DISCLAIMERS: You are not my lawyer, I am not your client, not seeking legal advice, this is all hypothetical, blah blah blah.
Let’s say a police force within my jurisdiction (city, county, what have you) serves a search warrant on my apartment - they suspect I may be in possession of a Forbidden Plant. They tear the house apart and find nothing, except my safe. They ask me for the combination.
Does the 5th Amendment protect me in this case? If I refuse to give the combination, would I be held in Contempt of Court?
What role does the 4th Amendment play in this? Would a safe be considered fair game under the terms of the search warrant that authorized the search of my apartment?
Would they be within their rights to break out the arc welder and get into the safe through brute force?
If the safe opened with, say, my thumbprint rather than a conversation, would they be within their rights to manhandle my thumb onto the print reader to get it to open?
IANAL, but I believe it depends on the terms of the warrant. If the safe is included and you won’t open it for them, they will call a locksmith. They won’t manhandle you to get your thumb on the scanner.
Let’s make this more interesting and settle a question in the back of my brain. Assume that the warrant is for a Forbidden Plant and when they break (or you allow them in) the safe, they find no vegetable matter but a gun with three bodies on it. How can they make it evidence? Stand around and wait for a new warrant including/naming “any contents”?
IANAL, but anything found during a legitimate search is valid evidence. the rule is something like this - if the warrant says “guns”, they cannot rifle through your papers in the file folders and use that to charge you with fraud, since there is no logical reason to look at a thin folder of papers while looking for a gun. But if they are looking for baggies of substances and find a gun during that search, well, sucks to be you.
The only other exception is “plain sight”. If all they had to do was notice it (your fraudulent documents or your baggies were lying open on the kitchen table while they were searching for guns) then it’s valid evidence and they can charge you. Or, if during the search they see something suspicious like the blood trail leading up to the safe, they can legitimately search the safe.
This is the big debate about being forced to disclose passwords. If it’s physical a safe and you decline to open it, there are physical means to get around that. If it’s encryption and you do not provide the password, some programs would take the life of the universe to crack. Is providing a password “incriminating yourself”? Some courts have held that once the contents are established you must provide them. (i.e. they saw some of it before you shut down the computer, or they wiretapped you bragging “all the documents you want are on that encrypted disk”.) If the police are not sure what’s in there, then it’s essentially a fishing expedition, the police want you to provide something they think you might have but aren’t sure - so that would be self-incrimination. it’s an issue waiting for a Supreme Court decision.
If the search warrant is worded to be reasonable that the safe could contain the evidence they are searching for, then yes, if need be, they can in fact break the safe. If they then do not find said plant matter, but do find a gun and there is some reason to think that there are bodies on the gun, they will then protect the evidence while getting another search warrant.
If they have probable cause, it’s all good.
Where this goes bad is if they are searching for a stolen car and look into a drawer; that isn’t reasonable.
Finding a gun does not require another search warrant unless the police want to conduct an additional search - for example, if now that they have found a gun in your apartment, they also want to search your car. If all they want to do is seize the gun and conduct tests to determine if the gun was used to fire bullets recovered at a crime scene, no additional warrant is needed.
So if I refuse to open the safe myself and warn them that there is a booby trap that will subject anyone who opens the safe incorrecty to a lethal dose of radiation, where do we then stand?
You end up labeled some flavor of domestic terrorist in possession of dangerous quantities of radioactive materials. At which point search warrants are the least of your problems.
The legal maxim regarding 4th Amendment limitations on a search warrant is the Sugar Bowl maxim. It is stated as, “if you are looking for stolen televisions, you cannot look in sugar bowls.”
A warrant should detail the places to be searched and the item(s) to be searched for. If the item(s) as described in the warrant could not possibly fit in your safe then you do not have to open it for officers presenting a warrant.
Of course assertion of your rights might lead the officers to attempt to gain another warrant specifying some rationale to search your safe.
I wonder how literally the Sugar Bowl maxim can be taken. Nowadays, you really could have a television that fit into a sugar bowl. It’d be humorous to see the court case if someone was accused of stealing such a device, and the police did look in the sugar bowl for it.
And on a more factual matter, I understand that police often make it a point to include items in a warrant which really could be hidden in a sugar bowl or filing cabinet. High-denomination money is one possibility for this. That way, even if they don’t find hundred-dollar bills, they have an excuse to search everywhere, and possibly find something else interesting.
There is an interesting sidebar to this. Drug smuggles bought the most expensive boats they could afford, and paid well to have hidden compartments built in that could only be detected by doing significant damage to the craft. The reason was, if the Coast Guard or DEA did not find any evidence, they were financially responsible for any damage to the boat, and the agents were unwilling to report to their superiors that they took apart a million dollar boat and didn’t find anything. So agents rarely searched boats that were merely suspicious, without a pretty solid tip by an informer.
I assume the same rules of search would apply to a dry-land property, and if they had to blow up your safe, and found nothing, they’d at least have to buy you a new safe.
IIRC, the rule is that you do NOT have to divulge the combination but then the police are free to hire a locksmith to damage your safe without compensation to you. However, if the safe opens with a key, you CAN be compelled to surrender the key. Failure to do so would be interfering with the search warrant. IANAL
I was listening to a discussion on NPR where they discussed the looming court battles over whether encryption codes on computers were more similar to a safe combination or more similar to a strong box key.
If they find anything incriminating, it really sucks to be you,
This falls under “duty to mitigate”, I think. If you could have prevented or lessened the damage by doing something, and you did not, knowing that more damage could be the result, it’s your problem. Sawing holes in a boat is not something you can get around, but opening a safe is a simple money-saving action you could have taken.
Mind you, hidden compartments (at least, in cars) is IIRC a felony in some states now. Wired had an article on some guy who made these - hegot indicted when some drug smuggler claimed he was part of the conspiracy in a plea deal. He said with current DWB rules, a lot of legitimate people want to hide things from general snooping. The feds offered him 30 years or turn snitch, in a place where the second choice usually got your family tortured to death.
