D.Me.: Getting def to reveal cell phone passcode was 5A claim, not a 4A claim

Defendant’s cell phone was seized with a warrant. Defendant was questioned and he lawyered up, but the officer ignored it and kept asking questions. Finally, defendant gave up the passcode for the phone. This is a Fifth Amendment issue, not a Fourth Amendment issue overbreadth issue. United States v. Billings, 2018 U.S. Dist. LEXIS 891 (D. Me. Jan. 3, 2018):

Finally, Mr. Billings argues that the passcodes should be suppressed because the warrant did not specifically authorize the seizure of the passcodes. Def.’s Mot. to Suppress 5. Search warrants of course must articulate the items to be seized. United States v. Upham, 168 F.3d 532, 536 (1st Cir. 1999). The Government responds that Det. Stepnick did not seize the passcodes under the authority of the warrant, that his asking for them did not somehow circumscribe the warrant, and that the request for the passcodes is governed by the Fifth Amendment. Gov’t’s Opp’n 5 (ECF No. 39).

Either the passcodes are things that can be seized under a warrant if specified or they are communications, the voluntariness of which may be disputed. The passcodes here were known in Mr. Billings’s mind and were entered and stated by Mr. Billings. Accordingly, I agree with the Government that their admissibility is governed by the defendant’s right to protection from self-incrimination and due process and not by the Fourth Amendment warrant requirements.

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