Sir, I have a warrant…for your mind

I recently started a very interesting online discussion with an acquaintance after he had share the following article, (Link to original posting with article attachment). It related to a MA high court ruling that said a suspect must turn over the password to an encrypted computer despite claims that doing so would violate the 5th Amendment.  This is raises a lot of questions and an included analogy regarding a warrant demanding the combination of a safe as support for the MA decision raised even more. After doing some cursory research before responding to my acquaintance, I came to the following conclusions shared below. What are your thoughts on the matter? I assure you its not a matter that should be thought out lightly and by no means avoided. ;

Prima facie I would disagree with  the safe combination analogy but can see how one would be compelled by such reasoning, especially and non-critical mind or a legal one looking for a short-cut. However, that reasoning based on the safe combo analogy begs the question.

After taking a few minutes to do some research before answering your question, I did find a few interesting things. The article failed to site any case law or precedent but only pointed out that the combo was subject to a warrant, however a warrant is NOT case law and are challenged daily.

As most know the Stare Decisis principle when applied to case law most applicable when it applies the decision of of higher court versus that of a lower court. That being said I found no US Supreme Court decision that would support the reasoning or even a safe combo analogy. If anything I found the opposite, an a 1988 ruling found in Jon Doe v The United States 487 U.S. 201 (108 S.Ct. 2341, 101 L.Ed.2d 184).   That case refers to a suspect being forced to sign consent forms to access bank account. The ruling supported the US.  In both the opinion and statements of dissent they used the safe analogy, however it did not decide on that specific situation in  the case. I believe that such a case in a supreme court would not be so cut and dry when the statement Justice Stevens, in his dissenting remarks comes into play;

“A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed” (http://www.law.cornell.edu/supremecourt/text/487/201)

So the questions that will have to be answered that is not addressed in the above case, are does the safe analogy in that 1988 case apply here since in and of itself was an analogy and not a ruling and does not that analogy beg the question?  Add to that, in both statements both agree the contents of ones mind should be defended by the 5th and that what the majority decided was that signing a consent form is not such an item.

All this should lead to the ultimate question, I’d imagine the Justices will have to answer. Though it is affirmed that signing a form may not be considered turning over the contents of ones mind, can he same be said about turning over a memorized password?

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About behindtheyellowtape

Joey Ortega started his investigative career early at the age of 18 working as an apprentice investigator for local detectives. He started out doing insurance fraud investigations and background investigations. Proving adept in the areas surveillance and information gathering, Joey continued to seek further investigative challenges. From there he went on to do internal investigations for a number of companies that include; Sears, Roebuck Co., Saks Fifth Avenue, and K-mart. He was largely responsible for investigating issues of internal theft, embezzlement, workers comp fraud, and crime ring investigations. His success eventually earned him a position as a national investigator for a cellular chain, investigating crime rings on a national level. Trained in the Reid technique (interviewing/interrogation), Joey was able to gain confessions consistently without a single prosecution ever being challenged in court. Throughout his career as an internal investigator Joey continued to work for various private investigative agencies. Moving away from insurance fraud, Joey began developing his skills in the areas of criminal defense investigation, fidelity investigation, missing person’s investigations, and stalker investigations. It was the area of stalker investigations that Joey began to discover his passion for computer crime investigations. Having to learn quickly how to trace harassing and threatening emails, Joey began see that this is where the future of crime and justice was heading and decided to throw himself deeply into the subject. As a result, Joey’s clientele began to include those who were victims of internet fraud and cyber attacks. Joey is also the co-founder of The Ullemeyer Group, Inc. an investigative and training firm based in Santa Barbara, California that specializes in forensic training and consulting.
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