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Suppose a police officer has probable cause to arrest me based on evidence in plain sight. He wants to initiate a search pursuant to arrest.

Before the officer can detain me, I put the (alleged) evidence in a place where it is accessible, but if accessed incorrectly the evidence is permanently destroyed (or rendered useless to a prosecution, etc.)

The officer asks me to produce the evidence, and I refuse. Consider several scenarios:

  1. Do I have grounds to refuse to produce it because it would be incriminating; I am under no obligation to incriminate myself?

  2. The officer, perhaps not knowing the risk involved, attempts to retrieve the evidence and fails, causing the evidence to be destroyed. If the officer can show that I knowingly put the (alleged) evidence in such a situation and allowed him to destroy it, what might the repercussions be after the fact?

  3. The officer, perhaps understanding the risk, goes to a court and asks them to compel my cooperation. Could this happen and, if so, how?

  4. Suppose I intend to cooperate but accidentally cause the evidence to be destroyed. What might the repercussions be for me, and who would bear the burden of proof?

  5. Suppose the device has another function which produces some other items which are not incriminating. Suppose the officer retrieves these instead of the real evidence. Am I under any obligation to tell the officer whether those are the only items to be found, if I am hiding other items, etc.?

  6. Can the mere possession of such a device be used by the prosecution to show criminal intent (e.g., a crowbar, flashlight and ski mask in my trunk)?

Patrick87
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  • Don't tease us: give us at least an example of how one might booby-trap evidence, especially once the police are on approach! Because I've only heard this going the other way: E.g., "We're going to destroy your safe by cutting it apart instead of using the combination you provided or letting you open it because you might have booby-trapped it!" – feetwet Sep 24 '15 at 17:57
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    @feetwet A computer with an encrypted hard drive and a program I wrote that will overwrite whatever disk sectors are necessary with random garbage, or some pictures of kittens, if the wrong password is entered on the screensaver. Or maybe I gave a parcel to a carrier pigeon rigged with explosives with orders to fly in a random direction and return only if the right button is pressed on my controller. Press the wrong button and - kaboom! The pigeon slips out the window right before the officer can effect an arrest of the bird. – Patrick87 Sep 24 '15 at 18:56
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    Related: http://law.stackexchange.com/questions/1523/can-a-us-citizen-be-required-to-provide-the-authentication-key-for-encrypted-dat – feetwet Sep 24 '15 at 19:15
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    Also, so long as you can get 20 years in prison for clearing your browser history, you can probably be prosecuted just for thinking about this ;) – feetwet Sep 24 '15 at 19:19
  • it's so nice to know that there's a lot of people that loves to theorize the law like I do. Regardless of how fantasy this is, it's pretty cool. – Marco Aurélio Deleu Nov 16 '15 at 17:18
  • Hmmm. A voice activated thermite pile can set this situation up even if the police followed procedure. – Joshua Nov 25 '15 at 03:53

1 Answers1

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Suppose a police officer has probable cause to arrest me, based on evidence in plain sight. He wants to initiate a search pursuant to arrest.

Before the officer can detain me, I put the (alleged) evidence in a place where it is accessible, but if accessed incorrectly the evidence is permanently destroyed (or rendered useless to a prosecution, etc.)

This wouldn't happen. The moment you are placed under arrest you are handcuffed and detained. Not only for officer safety, but also for that very reason (so you cannot destroy or secret away evidence).

The officer asks me to produce the evidence, and I refuse. Consider several scenarios:

  1. Do I have grounds to refuse to produce it because it would be incriminating; I am under no obligation to incriminate myself?

No. If the officer is searching you pursuant to arrest (and under your scenario he need not get a warrant as there is evidence in plain view, although he could begin cursory search and have a warrant executed and brought over within an hour, just to be safe). Regardless, you are not consulted as to whether it's OK or not, hence no right to refuse. Further, your 5th amendment right against self incrimination gives you the right not to answer, but you can expect your dwelling to be completely destroyed if they know there is evidence there. Since we are supposing: suppose you actually did get away from the police, before they cuffed you, and were able to get to evidence before being searched and without getting shot (unlikely). They would tear your place apart and would find it.

  1. The officer, perhaps not knowing the risk involved, attempts to retrieve the evidence and fails, causing the evidence to be destroyed. If the officer can show that I knowingly put the (alleged) evidence in such a situation and allowed him to destroy it, what might the repercussions be after the fact?

You would be charged with destruction of evidence, on top of whatever you were originally arrested for that they saw in plain view. Further, forensics would almost certainly find some trace of what you were hiding. This scenario is highly unlikely.

  1. The officer, perhaps understanding the risk, goes to a court and asks them to compel my cooperation. Could this happen and, if so, how?

The officer, if he knew it, would just find a way to get at it that wouldn't allow for its destruction. They can literally take out pieces of walls, pipes, whatever. They have the resources to get to anything. If the search would become unreasonable lest the Court knew of your dastardly plan, they would just expand the scope of the search via the warrant.

  1. Suppose I intend to cooperate but accidentally cause the evidence to be destroyed. What might the repercussions be for me, and who would bear the burden of proof?

Same result. You hid it. You destroyed it. You decided to potentially destroy it when you put it in that place, so the outcome is not different.

  1. Suppose the device has another function which produces some other items which are not incriminating. Suppose the officer retrieves these instead of the real evidence. Am I under any obligation to tell the officer whether those are the only items to be found, if I am hiding other items, etc.?

Your only obligation if you're being searched is to be quiet! You have no obligation to help, nor should you help, with the search of your property. But this is not something out of James Bond or Batman. What? Your secret device turns cocaine into sugar? Seriously, this wouldn't happen. If the police thought evidence to be in a place, they wouldn't stop looking because they found something innocuous. They would take whatever it's in apart revealing all its contents.

  1. Can the mere possession of such a device be used by the prosecution to show criminal intent (e.g., a crowbar, flashlight and ski mask in my trunk)?

What device? Now I'm really confused. If you are being searched on suspicion of burglary or robbery for example, the tools a burglar would use or if the robber wore a mask are all viable as potential evidence and would all be seized as such.

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gracey209
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    A piece of software would be very easy to design to do all of the above tasks. So could you rephrase your answer actually assuming what OP is asking and not assuming it is impossible? – Sam Sep 24 '15 at 18:11
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    Sam is correct - if the items are, say, child pornography, and the officer sees the items through, say, my bedroom window, I could quickly engage a computer program that would do anything upon entry of an incorrect password, including wiping the contents, showing false contents, or both. There was a reason I used "suppose" so much in my original version; it's possible you might even be able to make a physical version (like with several linked pressurized safes containing several thermite grenades rigged to explode if the wrong one is opened). "Computers" and/or "software" are the device. – Patrick87 Sep 24 '15 at 18:52
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    Well software wouldn't be a way to hide actual physical evidence pursuant to a search that arose from a plain view arrest. You wouldn't see evidence that software could destroy the remainder of. If the police are searching a computer, they don't start opening files at the scene, they use forensic expert computer analysts to identify self destroy files before rooting around, just for that very reason. Plus, he's clearly not talking about a pre-existing software where digital evidence is stored, as he posits getting away to hide the evidence. – gracey209 Sep 24 '15 at 18:58
  • @Patrick87, my comment to Sam applies to your scenario, too. Further, in your scenario (which is different that the one posed,) the police cannot go and peer through your windows without a warrant. The courts have said that they can come to your door without a warrant, but that's it. They can't leave step to peer into a window, even if only a few feet away and at eye level.That would be considered a warrantless search. In this age of digital crime, the police have very sophisticated forensic analysts and protocols for handling evidence. They've even recruited people caught hacking as analysts. – gracey209 Sep 24 '15 at 20:39
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    You say "they don't start opening files at the scene, they use forensic expert computer analysts to identify self destroy files before rooting around" that matters little, you can still create a cryptographic system that is destructive if used in the wrong way. "the police cannot go and peer through your windows without a warrant" yes they can, if they are on public property they are allowed to look in your windows, but even if they weren't you are just making excuses. you should assume OP's conditions are possible and re-answer. – Sam Sep 24 '15 at 22:37
  • @Sam - I don't believe that is correct. IT forensics pull all drives and static memory and put them in a duplicator, then work on the copies. The only possible countermeasure would have to be hardware based, and you'd have to be doubly crafty to pull that off: both to rig it to begin with, and then to keep the forensic guys from inspecting the hardware for the presence of any such modification before they go to pull and copy the memory devices. – feetwet Sep 27 '15 at 21:51
  • @feetwet please stop making excuses the original question is possible, it would be fairly easy to design software that will destroy the data if the drive is powered on for more than x seconds without a password. – Sam Sep 27 '15 at 21:59
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    @feetwet, if you didn't guess, I agree w/you. I have been at a search or two in my day. The police don't power on and look thru files, not because they are scared there is a "destructive cryptographic system", more-so because their SOP is to take the computer, unplug it, and bring it in for their forensic analysts to examine. While it may be possible in the ethosphere...it's highly unlikely. – gracey209 Sep 27 '15 at 22:16
  • @Sam, the way you right your question, they see you with something in plain view, you then go and hide it in some way that it self destructs. In your hypo, whats the point of the plain view arrest if you've planned on the eventual arrest to the extent that you had all this time to create this self-destruct sequence. And from what are we supposed to glean this is a case of electronic evidence? Further, if it is a case of electronic evidence...what was in plain view? You probably could write a hypo that would make a feasible scenario where this could occur, but this is not it. – gracey209 Sep 27 '15 at 22:30
  • Sounds like the answer comes down to: You would never be compelled, but if you managed to destroy the evidence or even indirectly cause its destruction you would be charged with destruction of evidence. Some related questions to the contents of this answer: http://law.stackexchange.com/questions/134/are-there-any-remedies-for-abusive-or-insulting-behavior-by-agents-executing-a-s and http://law.stackexchange.com/questions/3513/does-handing-keys-to-police-under-duress-constitute-consent-to-search – feetwet Sep 27 '15 at 23:44
  • ya, at a minimum – gracey209 Sep 27 '15 at 23:45
  • @Sam: Take a screwdriver, remove the drive. Physically disable its write mechanism. Put it into another computer. How is that software going to destroy the drive? – gnasher729 Nov 16 '15 at 19:36
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    @gnasher729, the read and write mechanism are the same thing, and you are still ignoring the spirit of the question on very marginal technical grounds. – Sam Nov 16 '15 at 19:48
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    @gnasher729: I designed a hard drive where if you did this it would surely destroy itself and the computer you plugged it into. – Joshua Aug 28 '17 at 19:58
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    Instead of the data actively being destroyed, the data could be encrypted with a temporary key only in memory that is only saved if a password is entered on shutdown. A sudden power-off would effectively destroy the data. In this case the default result is for data to be lost. Would the suspect have an active duty to enter the password on shutdown to sustain the evidence? – Reinstate Monica Sep 06 '17 at 19:24