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Giving Police a Duress Code Instead of a Passcode to a Phoneby Jeff
Welty Jeff Welty

Last week, several people sent me news articles about the prosecution of
Samuel Tunick, who was detained by federal agents while re-entering the
United States after a trip abroad. During the encounter, officers asked
him for the passcode to his phone, but he reportedly gave them a duress
code that wiped the device. Tunick was charged with a federal felony destruction of evidence offense. This post lays out what we know about
the case, speculates about why it has captured the publicrCOs attention,
and offers a few thoughts about how similar facts might be treated under
North Carolina law.

The facts. Based on public reporting and an examination of the docket

Tunick is an activist who lives in Atlanta. He is or was associated with
a group called Defend the Atlanta Forest, which opposed the construction
of a large public safety training facility in the Atlanta area,
sometimes called rCLCop CityrCY by opponents of the project.

Dozens of people were arrested during protests against the training
facility. Tunick does not seem to have been among them.

On January 24, 2025, Tunick was returning to the United States from a
vacation in the Dominican Republic.

When he arrived at the Atlanta airport, Customs and Border Protection
officers directed him to secondary inspection, searched him, searched
his possessions, and demanded the passcode to his phone. They claimed to
be looking for evidence of child pornography offenses. See TunickrCOs
Motion to Suppress. However, Tunick believes that he was actually being investigated for potential terrorism charges based on his involvement
with Defend the Atlanta Forest.

Tunick provided the officers with a code and they entered it into the
phone. The code was not a passcode, but rather a duress code, a feature
of an operating system called GrapheneOS that Tunick was running on his
Google Pixel phone.

The entry of the duress code wiped the device of all data.

Tunick was allowed to leave the airport.

On November 13, 2025, he was indicted on a single felony count of the
federal law discussed in detail below. HererCOs the indictment.

On December 3, 2025, Tunick was arrested. He was released from custody
subject to certain conditions.

Tunick has filed a motion to suppress, contending that rCLevidence
obtained from [his] phonerCoor lack thereofrCoshould be suppressed as fruits ofrCY what he contends was an unlawful detention and interrogation.

A hearing on the motion took place on July 20 before a federal
magistrate judge. There is a schedule in place for post-hearing briefs.
No ruling has been issued.

The law. Tunick has been charged under 18 U.S.C. -o 2232, which provides:

Whoever, before, during, or after any search for or seizure of property
by any person authorized to make such search or seizure, knowingly
destroys, damages, wastes, disposes of, transfers, or otherwise takes
any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government's lawful authority to take such property into
its custody or control or to continue holding such property under its
lawful custody and control, shall be fined under this title or
imprisoned not more than 5 years, or both.

The GovernmentrCOs apparent theory is straightforward. Tunick arrived from overseas at an international airport so he was at the border. The
Government has broad authority to search people and items coming into
the country, including travelersrCO electronic devices, as I explained in
this prior post.

Based on the relatively small number of annotations under section 2232,
it appears to be infrequently used. One example of a prosecution is
United States v. Lessner, 498 F.3d 185 (3rd Cir. 2007). The defendant in
that case was a government employee who was suspected of misconduct in
her work as a purchasing and contracting officer. When she learned that
she was under investigation, she asked a friend to remove a pertinent
file from her desk, and the friend did so. The defendant was charged
with violating section 2232. She pled guilty and the Third Circuit
deemed the evidence sufficient to support her plea.

Notably, Tunick was not charged under 18 U.S.C. -o 1519, which provides
for up to 20 years of imprisonment for destruction of evidence rCLwith the intent to impede, obstruct, or influence the investigation . . . of any
matter within the jurisdiction of any department or agency of the United States.rCY Some have suggested that the section 2232 offense may be
simpler to prove because the Government would only need to show that it
had a lawful right to seize the data on the phone. It would not need to
show that there was an ongoing investigation, and could not be required
to defend or to justify the investigation.

The controversy. Viewed one way, this is an ordinary destruction of
evidence case. Imagine that a suspected drug trafficker arrives at the
Atlanta airport on a flight from Colombia. He is directed to secondary inspection and asked to produce his phone, but he throws the phone on
the ground and stomps on it. He is charged under section 2232. I doubt
that there would be much media coverage or public consternation about
such a case. So why has TunickrCOs case attracted so much attention? There
are at least two reasons.

First, TunickrCOs background in activism. Tunick does not believe the
agentsrCO statements that they were looking for child pornography. He
believes that he was targeted because of his opposition to the
construction of the Atlanta training center. If true, such a claim could
raise First Amendment concerns and might support a selective- or vindictive-prosecution claim. It is interesting that Tunick has not
filed a pretrial motion seeking dismissal on those grounds.

Second, rather than stomping on his phone, Tunick used a duress code.
Duress codes may be novel to many readers. Some online commenters seem
to think that because the officer entered the code, Tunick is off the
hook. I doubt that. The statute applies to a person who rCLtakes any
action . . . for the purpose of preventing or impairingrCY the
GovernmentrCOs access to property it is trying to seize. Giving the
officer the duress code when asked for the passcode seems to qualify.

One other factor that might explain why this case has attracted so much attention is public discomfort over border searches of electronic
devices. I havenrCOt conducted a scientific survey, but in casual
conversation, most people are dismayed to learn that the Government can
examine a travelerrCOs phone whenever a traveler enters the country.

What if something like this happened in North Carolina? LetrCOs get out of
the context of international airports and border searches. Suppose that
a North Carolina officer conducts a traffic stop, encounters
circumstances giving rise to reasonable suspicion that the driver is transporting drugs, and extends the stop to investigate the possible
drug activity. The officer asks to see the suspectrCOs phone, the suspect
hands it over, and the officer asks for the passcode. The suspect
provides a code, the officer enters it, and it wipes the phone. Did the
suspect commit a crime?

Probably. First, consider G.S. 14-222.1, which is captioned rCL[a]ltering, destroying, or stealing evidence of criminal conduct.rCY That statute
makes it a felony for a person to rCLalter[], destroy[], or steal[] any evidence relevant to any criminal offense or court proceeding.rCY It also defines rCLevidencerCY as rCLany article or document in the possession of a law-enforcement officer . . . for the purpose of being introduced in evidence.rCY The suspect could argue (1) that the contents of the
suspectrCOs phone are unknown, so there is no way to prove that they were rCLevidence,rCY and/or (2) that although the suspect had permitted the
officer to hold the phone temporarily, the device and its contents were
not in the officerrCOs possession. Those arguments are plausible at first
but would be hard to sustain in the face of State v. Ellerbee, 229 N.C.
App. 197 (2013), where the Court of Appeals found sufficient evidence to support a conviction after the defendant, during a traffic stop,
swallowed what officers suspected were controlled substances. The
defendant contended that whatever he swallowed was never tested so there
was no way to prove that it was rCLevidencerCY of anything, but the court determined that whatever it was, it was relevant in some way to the investigation.

Another possible charge is common law obstruction of justice. The
suspect might point out that the officer only had reasonable suspicion
to detain the suspect and did not yet have a legal right to search the
phone. The officerrCOs request to examine the phone was predicated on
consent, which the suspect wasnrCOt required to provide. The suspect might argue that until the officer has a legal right to access the phone, the
suspect is free to delete the data.

However, existing case law suggests that obstruction of justice becomes possible as soon as an investigation has begun. In State v. Eastman, 113
N.C. App. 347 (1994), the court wrote that rCLit is an obstruction of
justice to suppress, fabricate, or destroy physical evidence . . .
believing that an official proceeding is pending or about to be
instituted.rCY (Emphasis supplied.) In State v. Ford, 388 N.C. 713 (2025),
the court stated that rCLobstruction of justice merely requires a showing
that a defendant acts to stymie law enforcementrCOs progress or otherwise
stall an investigation of a matter.rCY (Emphasis supplied.) These cases
seem to indicate that the key moment is the beginning of an
investigation, not subsequent steps such as the issuance of a search
warrant or the filing of charges.

Finally, there is at least an argument that the suspect committed
resisting, delaying, or obstructing an officer under G.S. 14-223.
Although IrCOm not aware of a case discussing the applicability of that
offense to facts like these, the analysis under the obstructing prong of
the statute seems to be similar to the analysis for obstructing justice,
above.

https://nccriminallaw.sog.unc.edu/2026/08/03/giving-police-a-duress-code- instead-of-a-passcode-to-a-phone/

Hillary Clinton email controversy

https://en.wikipedia.org/wiki/Hillary_Clinton_email_controversy
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