April 17, 2024 – The railroad industry’s rapid growth in the 19th century transformed American law and politics.
Abraham Lincoln made his mark as a trial lawyer in 1850s Illinois by defending railroads. Congress created the Interstate Commerce Commission in 1887 to regulate them.
And torts textbooks are larded with railroad cases, including
Palsgraf v. Long Island Railroad Co.1 – famous for its discussion of foreseeability related to a package that exploded when dropped by a man stepping off a train.
The proliferation of digital devices over the last two decades promises to shape law and society as profoundly as railroads did.
This article examines three cases involving constitutional issues related to the searches of digital devices – issues that might soon be taken up by Wisconsin courts.
Lindell v. United States2
On Sept. 13, 2022, FBI agents, acting pursuant to a search warrant, seized Mike Lindell’s cell phone as part of an investigation into a security breach of election machine servers in Colorado.
Jeff M. Brown, Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.
Lindell challenged the issuance of the search warrant by filing a lawsuit in the U.S. District Court for the District of Minnesota. He asked the court, using its equitable powers, to order the government to return the phone.
Lindell claimed that the search warrant was a general warrant that violated the Fourth Amendment’s requirements that a warrant particularly describe the person, places, or things to be searched. He also claimed that the government had held onto his phone too long.
The district court ruled for the government. Lindell appealed.
The U.S. Court of Appeals for the Eighth Circuit ruled that the warrant was not a general warrant.
Writing for a three-judge panel, Judge Ralph Erickson acknowledged that Lindell’s cell phone almost certainly contained a wealth of information unrelated to the investigation into the security breach of the election machine servers.
But he pointed out that the government had put in place filter protocols to protect confidential, private, and privileged information on the phone.
Judge Erickson also noted that Lindell had admitted backing up the contents of the cell phone five days before the FBI seized it.
“Under these circumstances, Lindell cannot show that the government’s seizure of the data consistent with the terms of the search warrant has caused irreparable injury to warrant the exercise of equitable jurisdiction,” Judge Erickson wrote.
Regarding Lindell’s claim that the government had held onto his phone for too long, Judge Erickson explained that “there are no procedural or time limits on the retention of property seized pursuant to a warrant, even that which is not contraband, if the government believes that it has ‘an ongoing evidentiary need’ for the property.”
Judge Erickson noted that at oral argument – which took place nine months after Lindell sued to get his phone back – the only need cited by the government for holding on to the phone was authentication.
But Judge Erickson reasoned that there were multiple ways to authenticate the phone, and the government hadn’t explained why it couldn’t authenticate Lindell’s phone some other way.
Consequently, the Eighth Circuit remanded the case to the district court with instructions to balance the government’s interest in keeping Lindell’s phone and its data with Lindell’s interest in having the phone returned.
In re Grand Jury Subpoena Duces Tecum3
In March 2010, law enforcement officers in Florida began investigating John Doe for allegedly sharing sexually explicit videos of underage girls on YouTube.
The police tracked Doe to a hotel room in California. A judge issued a search warrant for the hotel room.
The police seized two laptops and five external hard drives from the hotel room. But portions of each drive were encrypted, and forensic examiners from the FBI were unable to access those portions.
A federal grand jury subpoena required Doe to produce the unencrypted contents of the hard drives. Doe refused to comply with the subpoena, citing his right against self-incrimination under the Fifth Amendment.
The U.S. Attorney for the Northern District of Florida requested that the U.S. District Court for the Northern District of Florida grant Doe limited act-of-production immunity.
The district court held a show cause hearing and concluded that forcing Doe to decrypt the hard drives and using the decrypted contents of the hard drive to show that they contained child pornography would not constitute a derivative use of his immunized grand jury testimony in violation of the Fifth Amendment.
The district court found Doe in contempt and committed Doe to the custody of the U.S. Marshal. Doe appealed.
A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reversed the district court.
The government argued that it hadn’t sought testimony from Doe – it had only wanted him to hand over the encrypted files.
But in an opinion written by Judge Gerald Tjoflat, the Eleventh Circuit concluded that the mere act of Doe granting the government access to the files was testimonial and thus subject to the Fifth Amendment’s prohibition against self-incrimination.
Tjoflat cited a U.S. Supreme Court case,
United States v. Hubbell, 530 U.S. 27 (2000), in which the Supreme Court held that the defendant’s production of documents was testimonial for purposes of the Fifth Amendment because the government had no knowledge of the existence of the documents, other than suspecting that they existed.
“The touchstone of whether an act of production is testimonial is whether the Government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact,” Tjoflat wrote, citing another Supreme Court case.
Judge Tjoflat wrote that forcing Doe to decrypt and produce the contents of the hard drives “would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.”
Judge Tjoflat pointed out that nothing in the record showed that the government even knew whether any files existed on the hard drives, or if such files did exist, where on the hard drive they existed.
“We are not persuaded by the suggestion that simply because the devices were encrypted necessarily means that Doe was trying to hide something,” Judge Tjoflat wrote.
“Caselaw from the Supreme Court does not demand that the Government identify exactly the documents it seeks, but it does require some specificity in its requests – categorical requests for documents that the Government anticipates are likely to exist simply will not suffice.
State. v. Valdez4
In 2023, the Supreme Court of Utah relied upon the holding in
In re Grand Jury Subpoena Duces Tecumin ruling on a Fifth Amendment challenge to a prosecutor’s mentioning that a defendant refused to give the police his cellphone password.
The State of Utah prosecuted Alfonso Valdez for aggravated assault, kidnapping, and robbery. The State alleged that Valdez had ordered his ex-girlfriend Jane into his car at gunpoint, then assaulted Jane while he drove and took her cellphone.
Valdez refused to give the police the password to his cellphone, and the police were unable to crack the password.
At trial, Valdez’s ex-wife testified that shortly before Valdez allegedly kidnapped Jane, Jane showed her texts between Jane and Valdez were “sexual of some nature” – texts that, in the ex-wife’s words, demonstrated some anger and “kind of a makeup kind of thing.”
Also at trial, Valdez’s attorney objected when the prosecutor attempted to ask a detective why the detective was unable to gain access to Valdez’s phone.
Defense counsel argued that allowing the detective to testify that Valdez had refused to provide the password to his cellphone would be a comment on Valdez’s refusal to incriminate himself, and thus violate the Fifth Amendment. The trial court overruled the objection.
During closing argument, the prosecutor argued that the testimony of Valdez’s ex-wife regarding the texts Jane had showed her wasn’t credible because the text messages weren’t part of the evidence.
After the jury convicted Valdez, he appealed. The Utah Court of Appeals reversed the trial court, and the State appealed.
Citing
In re Grand Jury Subpoena Duces Tecum, the Supreme Court of Utah unanimously ruled that giving a cellphone password to the police was testimonial for purposes of the Fifth Amendment.
The Utah Supreme Court agreed with the State that a cellphone password functions much like a key in a lock. However, Justice Paige Petersen reasoned, that a person giving up his or her cellphone password is an oral statement that conveys information, rather than a physical act.
“Here, Valdez was asked to verbally communicate his passcode to police – a traditional testimonial statement,” Petersen wrote. “So, while speaking a passcode and turning over an unlocked phone may be equivalent in many respects, they are not the same for Fifth Amendment purposes.”
Justice Petersen then cited
Hubbell to conclude that the government had no independent knowledge of the contents of Valdez’s cellphone such that requiring him to provide those contents by giving up his password didn’t violate the Fifth Amendment’s self-incrimination clause.
The Supreme Court also held that the State violated Valdez’s Fifth Amendment right against self-incrimination by commenting on his refusal to give the police his cellphone password.
The State argued that that comment was permissible as a fair response to Valdez’s argument, advanced through the testimony of his ex-wife, that the encounter between him and Jane was consensual.
But Petersen pointed out that it was the state that first mentioned the text messages between Valdez and Jane. She also concluded that the State’s argument that the detective’s testimony was a “mere mention” rather than an attempt to wield Valdez’s silence against him.
“The State did not argue to the district court that it needed to admit the testimony as a response to an issue that Valdez had raised,” Justice Petersen wrote.
“Rather, the State pointed out that the detective had a warrant to search the phone, and it argued that ‘[t]he jury ha[d] a right to know when the officers were unable to access the phone when there could have been evidence very pertinent to the case.”
Endnotes
1 248 N.Y. 339, 162 N.E. 99 (1928).
2 82 F.4th 614 (8th Circ. 2023).
3 670 F3d. 1335 (11th Cir. 2011).
4 2023 UT 26 (Dec. 14, 2023).
