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Court of Appeals for the Armed Forces upholds judge’s suppression of cell phone evidence due to Fifth Amendment violation.

Army Sergeant (SGT) Mitchell was accused of using his cell phone to harass his wife. After SGT Mitchell was escorted to the military police station, he was read his rights. SGT Mitchell invoked his 5th Amendment right to an attorney. However, two hours after invoking his right to counsel, the police asked SGT Mitchell to give them the password to enter his cell phone. SGT Mitchell had not been provided counsel prior to them asking him to provide the password. SGT Mitchell refused to provide the password. Then, an investigator handed the phone to SGT Mitchell and said, “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.” SGT Mitchell then unlocked his phone and was told to permanently disable the password feature. He did so. The government then tried to introduce evidence found on the cell phone during SGT Mitchell’s court-martial. The defense objected based on the 5th Amendment violation. The military judge agreed with defense and suppressed the phone and its contents stating that the government violated SGT Mitchell’s 5th Amendment rights during this interaction. He was not provided an attorney after asking for one and prior to seeing an attorney was asked to unlock his phone. The government appealed the military judge’s decision, however the Army Court of Criminal Appeals upheld the suppression of evidence. The Court of Appeals for the Armed Forces then reviewed United States v. Mitchell at the end of August 2017 and once again upheld the military judge’s decision. Sergeant Mitchell did the right thing in this case by invoking his rights. For him, the government’s violation of his rights worked in his favor at the appellate level. If he had not invoked his rights, this case would have turned out differently for him. If you are alleged to have committed a crime and are being read your rights, I urge you to remain silent and ask to speak with an attorney. I have and always will recommend that course of action. The reason that servicemembers fight the urge to ask for an attorney is because they do not want to appear guilty. I completely understand this; refusing to answer questions from a supervisor or higher ranking investigator goes against everything you have been trained to do in the military. However, I truly recommend that you ask to speak with an attorney before speaking to anyone who has read you your rights. Your rights are there for a reason. If you or your loved one is facing a court-martial or an appeal, you need an advocate by your side that is fully apprised of all the latest military court decisions. I am constantly reviewing the most recent decisions so that I know exactly how to be successful for my clients. If you want experience and current knowledge by your side then call me. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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