Comment by sfRattan
3 hours ago
> As far as federal overreach of power goes, that's pretty inexcusable.
Selectively detaining this guy, likely overreach.
Trying to get his phone's unlock code to go on a fishing expedition for whatever they can find, absolutely overreach.
But this guy catching felony charges for giving federal border police a duress PIN to wipe his phone when they asked for an unlock PIN? Not actually overreach.
You have the right to remain silent, not to lie to the police when detained (18 USC § 1001, and many state-level laws to the same effect also exist). Our justice system could not function if people had a right to lie to the police. Once you are detained, whether or not that detention is eventually determined to be lawful, destroying or disposing of your possessions to prevent police from accessing them is also generally a crime.
You fight abuses later, in court. Or, if you're going to use a duress PIN in the moment, you accept the legal consequences.
And yes, giving a duress PIN to wipe a phone when asked for an unlock PIN is a lie which may result in destruction of evidence. And no, the law does not care about "I'm not touching you"-level rationalizations of whether something is a lie or whether it was technically the police who entered the code to wipe the phone. Proximate cause is a longstanding legal concept.
> But this guy catching felony charges for giving federal border police a duress PIN to wipe his phone when they asked for an unlock PIN? Not actually overreach.
I think it's an interesting case that will get litigated in the courts. It seems they'll have to prove that the phone contained "evidence"; it could have just had embarrassing personal photos that he didn't want shared. When a house is raided and someone flushes a toilet, can courts assume they flushed drugs, or does that have to be proven?
I hope he's found not guilty, but either way this definitely is not the "sky is falling", "we're almost a police state" case that folks here are making it out to be. It's a very narrow and novel line.
> When a house is raided and someone flushes a toilet, can courts assume they flushed drugs, or does that have to be proven?
Game it out at the systems level. If the prosecution had to prove beyond the shadow of a doubt that what was destroyed would have been evidence, then destruction of evidence would be functionally permissible whenever done competently.
> ...either way this definitely is not the "sky is falling", "we're almost a police state" case that folks here are making it out to be. It's a very narrow and novel line.
Agreed. And activists should generally work with lawyers in order to be familiar with areas of the law they are likely to encounter in the course of their activism. Especially activists who travel internationally.
> then destruction of evidence would be functionally permissible whenever done competently.
Well yes, but ... is that not the case? Game out the opposite. If the prosection doesn't have to demonstrate that something was valid evidence beyond a shadow of doubt that's rife for all sorts of abuse.
In general I don't believe I can catch a (legitimate) felony for locking myself in the bathroom and flushing the toilet during a police raid.
1 reply →
I find it interesting that you can’t lie to the police but the police can (and do) lie to you. Why?
I'd generally agree that the police shouldn't be able to lie to a detained suspect, or at least that such deception should be more constrained than it is in the context but, in general, the law as practiced hinges on the question, "does police deception render a detained suspect's confession or statements involuntary?"
If yes, then those confessions or statements could become inadmissable (i.e. the suspect was effectively compelled to testify against himself, in violation of the 5th Amendment). When police combine deception with coercion or threats, the answer to that question leans toward yes, but it will depend on the juristiction and the judge and is often assessed on a case-by-case basis. Police in any given juristiction probably have a reasonably good sense (from their own accumulated experience and local training) of what kind of deception results in the produced evidence becoming inadmissable in the courts where the defendant will appear.
> And yes, giving a duress PIN to wipe a phone when asked for an unlock PIN is a lie which may result in destruction of evidence.
I was distressed and got confused and gave the wrong PIN. Anyway there was no evidence on the phone just a few embarrassing photos.
Also I just so happened to catch a bad case of indigestion right as the police knocked down my door. There were absolutely no drugs in the toilet when I flushed it.
To me the far more concerning fact is that this is getting any pushback at all. The response described is what everyone ought to do without exception when asked for their PIN by law enforcement. The right not to be forced to provide access to your own devices needs to be staunchly defended. These devices serve as extensions of ourselves at this point.
> I was distressed and got confused and gave the wrong PIN. Anyway there was no evidence on the phone just a few embarrassing photos.
> Also I just so happened to catch a bad case of indigestion right as the police knocked down my door. There were absolutely no drugs in the toilet when I flushed it.
To repeat, for emphasis: the law does not care about "I'm not touching you"-level rationalizations.
> The response described is what everyone ought to do without exception when asked for their PIN by law enforcement. The right not to be forced to provide access to your own devices needs to be staunchly defended.
If by "response described" you mean "remain silent," then absolutely. Not 100% clear from your last paragraph.
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