Search of Cell Phones and Electronics in the Military

Cell phones and electronic devices (“electronic media”) are possible evidence of criminal activity. Thus, they are generally subject to the same rules pertaining to probable cause and search warrants (authorizations) as any other evidence.

Electronic Media is Unique

However, electronic media is unique in a couple of aspects. First, the vastness of electronic media makes it unique. Electronic media is essentially a portal into a person’s life. Gaining access to a person’s cell phone does not just result in access to call logs, but oftentimes messages, emails, banking information, photos, social media, etc. Second, electronic media is often protected by some type of security measure such as a passcode or biometric recognition. These security measures are enabled by the user, but created and updated by the manufacturer. Needless to say, modern day electronic media manufacturers are pretty tech-savvy. Some of the security measures can be difficult to bypass, even for law enforcement.

Sample Scenario

Military law enforcement, much like civilian law enforcement, oftentimes is interested in searching the electronic media of someone they suspect of a crime. A common example of this is the following: (1) based on a witness interview, law enforcement suspects a particular military member of distributing drugs; (2) law enforcement thinks the military member discussed the drug deals through text messages, which are presumably on the military member’s phone; (3) law enforcement goes to the military member and asks them to unlock their phone so law enforcement can search it.

This seemingly simple scenario can have a lot of variables that impact how things play out.

Some questions that may dictate the outcome include:

• Does law enforcement have a search authorization?

• Was the military member interrogated and read their rights?

• Has the military member consented to a search of the phone previously?

• Is law enforcement asking for the passcode (which necessitates a statement) or just for the military member to unlock the phone (which can be done through silence)?

• Will law enforcement be taking the phone itself or just be making a digital copy?

• Does law enforcement plan to copy the entire contents of the phone or just take screenshots of messages?

While every case is different and this article is by no means legal advice, suffice it to say that a military member in the scenario described above needs to think very seriously before making their decision. 

As a former active duty JAG officer and two-time defense counsel in the Air Force, Ross Brennan at Cronauer Law is a seasoned advocate in defending military members in cases involving illegal searches and seizures. Contact Cronauer Law today for a free consultation with an experienced military criminal defense attorney.

To learn more, see these related links:

• Court-Martial Overview
• Steps in a Court-Martial 
• Types of Offenses at a Court-Martial
• Sexual Assault and Related Offenses in the Military
• Constitutional Rights at a Court-Martial
• The Right to Remain Silent: Article 31
• Military Investigations
• Military Searches