Giving Police a Duress Code Instead of a Passcode to a Phone – North Carolina Criminal Law Blog
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 public’s 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 sheet and filings in Tunick’s case, the facts are as follows:
- 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 “Cop City” 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 Tunick’s 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. Here’s 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 “evidence obtained from [his] phone—or lack thereof—should be suppressed as fruits of” 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. § 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 Government’s 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 travelers’ 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. § 1519, which provides for up to 20 years of imprisonment for destruction of evidence “with the intent to impede, obstruct, or influence the investigation . . . of any matter within the jurisdiction of any department or agency of the United States.” 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 Tunick’s case attracted so much attention? There are at least two reasons.
First, Tunick’s background in activism. Tunick does not believe the agents’ 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 “takes any action . . . for the purpose of preventing or impairing” the Government’s 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 haven’t conducted a scientific survey, but in casual conversation, most people are dismayed to learn that the Government can examine a traveler’s phone whenever a traveler enters the country.
What if something like this happened in North Carolina? Let’s 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 suspect’s 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 “[a]ltering, destroying, or stealing evidence of criminal conduct.” That statute makes it a felony for a person to “alter[], destroy[], or steal[] any evidence relevant to any criminal offense or court proceeding.” It also defines “evidence” as “any article or document in the possession of a law‑enforcement officer . . . for the purpose of being introduced in evidence.” The suspect could argue (1) that the contents of the suspect’s phone are unknown, so there is no way to prove that they were “evidence,” 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 officer’s 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 “evidence” 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 officer’s request to examine the phone was predicated on consent, which the suspect wasn’t 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 “it is an obstruction of justice to suppress, fabricate, or destroy physical evidence . . . believing that an official proceeding is pending or about to be instituted.” (Emphasis supplied.) In State v. Ford, 388 N.C. 713 (2025), the court stated that “obstruction of justice merely requires a showing that a defendant acts to stymie law enforcement’s progress or otherwise stall an investigation of a matter.” (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 I’m 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.
