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Notable Passcode Case: Applicable to DUIIs?

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by: Ryan Scott • September 5, 2017 • no comments

From fourthamendment.com: CAAF: It violated Miranda to order soldier provide password to unlock properly seized cell phone

The website described the holding as follows: "It violated a Mirandized suspect’s Fifth Amendment rights to direct him to enter the passcode into a properly seized cell phone to unlock it for a search."

I haven't read the opinion yet, but the following is either explicit or easily inferred: (1) in-custody defendant, (2) gov't has lawful right to search cell phone, (3) providing the passcode is testimonial and (4) defendant had asked for a lawyer.

This puts me in mind of the recent Banks case. In that case, the Oregon Court of Appeals held that the refusal to take a breath test was testimonial evidence. However, it did not find a constitutional violation in using his refusal against him.

I wonder if Banks would have turned out differently if Mr. Banks had asked for a lawyer. (Or not been Mirandized.) In such a situation, you'd have (1) an in-custody defendant, (2) government has lawful right to obtain a breath sample, (3) refusing to provide a breath sample is testimonial, and (4) defendant had asked for a lawyer.

I'd love for a DUII attorney to weigh in on that situation.