Protecting Your Phone from Searches by Military Law Enforcement: What You Need to Know

By Stephanie Kral | September 12, 2024

In the digital age, our phones hold a treasure trove of personal information—photos, messages, emails, location history, and even financial data. If you’re under investigation by military law enforcement, such as the Naval Criminal Investigative Service (NCIS) or the Army Criminal Investigation Division (CID), it’s crucial to understand your rights and how to protect your phone from searches.

Methods of Unlocking Your Phone

Most smartphones today offer several methods of unlocking:

Passcodes (PIN, Alphanumeric Password): This is the traditional and still one of the most secure methods. It requires you to input a specific set of numbers, letters, or a combination to unlock your phone.
Biometrics (Fingerprint, Face Recognition, Iris Scanning): These methods use your unique biological traits to unlock your phone. While convenient, they have specific legal implications.
Pattern Locks: This method involves drawing a specific pattern on the screen to unlock the device. While less common, it’s another option available on many Android devices.
Smart Lock Features: Some phones allow you to keep your phone unlocked in certain conditions, such as when connected to a trusted device or location. This can be convenient but also risky if your phone falls into the wrong hands.

What is the difference between a Command Authorized Search (CASS) vs. Permissive Search (PASS)

When it comes to phone searches in the military, it’s essential to understand the different types of searches that can be conducted under military law:

Command Authorized Search: This type of search is initiated by a commanding officer who has determined there is probable cause to believe that evidence of a crime, contraband, or other unlawful items are present on your person or property, including your phone. The commanding officer issues a written authorization, which serves as the military equivalent of a search warrant in civilian law. A CASS is a thorough and legally robust process that does not require your consent.

– Navy/Marine Corps: CASS is a standard procedure, where the commanding officer provides written authorization for the search.

– Army: The equivalent is known as a Command Search Authorization, also initiated by a commanding officer.

– Air Force: Referred to as a Search Authorization, following similar procedures.

– Coast Guard: Also follows the Command Authorized Search procedures, adhering to its own specific regulations.

Permissive Search: A permissive search, on the other hand, occurs when you voluntarily consent to the search of your person or property. Military law enforcement or a commanding officer may request your permission to search your phone. It’s important to know that granting consent eliminates the need for probable cause or a search authorization. If you are asked for consent to search, decline consent and seek out an experienced attorney to assist you.

– Navy/Marine Corps: PASS is used to describe a search conducted with the servicemember’s consent.

– Army: Known as a Consent Search, where the servicemember agrees to the search without coercion.

– Air Force: Similarly referred to as a Consent Search, with a focus on voluntary cooperation.

– Coast Guard: Conducts permissive searches under similar guidelines, emphasizing the voluntary nature of the search.

What Can Military Law Enforcement Force You to Do With Your Cell Phone?

Under military law, the rules regarding what law enforcement can and cannot compel you to do are nuanced, especially when it comes to unlocking your phone.

Passcodes and Passwords: Generally, you cannot be forced to divulge your passcode or password under the Fifth Amendment, which protects against self-incrimination. This applies in military contexts as well, meaning NCIS or CID cannot force you to provide your passcode, though they may try to tell you they are ordering you to provide the passcode.
Biometrics: The legal landscape is murkier here. Courts have increasingly ruled that law enforcement can compel you to unlock your phone using biometrics (fingerprint, facial recognition, etc.) because it’s considered a physical act rather than testimonial, and therefore not protected by the Fifth Amendment. This means that, in some cases, NCIS or CID might be able to force you to unlock your phone using your fingerprint or face.
Pattern Locks: Similar to passcodes, you cannot be forced to reveal your pattern lock as it falls under the same Fifth Amendment protections.

Best Practices to Protect Your Phone

To safeguard your phone against searches by military law enforcement, consider the following steps:

Use a Strong Alphanumeric Password: This is your best bet for keeping your phone secure. Since you cannot be legally compelled to reveal it, a strong, unique password is the most reliable defense.
Disable Biometrics: Given the legal ambiguity surrounding biometrics, disabling fingerprint or facial recognition in favor of a passcode can provide an extra layer of protection.
Keep Your Phone Software Updated: Regularly updating your phone’s software ensures you have the latest security features and patches, making it harder for anyone to bypass your phone’s security.
Understand Your Rights: Knowledge is power. Familiarize yourself with your rights under military law, including when and how NCIS or CID can legally search your phone. If in doubt, consult with a military legal advisor before consenting to any search.
Be Wary of Smart Lock Features: While convenient, smart lock features can make it easier for someone else to unlock your phone without your knowledge. It’s best to disable these features if you’re concerned about unauthorized access.

How Hiring a Lawyer Can Help: Kral Military Defense

When facing the prospect of a phone search by military law enforcement, having the right legal representation can make all the difference. Hiring a military defense lawyer, such as those at Kral Military Defense, can provide you with the expertise needed to navigate the complexities of military law.

Expert Legal Advice: Military defense attorneys, particularly those familiar with NCIS, CID, and military court procedures, can offer crucial advice on how to protect your rights during an investigation. They can guide you on when to refuse a search, when to comply, and how to handle law enforcement interactions.
Challenging Unlawful Searches: If NCIS or CID conducts a search without proper authorization or violates your rights, a skilled military defense lawyer can challenge the legality of the search. This can potentially result in the exclusion of any evidence obtained unlawfully, which can be critical to your defense.
Representation in Military Courts: If your case escalates to a court-martial, having a lawyer from Kral Military Defense ensures that you have experienced representation. They can advocate on your behalf, ensuring that all aspects of your case, including any evidence obtained from your phone, are handled with the utmost legal scrutiny.
Peace of Mind: Knowing that you have a knowledgeable lawyer on your side can provide peace of mind during a stressful time. They can handle the legal complexities, allowing you to focus on your duties and personal well-being.

Conclusion

In a world where our phones are extensions of ourselves, it’s essential to be proactive in protecting them, especially if you’re in the military and under investigation by NCIS, CID, or AFOSI. By understanding the methods of unlocking your phone, the legal boundaries of what military law enforcement can compel you to do, the difference between Command Authorized Searches (CASS) and Permissive Searches (PASS), and the importance of hiring a knowledgeable lawyer like those at Kral Military Defense, you can take steps to ensure your personal information remains secure.

If you’re serving in the Navy, Marine Corps, Army, Air Force, or Coast Guard and are facing an investigation, don’t hesitate to contact Kral Military Defense to protect your rights and your future.