When Miranda violations lead to passwords
When ‘Miranda’ violations lead to passwords
By Orin Kerr
December 12 at 1:26 PM
A new decision, United States v. Ashmore (W.D. Ark. December 7, 2016), raises an interesting question at the intersection of new technology and constitutional rights: If the government violates a suspect’s Miranda rights, interrogating him without reading Miranda warnings, and during the interrogation obtains the suspect’s passwords that are then used to access his phone and computer, are the phone and computer admissible in court?
The district court held that the passwords themselves must be suppressed but that, on the specific facts of this case, the evidence on the devices should not be suppressed. I think that’s the right result, although the court reached that result for the wrong reason. And I think that the government should win on much broader grounds than the court realized.
In the case, the government had a warrant to search Ashmore’s home for child pornography. Officers entered the home and questioned Ashmore without reading him his Miranda rights. The officers asked Ashmore for the passwords to his computer and phone, which he gave them. Ashmore’s computer was password-protected but not encrypted. His phone was a Samsung Android that was password-protected, although the details of how are not in the opinion.
The court ruled that the government violated Miranda when questioning Ashmore without first reading him his rights and getting a waiver. (The Miranda violation itself is pretty interesting, but I’ll pass over that here to focus on the tech issues.) But when it came to the remedy, the remedy was narrow. The passwords themselves couldn’t be used, but the evidence on the phone and laptop was admissible because of the independent source exception to the exclusionary rule. Here’s the analysis with paragraph breaks added:
Finally, Ashmore seeks to have any fruits of his confessions suppressed. Specifically, he provided officers with the passwords to his computer and cell phone during the custodial interrogation. The Court will suppress the passwords themselves from disclosure at trial, but will not suppress the evidence obtained on the computer and cell phone because the independent source doctrine applies. )(Footnote: The independent source doctrine typically applies to Fourth Amendment searches and seizures, but it can apply to any constitutional violation. Here, the Fourth Amendment was implicated by officers executing a valid search warrant which included Ashmore’s computer and cell phone.)
More:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/12/when-miranda-violations-lead-to-passwords/?utm_term=.7b4652ad7050
