Court of Appeals for the Armed Forces

United States v. Nelson. The introduction.

We granted review to determine whether the military judge erred when he concluded that Appellant voluntarily provided his cell phone’s passcode to law enforcement. We hold that under the totality of the circumstances, Appellant did voluntarily provide his passcode and thus the military judge did not abuse his discretion in denying a defense motion to suppress incriminating evidence derived from Appellant’s cell phone. We therefore affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals (CCA).

The issue.

​We granted review on the following issue: Did the military judge and the court below err in finding that Appellant voluntarily provided his smart phone passcode to law enforcement when the law enforcement official conducting the interrogation asserted that he possessed a search authorization for the phone and Appellant only provided his passcode because Appellant believed he had “no choice?”

In denying relief, the court addressed a number of factors in a de novo review of the totality of the circumstances and the military judge's findings. See Slip op. at 4; and

• "Appellant was not somehow peculiarly susceptible to coercion."
• "during the initial interview, not only did Appellant “technically” waive his Miranda/Article 31, UCMJ, rights, he did so forthrightly and unambiguously and demonstrated his willingness to answer questions. Moreover, he repeatedly demonstrated his recognition that he could decline to provide the passcode to his phone."
• "Appellant does not provide any basis for this Court to conclude that this initial interview was coercive. We specifically note that Appellant did not invoke his right to counsel and did not seek to depart from the interview."
• The investigator's "tone and demeanor remained professional at all times and the encounter “last[ed] only minutes.”
• "when Appellant stated that he had “no choice” but to enter the passcode, he did not wait for a response by Investigator Hotel before unlocking his phone."
• "Moreover, the investigator in this case was under no obligation to correct Appellant’s misimpression." (As opposed to, say, an affirmative lie?)

Appellant makes two main arguments. First, Appellant avers that his entry of the passcode was involuntary because he merely acquiesced to a claim of authority. However, we note that the Fourth Amendment consent cases that Appellant cites in support of his claim are not on point.  . . . Appellant next argues that his refusal to consent to a search of his phone five times “is direct evidence that he did not voluntarily provide his phone’s passcode.” However, we are not persuaded that, standing alone, five refusals to consent to a search make a subsequent entry and provision of a passcode involuntary. Key to our analysis here is the military judge’s factual findings that the investigator used a professional tone at all times and did not engage in threats, abuse, or coercion.