Search Warrant Question

Factual Questions
1

Asking this for a friend…

Case 1: I stole a million dollars worth of diamonds from a jewelry store, and hid them in my house. Unfortunately, I dropped my wallet during the heist, and the coppers came to my house and served me with a search warrant. I lie and deny that I robbed the store, and I say that I had realized that my wallet was missing earlier that day, and had assumed I just misplaced it, but I now assume that my pocket was picked in order to frame me. I have to allow them to search, but I don’t have to aid them, or tell them where I hid the diamonds, right? And if they can’t find the diamonds, and can’t come up with any other evidence against me, they can’t charge me with any kind of obstruction, right?

Case 2: I encrypted one of my hard drives, using a password consisting of 32 random characters. It’s too long and random to memorize, so I wrote it down, and I keep it hidden in my house, removing it from its hiding place only long enough to decrypt my drive when I need something on that drive.

The cops learn by analyzing network traffic that I have been actively using Pirate Bay to download torrents. They come to my house, serve a warrant, and seize my computer. I tell them that I encrypted one of the drives but did not memorize the password, which was written on water-soluble paper, and that when I heard them at the door, I flushed the password down the toilet, because I assumed they were here about a few movies that I illegally downloaded, but I didn’t want my wife to know that I was looking at raunchy but legal porn, and she has friends at the police station. I of course allow them to search the house, but they don’t find the hidden paper containing the password.

What’s the worst that could happen?

2

Martha Stewart went to jail for lying to federal investigators. It doesn’t get charged that often, to my knowledge, but the possibility exists.

Whether a state or locality would have its own law specifically prohibiting lying to investigators will vary from place to place.

3

I know that lying to the Feds is a crime, but the only way they could know I’m lying is if they found the loot/password, and then they would have enough evidence for more serious charges. So in this context, lying doesn’t seem to have much of a downside.

ETA: but it would be wrong.

4

You don’t have to lie. Just ask for an attorney and shut up.

5

My attorney has advised me as a blanket rule to never answer any real questions without his presence. I agree with him.

If the police have a search warrant, you’re a suspect and you’re being questioned about a crime. Not “lawyering up” would be foolish, IMHO. All you have to say is that on your attorney’s advice you would like to have him present before answering any questions.

There’s lots of case law about passwords and I believe it is an ever changing landscape, so I’ll defer to the real eagles.

6

I believe that computer forensic experts would be able to circumvent your password and find the files anyway. Isn’t this what happens in a lot of crime cases?

7

I’m aware that that is almost always excellent advice. However, in Case 2 of the OP, it seems to me that it would be important to establish that I had flushed the password before I knew that they wanted it (i.e., before I had even answered the door). They could make a much better case that I knowingly destroyed evidence if I immediately lawyered up, and some time later claimed that I no longer had the password.

8

If you don’t talk, they would need to find out you destroyed evidence let alone when you did it. Why give them any information?

9

Because they would be able to prove from network records that I used my PC every day, and it would be very easy to persuade a jury that I knew the passwords for that PC. From what I’ve read, it is not a settled question that I am allowed to withhold those passwords, but it seems to me that a claim that I used passwords impossible to memorize might constitute reasonable doubt, provided I established that I had destroyed the passwords, “just in case,” before I knew for a fact that the cops wanted them. I could not establish that if I refused to talk to the police before I was charged.

10

On TV, yes. In real life, a 20-character password with a program like TrueCrypt would be safe against anything short of a dedicated effort from the NSA, and I doubt that I’m important enough for that.

11

The bloggers at Popehat, mostly Ken White, have written many many posts on this general topic.

Their advice is invariably and emphatically: JUST SHUT THE FUCK UP.

A great many people have gone to jail for lying, even for the most trivial and petty lies, even when the police (and in particular, FBI or other Federal investigators) are unable to nail you on anything else. That’s how they got Martha Stewart. That’s how they got Blagojevich.

When investigators get on a case and you’re a suspect, they won’t even come talk to you until after they have gathered as much information as they can from other witnesses or other evidence. When they finally come to ask you some questions, they will already know the answers to many of the questions they ask. They will ask you those questions anyway, just to catch you lying. If you lie, you’re caught out.

So don’t answer any questions at all. As the lawyers at Popehat put it, JUST SHUT THE FUCK UP.

Compendium of Popehat articles dealing with the subject: STFU

12

How are you going to “prove” that the password wasn’t / couldn’t be memorised?

Why should they believe you if you say it was written down and isn’t here anymore as opposed to having it never written down?

Wouldn’t it be safer to encrpyt a secondary drive rather than the computer itself? If they can’t get into the secondary drive, what can they prove?

13

When disgraced Canadian killer Colonel Russell Williams was busted the Ontario Provincial Police said that his computers were being sent to Microsoft in California for forensic analysis. I doubt there’s any reason to believe that Microsoft couldn’t find anything and everything on his computers.

14

I’ve searched, but I can’t find any detail on whether or not his drives were encrypted. I’ve seen a passing mention that seems to indicate that maybe he’d deleted files (that’s the sort of thing I’d expect Microsoft to be able to recover), and I’ve seen a reference to his incriminating files being buried in a mass of folders and sub-folders to hide them from his wife, but nothing about encryption.

15

Iirc IANAL simply destroying evidence when you know it could be relevant in a criminal investigation is a crime - there’s no need for a warrant or police request. The trailer to your question demonstrates why DAs have it so easy. By mistakenly trying to timeline your flush and seem clever, you provide them with an admission of destruction of evidence.

The first scenario - same. You are a suspect. You cannot clever-talk your way out of that. All you can do is give them ammunition to go on with. The best you can do is - “you cops bust into my home with a warrant, why should I do your job. You’ll twist whatever I say. I’m talking to my lawyer before I say anything…” Every piece of alibi you feed them is something to be analyzed of torn apart. If you tell them you lost your wallet before lunch, they will find the restaurant where you pulled out your wallet to use a credit card to pay for lunch.

The law on passwords is up in the air. The Supreme Court has a knack for avoiding pithy questions so we have lower court decisions.

Some guy returned to the USA from Canada; customs asked him to turn on his laptop, saw kiddie porn and arrested him. Then, they could not get back into his laptop. The court ordered him to produce the password. The key here was some contents were KNOWN. The court can subpoena you to produce specific items it knows you have - I.e. His porn. Deliberately failing to deliver is contempt.

In another case, a woman had an encrypted drive with documentation of her financial crimes. She was cleverly taped phoning her husband saying the details were on the encrypted drive. The specific items were not known, just that the drive was “of interest”. She spent time in jail, but eventually her husband helped the cops guess the password (haven’t heard what they did to make him cooperate, but guess…) they were never able to crack the true crypt.

There’s a guy who supposedly had been in jail over a decade because he continually refused to tell the court where he hid money from his ex wife…

The issue with being ordered to reveal a password goes to the heart of the fifth. To reveal the contents of your mind is to testify against yourself, which “cannot be compelled”. However, you cannot refuse to provide specific items definitely of relevance to your crime that it Knows you have. I.e. Chequebook or bank statements. But for fishing expeditions, the court can’t order broad generic requests, “your personal documents” for example. They can’t (shouldn’t) be able to order you to decrypt something because they think it’s a likely hiding place.

But yes, keep your mouth shut. If you’re already a suspect, anything they learn will be more ammunition.

16

I understand, but you asked for the worst case. You could go to jail.

17

Again why make it easy on the cops? How do they know it isn’t written down and that they need to search for it? Oh that’s right, you told them. Add to this that you want a jury to believe you purposely destroyed the only copy of an unmemorizable password but you didn’t know at the time it could have been evidence against you? Even if it was legal (and it may not be) I guaranty I wouldn’t believe anything you say.

18

If you don’t do what the court orders…

So if you want to not say your password and wait until your appeals reach the Supreme Court - or more likely, they decline to hear - then you can spend several years in jail for contempt. OTOH, if spilling the beans on your password is a guarantee of even worse jail time, maybe not saying anything is the better alternative.

From what I recall, TrueCrypt does not produce a signature on the file - i.e. there may be a honkin’ big file, but there’s no way to prove it belongs to TrueCrypt other than by opening it with the correct password. Deniability like this was built in so people using it to hide information from the secret police could deny that was encrypted data… although, duh, if Truecrypt is installed, what are you using it for?

19

“I installed it but never got around to setting anything up.”

20

Correct. It would be relatively easy to prove beyond reasonable doubt that a drive is encrypted. Since neither TrueCrypt nor VeraCrypt works with UEFI boot drives, it would even be possible to find the names, and possibly fragments of content, of files I’ve accessed on the encrypted drives, by looking at boot drive’s swap files or whatever.

So if I deny that I have an encrypted drive, they can prove I lied. If I clam up completely, I’m risking rotting in jail on a contempt charge, since they will assume that I know the password for the drive. Bottom line, I haven’t seen anything here that convinces me that lying about flushing the password isn’t the best option. It might have been a reasonable assumption that they wanted it, but I didn’t KNOW that; for all I knew, the reason the cops were at my door was to ask if I’d seen any suspicious activity at my neighbor’s house, and for all they knew, I flushed the password just on the off chance they might be after me for my two pirated Taylor Swift songs, because I was embarrassed about the perfectly legal porn on my drive. And although they theoretically could charge me with destruction of evidence anyway, that seems like a lot of trouble for little gain.

And of course, if it turns out that they DO consider it worthwhile to do whatever they can to put me in jail for as long as possible, because they think I’m trafficking in child porn or sending national secrets to ISIS or something, once it becomes clear that they aren’t bluffing, I can always produce the password and show them that the worst thing on the disk is a bootleg copy of Jurassic World.