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Old 07-16-11, 06:39 AM   #3
Platapus
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A very interesting case indeed.

I don't think the government's case will pass judicial review. There are precedents concerning locked containers that I feel would apply.

If the police have a search warrant and need to get in to a locked container, they can ask you for the key/combination. If you refuse, the police can use other methods of gaining access to the container at the risk of destroying the container and at the risk of destroying the evidence in the container. The owner of the container has never been compelled to provide the key or combination. If the police find the key, either in your house or on your person, they can use that.

But a search warrant is not an interrogation order, but an order to passively allow police to enter, search, and seize items. The term passive is the key. If the police serve you with a search warrant and then ask you "please tell us where the drugs are hidden", you are not compelled to answer. That would be a violation of the 5th amendment.

Why would a laptop computer be any different? Under precedent, the police can seize a computer and use what ever method they can to gain access to and retrieve the data. This may include destructively disassembling the computer and using any method they have of directly accessing the hard drive.

But the key is that it is the police that is taking the actions, not the citizen.

I am not sure this is so much a 5th amendment issue as a 4th amendment issue. But in any case, I don't think this will pass judicial review.
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