Can Federal Agents Force You to Give up Your Computer Password?

Whether the government can force a suspect in a criminal investigation to provide the password to a computer or cell phone is an issue which frequently comes up in cases involving illegal pornographic material and other computer crimes. As a general rule, the Fifth Amendment provides the right against self-incrimination, meaning the government cannot compel a suspect or criminal defendant to say something which could lead to criminal liability. However, there are a number of exceptions to this blanket rule, and whether or not the exceptions apply could depend on whether you are being investigated with a crime by federal agents or local police or charged with an offense in state or federal court. This article focuses on a recent Third Circuit decision which allowed federal prosecutors to compel the production of a computer password from a suspect. The Pennsylvania Supreme Court, however, has found that a state court may not issue such an order as doing so would violate the Fifth Amendment.

United States v. Apple MacPro Computer

Recently, the United States Court of Appeals for the Third Circuit held that in at least some circumstances, the police may obtain a court order requiring an individual to produce the password to a computer, hard drive, or cell phone. In United States v. Apple MacPro Computer, the Third Circuit upheld a contempt citation issued against a suspect (John Doe) who was being investigated for child pornography due to the Doe’s refusal to produce the password to certain hard drives which investigators recovered pursuant to a search warrant.

The procedural history of the case is a little bit convoluted, but the facts are fairly straight-forward. During a child pornography investigation, Delaware County investigators executed a search warrant on Doe’s residence. They recovered a number of phones, computers, and hard drives. Federal agents subsequently obtained a search warrant to examine the seized devices. Doe provided the password for one of the phones, but he refused to provide the passwords to various other devices. Forensic examination of one of Doe’s computers showed evidence that the computer had been used to access child pornography, but investigators were not able to view the full contents of the computer without the password because of encryption on the device.

In addition to seizing and examining the computers, the Delaware County investigators interviewed Doe’s sister. Doe’s sister confirmed that she had previously lived with Doe and Doe had actually shown her hundreds of images of child pornography on the encrypted hard drives. She also told investigators that Doe had videos of children engaged in sex acts on the devices.

Based on this showing, the federal investigators obtained an order under the All Writs Act compelling Doe to provide the relevant passwords. The All Writs Act is a relatively obscure federal statute which gained notoriety during the investigation of the San Bernadino terrorist attack when the FBI sought to compel Apple to unlock the attacker’s iPhone. It permits federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Under the Act, federal courts may issue orders “as may be necessary or appropriate to effective and prevent the frustration of” previously issued orders in cases in which the court already had jurisdiction.

Doe filed a Motion to Quash the order, arguing that the order violated his Fifth Amendment rights against self-incrimination. The federal court denied the Motion to Quash and directed Doe to unlock the devices for the investigators. Doe did not appeal, but he refused to unlock some of the devices, claiming that he had forgotten the passwords. He was eventually held in contempt by the District Court, and the Court ordered that he remain in federal custody until he was willing to unlock the devices.

The Third Circuit’s Ruling

On appeal, the Third Circuit affirmed the District Court’s ruling. Due to the unusual procedural posture of the case, the Third Circuit applied a highly deferential plain error standard of review to the District Court’s decision. First, the Third Circuit panel found that the District Court had properly issued the order under the All Writs Act. Second, the Third Circuit agreed that ordering Doe to unlock the phone would not violate his Fifth Amendment rights because of the “foregone conclusion” exception to the Fifth Amendment. Noting that the Fifth Amendment applies only when the accused is compelled to make a testimonial communication that is incriminating, the Third Circuit recognized that the mere act of producing evidence such as a physical object or some type of records in response to a subpoena or court order can be incriminating because the act of production concedes the existence of the evidence and the possession and control thereof by the defendant. In that situation, the Fifth Amendment applies and would prevent compelled production of evidence.

What is the foregone conclusion doctrine?

However, there is also a “foregone conclusion” exception. The Fifth Amendment does not protect an act of production when the existence, custody, and authenticity of the evidence is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Thus, because the government could prove through the forensic examination of the devices and the testimony of Doe’s sister that 1) the devices existed and the Government already had custody of them, 2) Doe possessed, accessed, and owned all the devices, and 3) there was child pornography on the devices, the foregone conclusion doctrine applied. Therefore, the Third Circuit affirmed the District Court’s finding of contempt.  

As the case makes clear, the issue of whether a suspect or criminal defendant can be compelled to produce a password is not totally settled, and it depends heavily on the facts involved. In cases where the government can prove that the defendant had ownership of the devices and used them to view child pornography or that they contain some other critical evidence, the government may be able to punish a defendant who refuses to unlock the device. However, in many cases, this will be a difficult showing for the government to make as the government will not often have witnesses like Doe’s sister who observed the defendant viewing the child pornography or damaging admissions from the defendant about who owned the devices. Likewise, it is very important that the government was able to determine that the devices contained contraband even on the unencrypted portions of the drives.

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Can the Police Search My Car?

Can the Police Search Your Car? 

If the police searched your car and uncovered illegal contraband in Pennsylvania or New Jersey, you should speak with one of our Philadelphia criminal lawyers today. Our defense attorneys have won many motions to suppress and constructive possession trials in cases involving guns, drugs, and other illegally seized evidence. We will fight for your constitutional rights and to ensure that illegally seized items are not introduced into evidence against you. Call 267-225-2545 for a complimentary criminal defense strategy session with one of our top-rated Philadelphia criminal defense lawyers.

Do Police Need a Search Warrant to Search a Car? 

The legality of car searches by the police is frequently at issue in cases involving possessory offenses such as firearms cases and drug possession cases. In general, if the police conduct an illegal search or seizure, then the evidence obtained as a result of the illegal conduct could be suppressed. In many cases, the suppression of the critical evidence could lead to the dismissal of charges. However, the police typically have more authority for when they can search your car than for when they can search a house.

The general rule under the United States and Pennsylvania Constitutions is that law enforcement officers need a search warrant to conduct a search. However, the courts have created so many exceptions to this general rule that the rule essentially only applies to searches of houses or other types of residences and more recently, cell phones. Unsurprisingly, there are a number of exceptions which could permit a police search of a vehicle without a search warrant depending on the facts of the case.

Consent to Search the Vehicle

First, the police can always conduct a search when they have the consent of the owner or operator of the vehicle. If the police pull over a vehicle for a traffic infraction and are suspicious of the driver for some reason, they can always ask the driver for permission to search the car. If the driver gives them permission, then they may search the car and can use anything that they find as evidence in court. The only challenges which could be brought via a Motion to Suppress in this instance would be to the legality of the initial stop and whether the driver actually gave consent or whether the consent was fabricated or coerced.

Therefore, our advice is that you should not give permission or consent should the police ask if they can search your car. However, if the police decide to conduct a search anyway, you should not attempt to resist. Instead, it is best to remain calm while they conduct the search and speak with an attorney about your legal options once the encounter has ended.

Police Usually Need Probable Cause to Conduct a Car Search

Second, courts have developed an “automobile exception” to the warrant requirement. Under the United States Constitution, police officers and federal agents typically do not need a warrant to conduct a search of a vehicle. Instead, because of the inherent mobility of an automobile, they may search the vehicle if they have probable cause to do so. Probable cause means that it is more likely than not that the police will find contraband or some evidence of a crime. Thus, if police have probable cause, they do not have to obtain a warrant or consent prior to conduct a search.

An example would be a situation in which police pull a suspect over for swerving and upon approach, the officers believe the driver to be under the influence of alcohol. While questioning the driver, one of the officers smells alcohol coming from inside the actual vehicle. In that case, a prosecutor would argue that police have probable cause to enter the vehicle and determine the source of the odor because it was more likely than not that police might find spilled alcohol or a beer can which would be evidence in the subsequent DUI case against the driver.

Until recently, Pennsylvania took a more limited approach to the automobile exception. Previously, in order to evade the warrant requirement, prosecutors were required to show both that the police had probable cause to search a vehicle and that some sort of exigent circumstances applied, meaning that evidence could be lost should the police be required to obtain a warrant. However, in Commonwealth v. Gary, the Pennsylvania Supreme Court abolished the exigent circumstances requirement and adopted the federal automobile exception, meaning that police can now search a vehicle whenever they have probable cause to do so.

Although Gary is the law today, the Pennsylvania Supreme Court recently agreed to review whether Gary is correctly decided or whether law enforcement officers should have to obtain a search warrant prior to searching a car absent exigent or unusual circumstances. Therefore, it is possible that the current court could reinstate the rule that police must obtain a warrant prior to searching a car if they want the evidence to be admissible in Pennsylvania state court.

Other Exceptions Which Allow Law Enforcement to Search a Car

Third, there are a number of other potential scenarios in which the police can search a car without a warrant. For example, if the police end up arresting the driver of the car, then there are some circumstances in which the police may conduct a search of the car as a “search incident to arrest.” However, in Arizona v. Gant, the United States Supreme Court held that police may only conduct this type of search incident to arrest of a car when the police reasonably believe that they are likely to find evidence of the offense of arrest. This means that officers cannot automatically search a car as a search incident to an arrest for a suspended registration or suspended driver’s license. Instead, police must have some reason to believe they are going to find more evidence of the crime for which they arrested the driver in the vehicle.

Additionally, the police may, in some occasions, conduct an inventory search of a car if they are required to tow it after arresting or citing the driver. However, recent case law has substantially limited the authority of the police to conduct an inventory search of a car (commonly called a LIVESTOP in Philadelphia), and some of these inventory searches are now subject to challenge with a motion to suppress.

Police Can Sometimes Frisk A Car

Finally, police may also conduct a limited search of a vehicle if they have reasonable suspicion that the driver or passenger was engaged in criminal activity and that he or she was armed an dangerous. In that situation, the Terry doctrine allows them to conduct a “frisk” of the areas which were accessible to the driver to ensure that the driver will not have access to weapons if he or she is allowed to return to the vehicle. Of course, if the police find contraband or are able to see contraband while conducting the frisk, then they may enter the vehicle to retrieve the contraband and use it as evidence in a criminal prosecution under the plain view or plain feel doctrines.

There are other exceptions to these general rules and other issues which frequently come up such as K9 searches and the duration of time during which the police may detain a vehicle an conduct an investigation pursuant to a traffic stop. However, those issues will be the subject of future articles.

How A Philadelphia Criminal Lawyer Can Help

Clearly, there are a lot of exceptions which allow the police to search a car without a warrant, and we are likely at a point where the exceptions have begun to swallow the rule. This means that the answer to the question, “Can the police search my car?” is unfortunately that it depends on the circumstances. It is clear that police are not required to obtain a search warrant to search a car during a traffic stop. Instead, they are typically going to be required to make some sort of showing of either probable cause or reasonable suspicion in order to justify a search, and these searches are often subject to challenge with a motion to suppress.

If it can be shown that the initial stop was illegal, or that the police did not have actual reason to believe that they would find contraband in the car, it may be possible to have the evidence suppressed and excluded at trial. Likewise, if the police claim that the defendant consented to the search but the defendant and witnesses in the car disagree, it may be possible to prove that the consent was fabricated or coerced. Each case is different, and despite the elimination of the warrant requirement for vehicle searches, there are still real limits on the ability of the police to search a car. The bottom line is that illegally seized evidence usually cannot be used against you in court, and in many cases, it remains possible to challenge the warrantless search of an automobile. 

If the police searched your car and found something illegal in Pennsylvania or New jersey, you need the services of one of our Philadelphia criminal defense lawyers. We have won countless motions to suppress and trials on gun and drug charges. We will fight to protect your rights and make sure that illegally seized evidence is not used against you. Call 267-225-2545 for a complimentary criminal defense strategy session with one of our top-rated Philadelphia criminal defense lawyers.

How can I find out if I have an arrest warrant in Pennsylvania?

Philadelphia Criminal Defense Lawyer Zak Goldstein

We frequently hear from people who are trying to figure out if they currently have an active warrant for their arrest. This is because the police do not always tell you if you have an arrest warrant pending or even attempt to execute a warrant once they have obtained one. It is also possible that prosecutors could have filed charges in a jurisdiction in which you do not live or that mail notifying you of pending charges could have been sent to an old address and that you may not have received it. Fortunately, there are a number of ways to find out if you have a warrant for your arrest.

1) A Criminal Defense Lawyer Can Help You Find Out If You Have An Arrest Warrant

The best way to find out if you have a warrant for your arrest is to contact a local criminal defense lawyer in the jurisdiction where you may have a warrant. A defense attorney will typically be able to contact the local police or prosecutors and/or check the court dockets to find out if you may have charges pending. Additionally, if it turns out that you do have charges pending, you can then retain an attorney to help you turn yourself in and resolve the warrant. There are significant benefits to retaining an attorney before you turn yourself in. For example, if you retain a criminal defense lawyer prior to turning yourself in, the police will not be a able to attempt to question you and obtain a confession, you may be processed more quickly, and your bail will likely be lower as your attorney will be able to represent you for a preliminary arraignment. In addition, the defense attorney can start investigating your case right away, work with you on building a defense, and give you advice on what to expect from the criminal justice process before you turn yourself in. It also helps you avoid the police showing up to your house or work without notice.

2) You Can Find Out If You Have A Warrant At The Police Station

You can also find out if you have an arrest warrant by going to the police station, providing the officers with identification, and asking them to run you for warrants. This is probably the worst way to to find out if you have a warrant because if it turns out that you have one, the police will almost definitely take you into custody. They may try to question you, they will definitely search you, and you will likely not have the benefit of an attorney for preliminary arraignment. Therefore, it is a much better idea to speak with a defense attorney prior to turning yourself in if you are concerned that you could have a warrant pending.

3) Some Arrest Warrants Show Up Online in Pennsylvania

In Philadelphia, new arrest warrants for state court charges do not show up online. Federal warrants also typically do not show up on the federal PACER court docket system until the defendant has actually been arrested. Outside of Philadelphia, however, many warrants will show up on the court dockets as a docket will be created and listed as an “inactive” case when the charges are filed by the assigned detective. You can search for your name on the Pennsylvania Court Website here under Magisterial District Courts and see if you have a warrant. Although the dockets may be able to give you some information, not all warrants show up on the dockets, they never show up for new Philadelphia cases, and the information is not always easy to understand. They will also not tell you about federal cases or sealed arrest warrants. Finally, active bench warrants will usually show up on court dockets even for Philadelphia cases as the docket will have an entry for the hearing at which the bench warrant was issued and the case will typically be listed as inactive. Therefore, the court dockets are not a bad place to start, but just because your name does not show up does not necessarily mean there is no warrant. If your name shows up on the dockets or you are still concerned that there could be a warrant, you should speak with a defense attorney.

4) Warrants May Show Up On a Private Background Check

In some cases, a pending arrest warrant may also show up on a private background check. However, background checks are often expensive and not always reliable, so this is typically not the best way to find out if you need to retain a defense attorney and turn yourself in. In general, if you are concerned that the police are looking for you, your best bet is to call a criminal defense attorney today.

Facing criminal charges? We can help.

If you are under investigation or facing criminal charges, we can help. We may also be able to help you determine if you have a pending arrest warrant. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients who were facing charges including DUI, Murder, Aggravated Assault, Possession with the Intent to Deliver, and Violations of the Uniform Firearms Code. We offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with an award-winning defense attorney today.

If Police Get a Search Warrant, You Have to Submit to a Blood Draw

Philadelphia Criminal Defense Lawyer

The Superior Court has decided the case of Commonwealth v. Palchanes, holding that the trial court properly convicted the defendant of obstructing the administration of law or other governmental function. In this case, police obtained a valid search warrant for the defendant’s blood due to a suspected case of DUI, the defendant refused to submit to the blood draw, and the police then charged him with a violation of 18 Pa.C.S. Section 5101. This case makes it clear that the failure to comply with a valid search warrant can be punished criminally.

The Facts of Palchanes

The defendant was pulled over by Hellertown Police for speeding. The investigating officer ultimately concluded that the defendant was likely under the influence of alcohol. The officer placed him under arrest and transported him to the county’s DUI processing center. The defendant refused to submit to a warrantless blood draw, so the officers applied for and obtained a search warrant for the defendant’s blood. Even after officers presented the defendant with the search warrant, the defendant continued to resist the blood draw. Prosecutors eventually filed charges against the defendant for obstructing the administration of law or other governmental function and tampering with evidence. The Commonwealth subsequently withdrew the tampering charge. A jury found the defendant guilty of obstruction and not guilty of DUI, and the defendant appealed.

The Superior Court Appeal

The defendant appealed to the Pennsylvania Superior Court. On appeal, he argued only that the evidence was insufficient to support his conviction for obstruction. Per the crimes code:

A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

Thus, the crime has two elements: 1) an intent to obstruct the administration of law, and 2) an act of affirmative interference with governmental functions. Affirmative interference does not necessarily mean physical contact with an officer. Further, police are not obligated to inform you that you are going to be arrested or charged with a crime for failure to submit to a blood test or comply with a lawful order. Therefore, the Superior Court upheld the conviction in this case, finding that the defendant acted criminally in refusing to comply with the warrant.

Do I have to submit to a blood test if I have been arrested for DUI?

Based on this case, the answer is that it depends. If the police have not obtained a search warrant, then you do not have to submit to a blood test, and the failure to cooperate with the police in this regard cannot be used to subject you to criminal penalties or enhanced penalties for refusal upon conviction for DUI. It can, however, potentially be used as evidence against you as evidence of the consciousness of guilt in a DUI trial. If the police have obtained a search warrant, however, the Superior Court has now held you are legally required to comply with that search warrant and submit to the blood test.

Facing criminal charges? We can help.

Criminal Defense Lawyers

If you are under investigation or facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients who were facing charges including DUI, Murder, Aggravated Assault, Possession with the Intent to Deliver, and Violations of the Uniform Firearms Code. We offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with an award-winning defense attorney today.