When Suppression Is A Hollow Victory: The Password Exception To Miranda

Miranda warnings, thought by the Court at the time to be so obviously the way to tell people to STFU, never worked. People get told to shut up and talk anyway. There is no warning that stops people from being people. But the weirdest part is that giving Miranda warnings is a slam dunk for the cops. Just read it off the card and boom, you win.

It’s rather crazy when the cops neglect to give the warnings, and yet it happens.

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?

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.

But no Miranda, so the passwords were unconstitutionally obtained, as was any deriviative evidence obtained as a result of the unlawful interrogation. After all fruit of the poisonous tree, right? 

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.

Wait, what? Nobody cares about suppressing the passwords themselves. Who gives a damn about the cop uttering, “cutePuppy1000!” at trial? It’s the fruits, the damning evidence, not the passwords.

[I]f the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings.

The contention was that the computer and cellphone were seized pursuant to a search warrant, and the exaction of the non-Mirandized passwords just make it smoother and easier to inspect the devices at the time. But even if Ashmore hadn’t given them up, the government would have broken the passwords anyway.

Heffner stated that during forensics he removes the hard drive from the computer and does not need a password to access the hard drive unless it is encrypted, and Ashmore’s hard drive was not encrypted. In addition, Ashmore’s cell phone was a Samsung Android, which, according to Heffner, have passwords that can be bypassed with the right software or equipment. Heffner made clear that he would have been able to access the information on Ashmore’s computer and cell phone without the passwords provided by Ashmore at his residence.

In other words, no harm, no foul. So what if there was a constitutional violation, since they win either way.  Bad news? Have a seat because we’re not done yet. Orin Kerr wants to make your day just a little bit worse.

I think this is the right result but that the reasoning is wrong. The plain-text data on the computer and phone should be admitted because the only remedy for Miranda violations is suppression of the statement obtained from the person questioned in violation of the Miranda rules. Under United States v. Patane, 542 U.S. 630 (2004), if a statement obtained in violation of Miranda leads the police to physical evidence, the physical evidence is still admissible. Most people don’t realize Miranda remedies are so narrow, and I’m not sure Patane is persuasive. But that’s the current state of the case law.

Patane is one of those cases that either should/shouldn’t apply based on how much you enjoy analogizing the physical world to the digital world. While the Supreme Court began to recognize that maybe, just maybe, they weren’t exactly the same in Riley, there remains a long, long way to go to distinguish binary code from, oh, a gun or a dead body.

Granted, one might argue that computer files are outside the Patane rule because they are not “physical evidence.” They’re useful as words and images, which is different from a physical item, such as the seized gun in Patane.

Orin comes down on the side of physical evidence, because reasons.

The Patane distinction is between the incriminating statements deemed coerced because they were obtained in violation of Miranda (suppressed) and other kinds of evidence (not suppressed). Zeros and ones on a hard drive or phone fall on the non-suppressible side of that line, I think.

Remember the Christian Burial speech in Brewer v. Williams? The admission was suppressed, but not the dead body. Are the digital contents a dead body or Ashmore’s speech and thought, reduced to disk?

While the preferred rationale might hold some theoretical fascination, and certainly matters for the purpose of Fourth Amendment doctrine should the Supreme Court end up deciding whether digital is different, it’s worth noting that the question here isn’t whether the violation of Miranda results in the defendant being convicted nonetheless. He’s screwed no matter what. Rather, the argument here is whether he’s burned under one theory or another.

But the original question, whether the Miranda violation should result in suppression of just the words obtained or their fruits, is where the case is won or lost.  Was there really “no rational basis” to Wong Sun the content?  How about compelling the police to give the Miranda warnings, even though they’re a big ol’ funny joke anyways, particularly when there is no incentive whatsoever to prevent them happily violating Miranda when the statements elicited from a presumptively coerced interrogation isn’t the point.

The cops wanted passwords to access the devices, not to testify about passwords. So what this case is really all about is the new password exception to Miranda, regardless of what doctrine is used to rationalize it afterward, as long as they can still convict him.

19 thoughts on “When Suppression Is A Hollow Victory: The Password Exception To Miranda

  1. Derek Ramsey

    This is different from Francis Rawls where the password unlocked an encrypted computer. The use of Ashmore’s password just made it slightly easier to acquire the physical evidence. A warrant was still needed to seize the computer. The use of a password is purely convenience and nothing more.

    The distinction between physical evidence and speech and thought is given too much consideration because you overweight the causal link between a password and the data it ‘protects’. It’s like putting a padlock on the front door of your house and leaving the back door unlocked. Having the lock prevents you from having to walk around to the back of the house when you get home from work, but doesn’t make your house more secure. From a technical perspective the notion that a password protects an unencrypted computer is absurd.

    Nobody cares about suppressing the passwords themselves.

    A password is more than just a password. (http://mimesislaw.com/fault-lines/giving-up-the-password-gives-up-much-more/12709)

    Also, if computer digital content is non-physical, then shouldn’t it be treated the same as DNA, which is also digital code?

    1. SHG Post author

      Cool analogy, bro. I’ve made the point in the past the judges might be the worst people to make decisions about technology, given their lack of understanding of how it works and their lack of appreciation of the role it plays in society. But I may be wrong. I think tech people may be even worse than judges, as they know much more but have so little understanding of law that they would give all their rights away and feel pretty smart about it.

      1. Derek Ramsey

        If a judge treated the admissibility of computer evidence from an encrypted computer the same as an unencrypted computer in a similar case, then yes, selling one’s rights would be very dear indeed.

        1. SHG Post author

          I will alert the millions of computer users who believed they had a reasonable expectation of privacy as well as a remedy for coerced statements under Miranda that you told them it was their own damn fault. They can spend the ensuing decades feelings awful for their lack of mad computer skillz.

          1. Derek Ramsey

            The real problem is that, per Orin Kerr, the exceptions to the exclusionary rule probably apply to data that was decrypted.

            Of course there should be a remedy, but I’m making a different argument. It isn’t just whether the independent source exception or the inevitable discovery exception should apply. Computer passwords don’t actually lead to computer evidence. That’s just illusion. The expectations and feelings of computer users don’t change what the password actually does. They will still feel awful, but it isn’t their fault.

            1. SHG Post author

              The expectations and feelings of computer users don’t change what the password actually does.

              Katz v. United States holds that the Fourth Amendment protects areas in which an individual has a reasonable expectation of privacy. I’ve let you have three comments now, each worse than the one before it, and none remotely thoughtful. Time to give it a rest.

  2. Peeper

    Assuming the cops had a warrant to collect the computer, and that the passwords were merely used for access control rather than encryption, it makes no difference whatsoever in this case whether or not the cops got the passwords before issuing a Miranda warning.
    If the subject disks were encrypted, then the issue becomes relevant.

      1. Christopher Best

        You wanted an argument? Oh! I’m sorry! This is abuse!
        Aha! No, you want room 12A, next door.

  3. Norahc

    I wonder how long it will be before an officer tries to slip “user passwords to unlock the device” into the search warrant. That way they can claim the passwords they obtained are just part of fulfilling the warrant.

  4. Joseph

    >But the original question, whether the Miranda violation should result in suppression of just the words obtained or their fruits, is where the case is won or lost.

    I thought the point of inevitable discovery was that material that would have been discovered without the violation didn’t count as fruit.

    1. SHG Post author

      Inevitable discovery is a fairly recent, and controversial, exception. On one hand, it assumes something that never happened (here, they would have been able to break the password regardless). Could they? Who knows, because they didn’t have to. On the other, it fails its purpose in preventing constitutional violations under the “no harm, no foul,” rule. If adhering to the Constitution is a worthy goal, then it shouldn’t be incentivized or ignored, even if it means a guilty guy walks once in a while.

  5. D-Poll

    A better analogy, for those who need analogies, might be to a combination-locked box containing the same information on paper. From a purely practical standpoint, there’s no philosophical distinction to be made between the two. Of course, it probably goes without saying that the courts would still decline to suppress, lest the bad criminals get away just because the poor police made an honest mistake.

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