It’s usually the climax of the Law and Order episode—the suspect is being taken into custody while the protagonist detective reads them their rights. Most of us can recite it by heart:
“You have the right to remain silent. Anything that you say or do can be used against you. You have the right to an attorney. If you cannot afford one, one will be provided to you. Do you understand these rights as I have read them to you?”
Those five short sentences from what’s known as the Miranda warning, which dates back to a Supreme Court case from 1966. The idea behind them: provide someone being arrested with 1) the knowledge that they are not compelled to self-incriminate, and that 2) they have a right to an attorney.
The court case which gave birth to the Miranda warning was known as Miranda v. Arizona—Ernesto Miranda, suspected of kidnapping and rape, confessed to the crime before he had spoken with a lawyer and without full knowledge of his right not to self-incriminate. Because of what the Supreme Court decided in a 5-4 decision, all US police officers must recite a version of the Miranda warning while taking someone into custody.
Fifty years have passed since the case, and in that half century, much has changed. As regards to Miranda rights, many of us now carry smartphones in our pockets—a cache of personal data which could be of great interest to law enforcement. It was only recently—2014—that law enforcement officials were instructed not to search people’s phones during an arrest if they didn’t carry a warrant to do so.
Should we update the Miranda warning?
When the Miranda case went to trial, the Supreme Court didn’t imagine what the future might hold in terms of rights during arrest. And the living law shifts to reflect changes in society—including technological advancements.
What would a “digital Miranda” look like?
Ars Technica put forward their version, designed to reflect the current state of American society and custodial laws.
“You have the right to remain silent. This right includes declining to provide information that does not require speaking, such as entering a passcode to unlock a digital device, like a smartphone. Anything that you say or do can be used against you. Any data retrieved from your device can also be used against you. You have the right to an attorney. If you cannot afford one, one will be provided to you. Do you understand these rights as I have read them to you?”
This is an idea, in its infancy and carrying no legal clout. Yet the courts have already begun to decide in favor of digital privacy protections for custodial situations. In 2014, Riley v. California saw a unanimous decision in favor of law enforcement needing a warrant to search phones during an arrest. Chief Justice John Roberts made a distinction between searching a wallet and searching a mobile phone, saying, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”
Legal Invasion of Privacy
Shortly after the Riley v. California decision, an officer with the California Highway Patrol, while stopping a woman on suspicion of DUI, asked her to unlock her phone and hand it over. While this was simply a traffic stop, without a warrant, and not a custodial situation, she didn’t receive any Miranda warning.
The officer found semi-nude photos on the woman’s phone; he sent them to himself, then shared them with his friends. Sean Harrington, the officer in question, was eventually prosecuted for the crime.
It’s likely that most American’s don’t have a background knowledge of their full legal rights, relevant court cases, or a full application of both in today’s world.
So Miranda is outdated. What should a citizen do during interactions with law enforcement?
We’re not advocating for mutiny. But you should know your rights—namely, the right to remain silent, the right to contact a lawyer, and the right to hang onto your personal property—like a cell phone.
According to Michael Schmiege, a leading defense lawyer in Chicago, “one of the important takeaways here is that it’s not always required for law enforcement to read a suspect their rights. For example, a traffic stop would not be a custodial situation—no Miranda reading necessary. That’s why people should try to be aware of their rights—and to ask for their lawyer.”
If you grant an officer consent, they can search you without a warrant—even if you’re not explicitly informed of your rights to refuse.
Here, the line becomes blurred. Not only are many citizens unaware of their rights, but the interpretation of those rights is still being defined. It’s possible that someone refusing the requests—or orders—of a law enforcement officer risk contempt of court.
According to Alex Abdo, an American Civil Liberties Union attorney, “You shouldn’t resist a police order, you should lodge your dissent, and you should ask and clarify that they’re asking you to do it. But you should comply—as a lawyer that’s the advice you’re going to have to give.”
Whether or not officers can lawfully request, or force, people to hand over the passcodes to their smartphones is part of the new frontier of law enforcement. Apple recently made headlines for refusing to comply with the FBI’s requests to break their “unbreakable” encryption codes. And the issue may need to go all the way to the Supreme Court before a legal precedent is set for the future.
The 11th Circuit Court ruled in a 2012 case in favor of the decryption of a man’s computer being akin to providing self-incriminating testimony.
Shortly after that ruling, a Colorado judge ordered a woman to decrypt her laptop to enable prosecutors to use its data to support a case against her. The judge found that she would not be giving up her Fifth Amendment right in that case, but ultimately, the matter was settled without her needing to give up her password.
The tech advancements that allow phones to be locked and unlock with a fingerprint are so recent that most of the cases the government has cited in court predate such technology.
What Constitutes Noncustodial?
Last February, ten body-armored officers convened to execute a search warrant on the home of an Arkansas man, Justin Ashmore.
Upon answering his door, Ashmore was questioned in a way that practically begged for self-incrimination. He was not ever advised of his Miranda rights, nor was he told he was free to leave. Accused of downloading child pornography movies, Ashmore was told that he must give the agents every password to all of his electronic devices or “may be a very long time before he sees his own son again.”
US District Judge PK Holmes stated in his opinion that “The Government’s position is effectively that because officers never Mirandized Ashmore for his alleged confession related to child pornography, they could not have circumvented Miranda on purpose… Having listened to their testimony and observed their demeanor on this point, the Court does not believe the officers’ testimony and finds that they deliberately avoided giving Ashmore a Miranda warning.”
However, Judge Holmes allowed the data on Ashmore’s electronic devices to be presented as evidence during trials, because the search warrants for the devices were valid.
Ashmore is set to go to trial at the beginning of next week.
Mister Michael Schmiege has a long and successful history of defending the rights of the accused, in Chicago criminal cases as well as elsewhere. If you’ve been accused of child pornography charges, a sex crime, or withholding evidence, contact his legal team today for a free consultation. Questions about your constitutional rights—especially as they relate to your freedom—deserve expert answers. Mister Schmiege is ready to fight for you in the courtroom.