I am taking paralegal classes, one of my questions is if the police have a search warrent for a suspects hard drive, sould he be compelled (made to) qive them the key (password) to unlock the information. Do not take into consideration that they will eventually get it anyway. My answer was no he does not have to give it up. I based that on reasoning that if he did that it would be self incriminating, and I think that you don't have to do anything that is self criminating. The rest of the class disagrees with me, and the teacher hasn't weighed in yet. Thanks in advance!
2006-10-12 06:29:52 · 16 answers · asked by Flower Girl 6 in Politics & Government ➔ Law & Ethics
you are right. it is our constitutional right to be able to refrain from saying or doing anything that may incriminate our own self
2006-10-12 06:36:55 · answer #1 · answered by Anonymous · 1⤊ 0⤋
Think of the password as the doorway to your home.
If they have a search warrant for the home, you don't have to hold the door open for them.
You don't even have to unlock the door, but you know that if you refuse to unlock the door, they'll break it down.
Same thing with the computer. You don't have to make it easy for them.
The search warrant says you can't physically interfere with them. It does not require you to do more than stand out of the way.
Oh, and one other thing. You're fairly close on the 5th Amendment thing. Giving them the password is an admission that you had access to the data they find. The data itself might show that, but then again, it might not. Just because electronic data is in your hard drive does not prove that you put it there or even knew about it. Read up on computer viruses if you doubt me.
2006-10-12 06:46:15 · answer #2 · answered by open4one 7 · 2⤊ 0⤋
If the police have a search warrant they will take the entire computer which houses the hard drive. Their experts will take care of getting the hard drive. Think of it this way. How are the police going to "force" a suspect to give them a password?
We're pretty close to it but our own system isn't quite Gitmo-oriented ...yet. Most people know that when the police obtain a "hard drive" they take the entire computer. Then it is theirs.The police cannot MAKE the suspect do anything, except to "come with us"
2006-10-12 07:01:42 · answer #3 · answered by Anonymous · 1⤊ 0⤋
I think you are absolutely correct. In the US, under the 5th Amendment, the police can never "compel" anyone to say anything that may tend to self-incriminate that person. The Supreme Court, in the Miranda case, ruled that the police must inform a suspect of his or her "Miranda" rights before questioning. One of those rights is, "the right to remain silent."
A search warrant is what the name implies, it gives the police the right to search and seize private property. It does not give the police the power to violate anyone's fifth amendment rights.
Good luck with your class!
2006-10-12 07:15:15 · answer #4 · answered by www.lvtrafficticketguy.com 5 · 1⤊ 0⤋
This is a good question, actually.
If the police have a warrant to search your home, you don't have to let them in, or allow them into each room. The warrant simply gives them the right to bust down the door if you can't or won't let them in.
However, if you try to hamper their ability to enter and search the house or room they have the warrant for, then you are interfering with an investigation, and they could levy charges against you for obstruction of justice, or impeding a peace officer.
The police could try to argue that by refusing to give them your password, you are obstructing justice, just like you would be doing if you tried to block them from entering a room or house that they have a right to search. In that case, it could cost you more money in fines and more jail time. The judge, if he rules in their favor, could order you to be jailed until you provide the password, and fined each day that you fail to comply with the court's order.
Ultimately, it will be the judge who decides whether or not you have the right to refuse to give up the password, and if doing so is self incrimination.
Chances are, the judge will rule against you, so you might as well give up the password, let them find the porn, and serve your time like a good criminal.
:)
2006-10-12 10:56:10 · answer #5 · answered by elchistoso69 5 · 0⤊ 1⤋
The warrant gives them physical access to the machine. They can disassemble it, make copies of the hard drive contents, and use software to crack your password and any encryption mechanism you have put in place.
They might try to get a warrant to compel you to reveal the code, and I suppose you might end up being in contempt of court if you don't answer the question. But otherwise I believe your understanding prevails - the search warrant itself does not require you to give them the code.
2006-10-12 08:49:17 · answer #6 · answered by Anonymous · 1⤊ 0⤋
you make this way to hard when it is simple and you haven't got the answer yet. does it state anywhere on the warrant that the suspect has to provide a password. this is a simple yes or no question. lets take this one step further. cop asks suspect for the password. suspect gives him the password. cop enters the password and a poison pill erases the hard drive. look up the word paradigm. your teacher is looking to see how smart or how dumb you guys are.
2006-10-13 07:22:47 · answer #7 · answered by Anonymous · 0⤊ 1⤋
OK, they don't usually enter the computer on scene, they have a warrant for the hard drive which means they pick up the hard drive, take it with them and access your information some where other than your own home. No passwords required, they have programs to enter without one.
2006-10-12 06:39:15 · answer #8 · answered by Tulip 7 · 0⤊ 1⤋
Whom ever said that you have to give the username and password is incorrect.
Once the warrant is executed, it's up to the police and people involved to obtain data from that drive with or without your help.
I agree with you that it would be self incriminating, and would be self-destructive to any defendants case.
2006-10-12 06:38:02 · answer #9 · answered by northyankeefun 3 · 2⤊ 0⤋
He would be compelled to surrender the password.
If the police obtain a search warrant to look through your residence, you can't simply lock the door and keep them out.
Well, you can, but you'll pay dearly for interfering with an official investigation :P
2006-10-12 10:59:36 · answer #10 · answered by mike225 2 · 0⤊ 1⤋
I would tend to agree with you. If you don't open the door for them, they kick it in. If you don't give up the password, a computer specialist will get it for them. It just may take a little longer. They cannot make you say anything as in "anything you say can and will be used against you."
2006-10-12 06:41:35 · answer #11 · answered by Kate 3 · 2⤊ 0⤋