Revealing Password was “Testimonial” and “Incriminating”

This post is about a recent federal case in which a U.S. Magistrate Judge considered whether an individual’s reciting his laptop password in response to a question from federal agents was “incriminating testimony” obtained in violation of Miranda.

The case is U.S. v. Rogozin, 2010 WL 4628520 (U.S. District Court for the Western District of New York 2010), and this is how it arose:

Officer Janiszeski encountered [Alexai Rogozin] entering the United States at the Lewiston, New York port of entry on the morning of August 30, 2009. [Rogozin] was alone in his vehicle. He asked [Rogozin]'s citizenship, and [Rogozin] did not respond right away, possibly due to language barriers. [Rogozin] eventually said he was a citizen of Germany, produced a lawful U.S. permanent resident card, and said he resided in Brooklyn. . . . [He said] he had visited Niagara Falls, Canada overnight as a tourist, and was not bringing anything back. . . .

Janiszeski noted [Rogozin]'s responses were hesitant, and he did not maintain eye contact. Due to the lack of details in [his] answers, his lack of eye contact, and the short length of his stay in Canada, which appeared curious, given that [Rogozin] had come all the way from Brooklyn, Janiszeski referred [Rogozin] to a secondary inspection. . . .

Officer LaRosa conducted the secondary inspection of [Rogozin]'s vehicle after he was escorted into the main building. . . . He conducted a `seven-point inspection’ of the vehicle as well as its contents. He looked at a digital camera and noticed it contained photos of small children in sexually suggestive positions. He viewed another camera, a laptop computer and a cell phone, all of which had similar photos. . . .

He also viewed the video camera, which had similar images. He did not see anything which would constitute child pornography on the camera or the video camera. The children in the photos . . . were in sexually suggestive positions, but not naked.

He contacted his supervisor (Daniel Pelczynski), who . . . authorized a patdown of [Rogozin], and contacted ICE. [Rogozin] underwent a full body patdown after he had been placed in a cell and removed his belt, shoes, and emptied his pocket. [He] was not free to leave. He was not given Miranda warnings. . . . [H]e was . . . suspected of criminal activity.

When ICE agents Meyer and Braisted arrived, LaRosa told them about the images he found, and turned the electronic devices over to them. Meyer and Braisted reviewed photos on [Rogozin]’s laptop before questioning him. . . . They began to interview [Rogozin] in the holding cell, then took him to an office where they continued the interview with the assistance of an interpreter by speakerphone.

Meyer stated that the purpose of the interview was to establish [Rogozin]'s admissibility into the United States, and to prevent the entry of contraband such as child pornography.

They asked whether he had seen child pornography on the computer and who had access to [it]. He [said] he owned the computer, no one else had access, and he had seen child pornography on it. They also asked him whether there was a password. He told them the password. . . .

U.S. v. Rogozin, supra. The laptop was forensically examined at the ICE office on September 3; the examination revealed photos of child pornography, which led the agents to get a search warrant for the laptop. U.S. v. Rogozin, supra. When they searched it pursuant to the warrant, they found “approximately 185 images of child pornography” on the laptop. U.S. v. Rogozin, supra.

Following that search, Rogozin was arrested at his home in Brooklyn and later indicted for possessing and transporting child pornography. U.S. v. Rogozin, supra. He filed a motion to suppress the physical evidence seized and examined by the agents and his statement about the password for the laptop. U.S. v. Rogozin, supra.

There seem to have been some uncertainty about the password. According to the opinion. Rogozin and his lawyer both “submitted affidavits suggesting” that the laptop couldn’t be accessed without a password (I’m assuming the affidavits supported the motion to suppress). U.S. v. Rogozin, supra. Officer LaRosa, however, said that when he examined the laptop he was able to see what was on it without using a password; the opinion notes that he either turned the laptop on “or it was already on”. U.S. v. Rogozin, supra. If it was on, that might explain the confusion.

Rogozin’s motion to suppress didn’t, though, focus on the password as the means of gaining access to the computer. Rogozin argued that the statement in which he gave ICE Agents Meyer and Braisted the password to the laptop should be suppressed because he wasn’t Mirandized prior to making the statement. U.S. v. Rogozin, supra.

The government argued that there was no need to suppress the statement about the password “for lack of Miranda warnings,” because “such warnings `are not required where a person is questioned in a routine border crossing inquiry’.” U.S. v. Rogozin, supra (quoting the prosecution’s memorandum opposing the motion to suppress). In ruling on this argument, the U.S. Magistrate Judge noted that Miranda warnings

are required `in border interrogations when the questioning of the official becomes an interrogation that is custodial in nature and is one in which information is sought for the purpose of using it against a person in a criminal proceeding.’ U.S. v. Silva, 715 F.2d 43 (U.S. Court of Appeals for the 2d Circuit 1083). For example, in U.S. v. Moody, 649 F.2d 124 (U.S. Court of Appeals for the 2d Circuit 1981), the defendant was pulled out of an arriving passenger line at an airport, taken to a separate room and given a patdown search which revealed a plastic bag containing a powdery substance. `When asked what the substance was in the plastic bag, appellant's response, "it is heroin" was elicited for the purpose of incriminating her. This conclusion would seem to flow from Officer Hanson's initial suspicions which led to further questioning and a patdown. It would thus appear that appellant's Miranda rights were violated and her statement inadmissible.’ [U.S. v. Moody, supra.]

U.S. v. Rogozin, supra (emphasis in the original). The Magistrate Judge then noted that

by the time [Rogozin] was questioned by Meyer and Braisted, this was no longer a `routine border inquiry’. By that time, they had spent a considerable length of time examining the photos on his laptop, and he `was a suspect of criminal activity’. . . . He had been placed in a cell and had his belt and shoes removed, and was given a patdown search.

U.S. v. Rogozin, supra. The Magistrate Judge also noted that although the

government claims [Rogozin] was asked about the computer password `to help establish [his] ownership of the computer’, that questioning `was unnecessary’, since he had by then already told the agents that he was the owner. Under the circumstances, it appears that the questioning as to who had access to the computer and whether he had seen images of child pornography on the computer `was elicited for the purpose of incriminating’ defendant, as in Moody. . . .

U.S. v. Rogozin, supra.

Finally, the Magistrate Judge found that Rogozin’s “statement as to the password was testimonial in nature), citing U.S. v. Kirschner, 2010 WL 1257355 (U.S. District Court for the District of Michigan 2010). As I noted in an earlier post, the Kirschner court found that requiring that defendant to give up his computer password “communicates that factual assertion to the government, and thus, is testimonial – it requires Defendant to communicate ‘knowledge,’ unlike the production of a handwriting sample or a voice exemplar.” This Magistrate Judge quoted that comment from the Kirschner decision and then recommended that Rogozin’s statement about the password be suppressed. U.S. v. Rogozin, supra.

As I may have noted before, U.S. Magistrate Judges are, as Wikipedia notes, “appointed to assist United State district court judges in the performance of their duties.” The Wikipedia entry on U.S. Magistrate Judges explain how they differ, in terms of legal authority and Constitutional status, from U.S. District Court judges. It also notes that in criminal cases, the decisions of a Magistrate Judge “are subject to review and either approval, modification or reversal” by a U.S. District Court judge who sits in that federal judicial district.

This decision, then, is a recommendation to a U.S. District Court judge. It will be interesting to see if the District Court judge agrees with the magistrate, and suppresses the statement about the password, or decides that the statement doesn’t need to be suppressed. If I see the District Court judge’s decision, I’ll update this post.