Can My Leader Take My Cell Phone During Duty Hours

Short Answer

Typically No! As long as it is personal property.

Discussion

The military cannot confiscate private property without probable cause or a warrant. This would be a violation of the Soldier’s Fourth Amendment rights. The NCO can order the Soldiers not turn on their phones during duty hours or to not have their phones out during duty hours, except for an emergency. If the Soldier fails to obey this order, then they can be subject to the full range of disciplinary actions from counseling through UCMJ actions.

Seizure of property is covered under the MCM – Military Rules of Evidence – Rule 316 – page III-16. Even though I’m sure the intent of confiscating the phones is to keep the Soldiers focused on the mission, the NCO should issue an order as mentioned above and then follow through with subsequently increases in disciplinary measures. The other question would be, is the NCO going to be liable for any damage or loss to the phones when in his/her possession? If it were me and my NCO insisted on doing this, I would obey so as not to be accused of failing to follow orders, but I would insist the NCO sign a hand receipt for the phone.

Exceptions

Now there are some situations where it would be appropriate as long as the policy is approved by the commander.

Let’s say your unit is about to deploy and for the purpose of Operational Security the command wants to confiscate cell phones.  The commander will typically confer with JAG and there will be a process established to collect, maintain custody, and return the phones to the owner at a given time.

Let’s say you work in a secured environment or classified area in which cell phones might pose a security or safety issue. Then there are grounds to ensure the cell phones do not access these areas.  Usually there are lock boxes outside these areas in which the owner places their phone in the lock box before entering the area and retrieves it when leaving the area.

Unless the commander has given the Platoon Sergeant the authority to collect phones (under legal conditions) I would say there are no grounds to collect personal property and I believe that would be unlawful confiscation of property as well.

Items to Consider

• Discussing the issue with the leader directly.
• Discussing the issue with your chain of command.
• Other Courses of Action available are your local JAG or IG. You can make an anonymous call to the IG to get specific facts on your situation.

Special Thanks

To our legal SME Eck for helping out with this question