The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When 'Miranda' violations lead to passwords
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.]
"[T]he exclusionary sanction applies to any 'fruits' of a constitutional violation [including] … confessions or statements of the accused obtained during an illegal arrest and detention." United States v. Crews, 445 U.S. 463, 470 (1980). Nevertheless, "[t]he independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." Nix v. Williams, 467 U.S. 431, 443 (1984). Additionally, the independent source doctrine extends to evidence that would have been discovered independent of a constitutional violation. Id. at 447. The reasoning for allowing such evidence is as follows:
[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. In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice. Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct.
Id.; see also United States v. Fellers, 397 F.3d 1090, 1094 (8th Cir. 2005) ("Whether the exclusionary rule applies to evidence acquired subsequent to a constitutional violation requires consideration of the possible admissibility of the evidence in light of the distinct policies and interests of each Amendment.").
Officers executed a valid search warrant which included both the computer and the cell phone. Also, Heffner testified that having the passwords to Ashmore's computer and cell phone made the on-site preview simpler, but that those passwords were unnecessary for a later forensic analysis. 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. Thus, the Court finds that the independent source doctrine applies, and the contents of Ashmore's computer and cell phone will not be suppressed.
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.
I think that allows the government to use data obtained through the use of passwords that themselves were obtained in violation of Miranda, whether the data was decrypted or simply was found more easily as a result of bypassing a password. It doesn't matter if the government could not have gained access to the data any other way. The data can be used because the data is not an answer to the government's question during custodial interrogation.
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.
I appreciate the argument, but I don't think it's persuasive. 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. Even assuming those zeros and ones can be represented as the statements of the person interrogated—which will be true in some cases but not others—they're not the coerced statements themselves. That's my best sense of things, at least. I'll be curious whether others disagree.
The Ashmore court reached the same result, at least based on the facts of this case, by applying the independent source exception (or really the inevitable discovery exception, which is technically different from independent source). But that doesn't fit particularly well. Independent source and inevitable discovery are exceptions to the "fruit of the poisonous tree" doctrine for suppression, which is a doctrine that the Supreme Court rejected in the Miranda context in Oregon v. Elstad. Plus, doctrines such as independent source and inevitable discovery are supposed to require a clearer factual finding than the court offers here about the independent source or the odds of the inevitable discovery. So, I think the court was right as to the result, but that the reasoning of the opinion was off.