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Privacy and Your Cell Phone - Keep Your Cards Close to Your Chest
United States v. Secord - Court of Appeals for the Armed Forces
Trying a Case for the Appellate Record - a lesson in the Value of a Defense Proffer
Search and Seizure Authorizations - Military Investigators and Evidence
I have written about this before, and in all likelihood, there will continue to be good material to write about as long as human beings keep trying to invent newer and more advanced technology.
It is not often that the Courts take a firm and proper limiting stand on the power of police investigators (including UCMJ military investigators like CID, NCIS, OSI) but one very recent case from the State of Oregon has floated to the surface and, as I read it, is a firm stand against sloppy cut and paste investigator work on search warrants.
The specifics of the case are not important, other than it was an allegation of assault involving two specific named victims, and it suffices to say that police were able to get a search warrant signed for a defendant's "mobile device, computer, laptop and accessories" to see if they contained evidence of a crimes against children, as in all children, everywhere.
As someone who has seen a lot of search authorizations, I know that military investigators and other drafters suffer from 1) a lack of original thought 2) a propensity to cut and paste.
It was the propensity to cut and paste that got investigators in trouble in Oregon. Instead of tailoring the search authorization to seize items that the investigator actually had probable cause to seize regarding two specific victims, investigators cut and pasted in language from other search warrants resulting in an overly broad document. They then seized all his electronic and started looking through them for evidence of crimes that there was no suspicion (aka no probable cause) that he had committed. Most troubling, investigators seized a paper sketchbook containing notes and journal like entries from the defendant. As an attorney, I may lack computer saavy, but I know the difference between a paper sketchbook and a MacBook, and the search warrant did not authorize the seizure of the sketchbook, yet into the evidence bag it went.
As an aside, since this was state court, the search warrant was signed by a Magistrate. A Magistrate is a county official, similar to a Judge, but with a more limited scope of duties, including probable cause reviews for arrests, search authorizations and bond determinations. They see hundreds of search authorizations, unlike military magistrates, who may sign two to three search and seizure authorizations over the course of a two year assignment. The Magistrate should have known better and pushed back on law enforcement to narrow the scope.
You do not have to consent to a search, and your refusal to consent cannot be held against you. If you are handed a search warrant by law enforcement, be sure to take the copy, take a picture of it, or at the very least, remember what law enforcement agency is executing the search and tell your attorney. Searches are always ripe for challenge by defense counsel. This is your military lawyer and defense counsel's job, but you need to be engaged in your defense as well.
On the small chance that a Military Justice nerd like me stumbles onto our humble blog, enjoy this Defense critique of the July 2025 CAAF opinion in United States v. Secord.
Rule for Court Martial 701(e)
(e) Access to witnesses and evidence. Each party shall have an adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence, subject to the limitations in paragraph (e)(1) of this rule. No party may unreasonably impede the access of another party to a witness or evidence.
Facts
Army Staff Sergeant Alex Secord was convicted at court-martial for various offenses related to cocaine use involving junior enlisted soldiers. As part of the investigation, as is common in drug cases, the Central Investigation Command (CIC) seized SSG Secord’s cell phone pursuant to a search authorization from a Military Magistrate.
I must note that CIC is not a Division (nor even a television show), and that referring to themselves as CID is misleading.
Regardless, for unknown reasons (the best guess is that CIC—no, I will not call them CID—sorry) lacked the technology to unlock this latest iPhone. CIC was unable to access the phone at all to conduct any forensic analysis.
The Government then refused to grant the Defense team access to SSG Secord’s cell phone in a confidential setting. In response, Defense counsel filed a motion to allow the Defense team and a digital forensic expert to examine the phone while it was in CIC custody. The motion was grounded in equal access to evidence: because the Government had seized the phone as evidence, it could not prevent the Defense from inspecting it. The motion argued that exculpatory evidence might be on the phone, although did not specify or profer specifics of what that evidence could be. It also implied that the client would provide his passcode to his attorney, allowing the Defense expert to unlock the device and conduct a thorough examination or data extraction if needed. The Defense, rightly, never agreed to provide the Government with the passcode.
Trial Court Ruling
The Military Judge ruled that under Rule for Courts Martial 701(e), both parties should have equal access to evidence and ordered joint, simultaneous access to the cell phone, with both experts present. To access the phone, the Defense would be required to provide the Government with the passcode, and both parties would have to conduct their review of the phone in each other's presence. Failure to provide the passcode would result in the Defense being denied access. The Court of Appeals for the Armed Forces (CAAF) noted in the opinion:
However, the military judge also held that if Appellant declined to provide his PIN to permit mutual collection of his cell phone data by both the Government and the Defense, Appellant’s motion would be denied in its entirety. Appellant was given one week to make a decision, and ultimately decided not to provide his PIN.
Under the Military Judge’s plan, the Government might observe Defense counsel as they carry out their duties, and vice versa. (By the way, I have never seen lawyers openly perform attorney work-product privileged tasks in front of opposing counsel as it negates privilege.) The Military Judge’s plan would clearly require violation of the work-product privilege.
Court of Appeals for the Armed Forces
CAAF sided with the Government (though not the Military Judge). It held that it did not have to provide access to the Defense because, in a technical sense, the Government did not have “control” of the data, as it did not have access to it. Harkening back to the 90s Clinton-esque discussion of “it depends on what the definition of ‘is’” is, CAAF parsed RCM 701 with fine precision, finding that physical possession of the cell phone, without more (i.e., access to its contents), meant the Government did not have “possession, custody, or control” of the cell data.
Why this doesn’t work in Defense land under the Constitution
As a would-be grammarian, I fully understand the analysis of the disjunctive and the word “or.” RCM 701(e) is Defense-friendly in that if the Government has any one of the three attachments “possession, custody, or control” of a piece of evidence, it must allow the Defense access to that evidence. The Government does not need all three attachments for the discovery and disclosure requirements to be triggered.
However, nowhere in RCM 701(e) is there a knowledge-sharing requirement, nor is there any reference to joint or “in the presence of” equating to equal access to evidence. In supporting the lower court’s holding that the Government did not owe the Defense any disclosure or access to the Defendant’s phone, CAAF blows right past the last sentence of RCM 701(e), “No party may unreasonably impede the access of another party to a witness or evidence,” and straight past the Defendant’s 5th Amendment right to silence when it conditioned access to the Defendant’s own phone on the Defendant providing the Government the passcode.
The Government physically possessed the phone, which, in legal, philosophical, moral, and physical terms, is equivalent to having custody of the data. Since the Government’s physical control of the phone inherently prevented the Defense from accessing the data—which is problematic if the Defense needs it to find exculpatory evidence—there is an issue. CIC has a legal duty to keep its evidence room open to Defense counsel, and when it does, both sides have had equal access to the data.
It is important to distinguish access from intelligence. Having more knowledge or being more skilled—such as the Defense possessing the knowledge of how to access the phone data—does not mean the Government lacked legal access. The Government lacked the smarts to extract the data in its current form, and this is neither the Defense’s fault nor its concern.
More importantly, CAAF’s majority refused to address the real error, considering the case only under discovery rules. CAAF failed to address the trial court’s error in ordering SSG Secord to provide access to his phone so the Defense could obtain what it believed to be exculpatory evidence.
In doing so, CAAF buries its head and fails to address the issue that would expose the true inequities in what CIC does every day. In a case I tried several years ago, a military unit kept a client’s phone locked in the supply cage for months while he was in pre-trial confinement. He was allowed unfettered access to his own phone when he was brought back to the unit during his Article 32 hearing. Several weeks later, we asked the unit to ship the phone to counsel (with the client’s permission) to retrieve exculpatory text messages. Instead, trial counsel sent CIC in to seize the phone, specifically to prevent the Defense from accessing it - they even stated that was there intended purpose. Eventually, the charges were disposed of administratively, in part because of CIC’s blatantly unconstitutional seizure and motions that followed.
In Secord, by seizing the phone and preventing the Defense from accessing it, the Government is excluding the Defense from the evidence. The one criticism of the Defense in this case is that it should have placed a proffer on the record of the exculpatory evidence it believed it would find on the phone. The proffer could have been sealed and reviewed in camera - they did not even have to share it with the Government. I understand the rush of trial prevents even the best advocates from seeing 10 steps down the road into the appellate process, especially given that the motion was a discovery motion. Still, a rule of thumb is to make a proffer if you can and to litigate in trial with an eye for the appellate record. A proffer is not evidence, and the Government may not use it as such.
The Government does not have the right to demand and compel a Defendant to incriminate himself. Period. It is well-settled law that asking a Defendant to provide the passcode to a cell phone is covered by the 5th Amendment (United States v. Painter, 2020 CCA LEXIS 474 at 35). Likewise, ordering counsel to conduct trial preparation in full view of opposing counsel is unconstitutional.
Cell phones are unique, and the law needs to evolve with them. The Supreme Court recognized this in Carpenter v. United States, 585 U.S. 296 (2018), when it protected individuals’ privacy in their cell phone location data. If the Government cannot compel a passcode from a service member, it should not be allowed to block access to the cell phone when the Defendant rightly declines to provide it.
Conclusion
CAAFs’ holding puts the Government and Defense in a game of Russian roulette: turn over the passcode without knowing whether equal access will give the client the exculpatory evidence they need or strengthen the Government’s case by providing access to inculpatory data. Once the phone is unlocked, Pandora’s Box is opened, and everything comes out. This gamble is both unfair and unconstitutional. I hope that Secord pushes the case forward for review by the Supremes, who, ironically, appear to be more tech-savvy than the CAAF.