-
nished a link in the chain of evidence needed in a
prosecution of petitioner for violation of (or conspir-
acy to violate) the Smith Act.
340 U.S. 159–61 (1950) (emphasis added) (footnote
omitted). In both Blau and Hoffman, the Court contrasted
facially incriminating answers with answers that were not
facially inculpatory, but could have been used as “evidence .
. . to prosecute.” Hoffman, 341 U.S. at 486. As noted
previously, the passcode itself is clearly not “evidence” in
this case, and neither is Appellee’s act of unlocking his
iPhone. Rather, it is the contents stored on the iPhone itself
that revealed facts related to the criminal investigation and
the Government had a lawful authorization to search and
seize those contents. 6

6 In executing the search authorization, law enforcement did
not ask Appellee anything about the contents of his iPhone, let

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Judge RYAN, dissenting

Appellee’s act of entering his password into his iPhone
gave law enforcement immediate access to its contents; but
the Supreme Court has clearly held that provision of access
to evidence is not necessarily “incriminating” under the
Fifth Amendment. In Doe, for example, the accused invoked
his Fifth Amendment privilege “[w]hen questioned about the
existence or location of additional records” of his overseas
bank records. 487 U.S. at 202–03. The government sought a
court order requiring the accused to sign twelve forms
consenting to the disclosure of records relating to overseas
bank accounts that the government “knew or suspected that
Doe had control” over. Id. at 203. The Doe Court concluded
that these forms did not implicate the Fifth Amendment
privilege, because, although the answers gave the
government “access to a potential source of evidence,” they
did not themselves “point the Government toward hidden
accounts” or “provide information that w[ould] assist the
prosecution in uncovering evidence.” Id. at 215 (emphasis
added). Similarly here, Appellee’s entry of his passcode
merely provided access to a device already known to—indeed
in the possession of—law enforcement.

V.

In this case the majority has inexplicably, and without a
textually principled explanation, wandered far from the core
principles the Fifth Amendment and Edwards were
intended to protect. This gratuitous expansion of the scope of
the Fifth Amendment privilege will necessarily tear at the
logical contours of the Fourth Amendment. 7 How can we

alone the files, photos, or applications he stored on his iPhone. Nor
did they ask Appellee to pinpoint where particular files or photos
were located. See United States v. Green, 272 F.3d 748, 752 (5th
Cir. 2001) (law enforcement violated suspect’s rights under Ed-
ward and Miranda when they asked suspect to disclose the loca-
tion of his firearms and open cases that he had identified as con-
taining firearms because this amounted to custodial
interrogation).
7 The majority’s purported discovery of an Edwards violation
absent either a “statement” or an “interrogation” undeniably leads
us down a lawless and reckless path, the effects of which will be
felt immediately in this Court’s review of United States v. Blatney,

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Judge RYAN, dissenting

reasonably explain that the government may lawfully obtain
authorization to seize and search a phone, lawfully “break
into” that phone independent of Appellee’s cooperation after
it is seized, but cannot first request that Appellee furnish
access?

It is difficult to say how the majority’s expansive ruling
will work in practice. If we were dealing with a house rather
than an iPhone, and had Appellee unlocked the door to his
home following a request from law enforcement executing a
warrant, would the majority similarly conclude that the
request to open the door was an interrogation and the
affirmative action an incriminating statement because it
provided the government with quicker access to that home
than if they had attempted to break down the door?

At bottom, this was a reasonable search and seizure
conducted pursuant to a valid search authorization. The
Government did not violate Appellee’s legal rights either
when it asked Appellee for his iPhone passcode (which he
declined to provide) or when it asked him to enter his iPhone
passcode. Even assuming the majority can explain how this
latter act of inputting a passcode was itself testimonial, the
request was not “reasonably likely to elicit an incriminating
response from the suspect,” Innis, 446 U.S. at 301, nor did it
in fact do so. Therefore, Appellee was not subjected to
interrogation in violation of Edwards or M.R.E. 305(c)(2). 8 I
respectfully dissent.

No. 17-0485 (C.A.A.F. Aug. 10, 2017) (order granting review), and
United States v. Robinson, No. 17-0504 (C.A.A.F. Aug. 18, 2017)
(order granting review).
8 I also note that the majority oddly suggests that the facts of
this case somehow “extend[] beyond a mere consent to search” and
that therefore our decision in United States v. Hutchins is inappli-
cable. Mitchell, __ M.J. at __ (8). On the contrary, the facts of
Hutchins are instructive. There, the accused was kept in solitary
confinement for a week, deprived of a lawyer despite a request for
one, and the investigator admitted that he reinitiated contact to
further the investigation. See Hutchins, 72 M.J. at 296–98. This
contact, unlike the instant case, resulted in an incriminating
statement. Clearly, under some circumstances, a request for con-

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Judge RYAN, dissenting

sent to search may conceal an unlawful attempt to coax incrimi-
nating information out of an accused, as in Hutchins. Those cir-
cumstances are not present here.

14