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The motion also states that Tunick asked four times to speak with a lawyer and was denied each time.
Fuck all the way off. This man did nothing wrong during this interaction, its police that fucked up.
It's a scary moment, but I'm very gently optimistic that it will set some good precedent, and that he might have a strong case to counter sue over the blatant infringement of his rights.
Repeated violations of his rights, no warrants, no formal arrest.
Fuck all the way off. Zero case.
This case is really strange.
The case raises questions about which constitutional rights apply at US borders, including international airports, where authorities have broader search powers.
On the one hand, destroying evidence during an investigation or which someone believes might be linked to one is a generally bad idea. However, to me it seems like the border agents should have had no right to search the phone without a warrant. Seize maybe, but not search. If the search was illegal and the case dismissed (especially since Tunick was not read Miranda which seems to imply there was no arrest?), then I think it would be hard to argue that any evidence was destroyed because the investigation itself would have been performed illegally.
In any case, doing this in a legal search of the phone (with a warrant) is most likely illegal.
He could just as easily argue he was forced to give the password under duress and accidentally gave them the wrong password.
As such, its highly improper for them to have tried to take data from his phone without a warrant and try to argue he destroyed evidence when he has not been charged with a crime.
The motion also states that Tunick asked four times to speak with a lawyer and was denied each time.
Also highly illegal.
He could just as easily argue he was forced to give the password under duress and accidentally gave them the wrong password.
It's not really a case of duress. Legal searches are also done under duress, and you can't just argue to a judge "well I got nervous and shredded the documents".
What it really boils down to is whether border agents can search a phone without a warrant on entry, or whether the search was illegal. As part of it, they also need to decide whether a person has their Miranda rights during entry to a country. The answer, in my opinion, should be obvious (the alternative is you have no rights on entry), but with the current courts, who knows what they'll decide.
Also highly illegal.
This is where the question about Miranda rights comes in, and whether the question of whether the constitution grants rights during entry comes in as well. If you have no rights, then it can be argued you have no right to demand a lawyer either.
What's the big deal? He did comply, it was the border agents that asked for the phone and password, and was granted both.
If you have a post-it in the case with this wipe password, would this get around the act of doing it yourself?
It would be very funny if you wrote that this is the wipe password in very fine print.
'Oh no, you found the secret hidden password. Please, whatever you do, don't use it!'
I feel like if they'd charge you for doing it they'd also charge you for the general intent
They'll charge you for anything and everything they think they can.
This. A charge isn't a conviction, though.
Plausable deniability might help you here as long as you can think of a valid reason why you had that code on the note. It could be as simple as "this is the code I needed to remember for this one game" or something too. As long as you don't tell them that the note contains the code to your phone, you can pretend the note contains a code of some other value instead later on and let them shoot themselves in the foot.
As a general rule, most lawyers would tell you if you are under arrest to say nothing more than what you are required to by law. Since this is at a border, it gets weird, but that's what makes this case unusual as well. Under normal circumstances, they might seize the phone as evidence, but saying nothing might result in them wiping the device themselves before they ever get a warrant for the passcode.