If anyone is interested here is a link to the motion to suppress:
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Political Post: Should Phone Privacy Tools Be Illegal for Citizens?
- Thread starter john_marsten_1873
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They said “we made it up” verbatim? Doubt without proof.
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Because your premise is false. It’s not a BS search, it’s clearly legal per the law. They caught him red handed. That’s why he will likely be convicted
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I get your point, but please read the article that you attached. The "exception" that you're speaking of is not an exception to the Fourth Amendment. It's an "exception" to the presumption that a warrant is required in order to make a search reasonable. Big difference there.
The Fourth Amendment still applies, and without exception, at the border.
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Yeah. Having read the actual 13-page motion, the online summaries make it sound considerably stronger than it is.
The motion has one potentially serious lane: the Fifth Amendment/Miranda issue surrounding the compelled passcode after the questioning allegedly became accusatory. The Sixth Amendment claim is basically wrong, the fruit-of-the-poisonous-tree argument is strained, and the Fourth Amendment section runs straight into binding Eleventh Circuit precedent that the defense itself cites.
The motion repeatedly says Tunick’s requests for a lawyer were ignored and therefore his “Sixth Amendment rights were violated,” relying on Escobedo.
That is not how the modern Sixth Amendment right to counsel works. The Sixth Amendment right is offense-specific and does not attach until adversary judicial proceedings have begun, such as by formal charge, indictment, information, arraignment, etc. McNeil v. Wisconsin states that rule explicitly.
Tunick was being investigated at the airport in January 2025. The indictment wasn’t returned until November 2025. So at the airport, he had a potential Fifth Amendment Miranda right to counsel if he was in custodial interrogation, but not a Sixth Amendment right to counsel on this future §2232 prosecution.
That’s not a close call. Calling it a Sixth Amendment violation is sloppy.
The brief says:
“In other words, Mr. Tunick was not free to leave at any time.”
and essentially treats that as establishing custody.
That’s too simplistic at an international border. Travelers undergoing secondary inspection inherently aren’t free to simply walk away, yet Eleventh Circuit law does not automatically treat ordinary border questioning as Miranda custody. Moya requires the questioning to reach a “distinctly accusatory” level, viewed in the context of the government’s unusually broad border authority.
But this is where Tunick actually has something.
In Jayyousi, Padilla’s border interview became custodial when the agent directly accused him of terrorist activity. The Tunick motion alleges agents introduced themselves as looking for “people who are pedophiles,” said they needed to determine whether he possessed child pornography, repeatedly demanded the phone password, and continued after he asked for counsel and said he didn’t want to answer questions.
If the evidentiary hearing establishes that they were actually accusing Tunick personally of CSAM possession rather than merely explaining what CBP was looking for, Jayyousi gives the defense a respectable argument that the encounter crossed the Miranda line.
So I would call this the strongest part of the motion.
This is another point where the defense has legitimate Eleventh Circuit authority.
The motion cites In re Grand Jury for the proposition that compelled decryption can be testimonial. Even more directly, in McKathan, the Eleventh Circuit agreed that communicating a PIN can constitute an incriminating testimonial communication; the major remaining question was whether it had been compelled.
So you shouldn’t frame the case as “CBP has border authority, therefore they can constitutionally compel him to verbally reveal anything they want.” Search authority and compelled testimonial disclosure are different constitutional questions.
The government’s answer is likely that it lawfully possessed authority to search the device regardless of whether Tunick could be compelled to assist in defeating its encryption.
And that distinction matters enormously to §2232.
The motion has one potentially serious lane: the Fifth Amendment/Miranda issue surrounding the compelled passcode after the questioning allegedly became accusatory. The Sixth Amendment claim is basically wrong, the fruit-of-the-poisonous-tree argument is strained, and the Fourth Amendment section runs straight into binding Eleventh Circuit precedent that the defense itself cites.
- The Sixth Amendment argument is the easiest thing to kill.
The motion repeatedly says Tunick’s requests for a lawyer were ignored and therefore his “Sixth Amendment rights were violated,” relying on Escobedo.
That is not how the modern Sixth Amendment right to counsel works. The Sixth Amendment right is offense-specific and does not attach until adversary judicial proceedings have begun, such as by formal charge, indictment, information, arraignment, etc. McNeil v. Wisconsin states that rule explicitly.
Tunick was being investigated at the airport in January 2025. The indictment wasn’t returned until November 2025. So at the airport, he had a potential Fifth Amendment Miranda right to counsel if he was in custodial interrogation, but not a Sixth Amendment right to counsel on this future §2232 prosecution.
That’s not a close call. Calling it a Sixth Amendment violation is sloppy.
- Their Miranda argument is much better, but “he wasn’t free to leave” doesn’t prove custody at a border.
The brief says:
“In other words, Mr. Tunick was not free to leave at any time.”
and essentially treats that as establishing custody.
That’s too simplistic at an international border. Travelers undergoing secondary inspection inherently aren’t free to simply walk away, yet Eleventh Circuit law does not automatically treat ordinary border questioning as Miranda custody. Moya requires the questioning to reach a “distinctly accusatory” level, viewed in the context of the government’s unusually broad border authority.
But this is where Tunick actually has something.
In Jayyousi, Padilla’s border interview became custodial when the agent directly accused him of terrorist activity. The Tunick motion alleges agents introduced themselves as looking for “people who are pedophiles,” said they needed to determine whether he possessed child pornography, repeatedly demanded the phone password, and continued after he asked for counsel and said he didn’t want to answer questions.
If the evidentiary hearing establishes that they were actually accusing Tunick personally of CSAM possession rather than merely explaining what CBP was looking for, Jayyousi gives the defense a respectable argument that the encounter crossed the Miranda line.
So I would call this the strongest part of the motion.
- The passcode itself really can be testimonial. That part isn’t bull
.
This is another point where the defense has legitimate Eleventh Circuit authority.
The motion cites In re Grand Jury for the proposition that compelled decryption can be testimonial. Even more directly, in McKathan, the Eleventh Circuit agreed that communicating a PIN can constitute an incriminating testimonial communication; the major remaining question was whether it had been compelled.
So you shouldn’t frame the case as “CBP has border authority, therefore they can constitutionally compel him to verbally reveal anything they want.” Search authority and compelled testimonial disclosure are different constitutional questions.
The government’s answer is likely that it lawfully possessed authority to search the device regardless of whether Tunick could be compelled to assist in defeating its encryption.
And that distinction matters enormously to §2232.
- The “fruit of the poisonous tree” section is probably their weakest substantive argument after the Sixth Amendment claim.
In the narrow confines of a "Did he trick the police into entering a duress code?", evidence of terrorism, CP, Bigfoot, etc. doesn't do either and so may be excluded as part of an active investigation that has no bearing on what he did (destroy evidence).
They just have to prove:
- He acted willfully and knowingly,
- He destroyed or concealed any evidence, and
- He did so during a legal proceeding.
-He knew the phone was part of an investigation (the fact that the cops wanted to look at it means it can't be altered or destroyed, significance/relevance or lack thereof be damned.)
-He was being questioned so he was in the midst of a legal proceeding.
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Here’s their move:
They say the passcode was obtained in violation of Miranda, therefore the phone wipe produced by entering that passcode must also be suppressed.
Problem: United States v. Patane says an ordinary Miranda violation does not generally require suppression of the physical fruits of an unwarned but voluntary statement. The Supreme Court reiterated that principle in Vega v. Tekoh.
The defense knows this and tries to distinguish Patane by saying the “wiping” is itself testimonial.
I don’t find that very convincing.
There are really two things:
The communication of the passcode: potentially testimonial.
The phone blanking, flashing, restarting, and losing its contents: observable digital/physical evidence of what resulted from entering that credential.
Calling the second thing “testimonial” because it was caused by the first doesn’t magically transform the phone’s resulting state into testimony.
This becomes much stronger for Tunick only if he can show actual unconstitutional compulsion/involuntariness, rather than merely a failure to give Miranda warnings. The motion blurs those concepts. An unwarned voluntary statement and an actually coerced statement have different derivative-evidence consequences.
And there is some hilariously sloppy citation work here. The brief cites:
United States v. Lall, 607 F.3d 1277 “(11th Cir. 1985).”
Lall was decided in 2010.
It also repeatedly cites Jackson v. Denno, 378 U.S. 368 as 1984. It was decided in 1964.
Those aren’t fatal errors, but they’re not confidence-inspiring in a 13-page federal suppression motion.
The defense openly acknowledges:
The Eleventh Circuit has held that forensic searches of electronic devices at the border are constitutional without a warrant, probable cause, or individualized suspicion, citing Touset.
Then it basically says Touset is wrong.
That’s fine if you’re preserving the issue for the Eleventh Circuit en banc or Supreme Court. But a federal district judge in Georgia doesn’t get to say, “I prefer the Fourth Circuit.”
Worse, the motion cites Pulido, a published 2025 Eleventh Circuit decision, and then doesn’t grapple honestly with what Pulido actually held.
The brief says:
“As the level of the search’s intrusiveness increases, the amount of suspicion needed to justify the search should increase.”
That gives a badly misleading impression of Eleventh Circuit law as applied to phones.
Pulido expressly says the relevant “intrusiveness” distinction in Eleventh Circuit border doctrine concerns bodily integrity and personal indignity, not the scope of information contained in property. It then reiterates that even a forensic electronic-device search requires no individualized suspicion.
That’s about as direct as precedent gets.
Tunick argues that the border exception historically exists to stop contraband from entering the United States and asks, essentially:
If the digital contents were destroyed, where was the danger of contraband entering the country?
Then he argues authorities improperly used the border to investigate domestic Cop City-related activity.
But Pulido considered the argument that searching private messages exceeds the historical contraband rationale and rejected it.
The Eleventh Circuit said Vergara and Touset do not restrict the border-search exception to searches for contraband.
Meaning the defense isn’t merely asking the district court to extend the law a little. It’s asking the district court to go against the published Eleventh Circuit case it cites two pages earlier.
This may be the most interesting thing I found.
Quarles was decided by the Eleventh Circuit in May 2025, about ten months before Tunick filed this motion. It’s unpublished, so it isn’t binding precedent like Pulido, but its facts are almost comically relevant.
CGIS was already investigating Quarles for domestic criminal activity. It put an alert in a law-enforcement database and specifically requested that his electronic devices be searched when he returned to the United States. When he returned from an international cruise, CBP, CGIS, and HSI intercepted him, took the phone, manually searched it, and then performed a bit-for-bit forensic extraction.
Sound familiar?
Quarles argued that the border exception should apply only to contraband searches and that using it to gather evidence of ordinary criminal activity required a warrant.
The Eleventh Circuit said his argument was foreclosed by Pulido.
That doesn’t make Quarles identical to Tunick. Quarles had considerably stronger individualized suspicion against him. But the appellate court’s legal reasoning did not depend on suspicion being necessary. More importantly, it demonstrates that a preplanned request from another investigative agency to exploit a suspect’s return through the border does not, by itself, take the resulting device search outside Eleventh Circuit border-search doctrine.
Tunick’s motion never mentions Quarles.
That’s a conspicuous omission.
The defense cites Aigbekaen and Kolsuz from the Fourth Circuit, Qin from the First, and Cano from the Ninth to demonstrate that other circuits impose tighter limits on electronic border searches.
That’s legitimate appellate advocacy. There genuinely is disagreement among the circuits.
But it doesn’t make those cases controlling in the Northern District of Georgia. Pulido is published Eleventh Circuit precedent. A district court is bound by it.
So that whole final section reads to me primarily as:
“We know existing circuit law is against us; we’re preserving this issue for appeal.”
That’s perfectly normal defense lawyering, but it’s a very different thing from the Reddit/forum interpretation that Tunick has discovered some giant hole in CBP’s border-search authority.
There are also two arguments I think the defense strangely underdevelops.
First, Pulido says border-search analysis begins by asking whether there was statutory authority for the search before reaching Fourth Amendment reasonableness. Tunick’s lawyers mention this and then barely develop it. If their theory really is “CBP was being used as an FBI proxy for an investigation totally outside legitimate border functions,” attacking the precise statutory authority and its scope would seem much more useful than telling a district judge that binding Touset is wrongly decided.
Second, the motion says DHS seized his devices for 30 days, yet it doesn’t really develop a separate prolonged-seizure argument. Eleventh Circuit law recognizes that even an initially lawful seizure can become unreasonable through excessive delay. Quarles itself analyzes that question separately. Whether 30 days was unreasonable would depend heavily on what the government did during that period, but that’s at least a doctrinally available argument rather than asking the district court to ignore Pulido.
The really important point for the §2232 charge is this:
Tunick can win a Miranda issue without necessarily proving that CBP lacked lawful authority to take the phone.
They say the passcode was obtained in violation of Miranda, therefore the phone wipe produced by entering that passcode must also be suppressed.
Problem: United States v. Patane says an ordinary Miranda violation does not generally require suppression of the physical fruits of an unwarned but voluntary statement. The Supreme Court reiterated that principle in Vega v. Tekoh.
The defense knows this and tries to distinguish Patane by saying the “wiping” is itself testimonial.
I don’t find that very convincing.
There are really two things:
The communication of the passcode: potentially testimonial.
The phone blanking, flashing, restarting, and losing its contents: observable digital/physical evidence of what resulted from entering that credential.
Calling the second thing “testimonial” because it was caused by the first doesn’t magically transform the phone’s resulting state into testimony.
This becomes much stronger for Tunick only if he can show actual unconstitutional compulsion/involuntariness, rather than merely a failure to give Miranda warnings. The motion blurs those concepts. An unwarned voluntary statement and an actually coerced statement have different derivative-evidence consequences.
And there is some hilariously sloppy citation work here. The brief cites:
United States v. Lall, 607 F.3d 1277 “(11th Cir. 1985).”
Lall was decided in 2010.
It also repeatedly cites Jackson v. Denno, 378 U.S. 368 as 1984. It was decided in 1964.
Those aren’t fatal errors, but they’re not confidence-inspiring in a 13-page federal suppression motion.
- The Fourth Amendment section is where the brief starts looking like an appellate issue-preservation exercise rather than something this district judge can actually grant.
The defense openly acknowledges:
The Eleventh Circuit has held that forensic searches of electronic devices at the border are constitutional without a warrant, probable cause, or individualized suspicion, citing Touset.
Then it basically says Touset is wrong.
That’s fine if you’re preserving the issue for the Eleventh Circuit en banc or Supreme Court. But a federal district judge in Georgia doesn’t get to say, “I prefer the Fourth Circuit.”
Worse, the motion cites Pulido, a published 2025 Eleventh Circuit decision, and then doesn’t grapple honestly with what Pulido actually held.
The brief says:
“As the level of the search’s intrusiveness increases, the amount of suspicion needed to justify the search should increase.”
That gives a badly misleading impression of Eleventh Circuit law as applied to phones.
Pulido expressly says the relevant “intrusiveness” distinction in Eleventh Circuit border doctrine concerns bodily integrity and personal indignity, not the scope of information contained in property. It then reiterates that even a forensic electronic-device search requires no individualized suspicion.
That’s about as direct as precedent gets.
- Even worse for Tunick, Pulido already rejected almost his exact “contraband” argument.
Tunick argues that the border exception historically exists to stop contraband from entering the United States and asks, essentially:
If the digital contents were destroyed, where was the danger of contraband entering the country?
Then he argues authorities improperly used the border to investigate domestic Cop City-related activity.
But Pulido considered the argument that searching private messages exceeds the historical contraband rationale and rejected it.
The Eleventh Circuit said Vergara and Touset do not restrict the border-search exception to searches for contraband.
Meaning the defense isn’t merely asking the district court to extend the law a little. It’s asking the district court to go against the published Eleventh Circuit case it cites two pages earlier.
- And the omission of United States v. Quarles is pretty brutal.
This may be the most interesting thing I found.
Quarles was decided by the Eleventh Circuit in May 2025, about ten months before Tunick filed this motion. It’s unpublished, so it isn’t binding precedent like Pulido, but its facts are almost comically relevant.
CGIS was already investigating Quarles for domestic criminal activity. It put an alert in a law-enforcement database and specifically requested that his electronic devices be searched when he returned to the United States. When he returned from an international cruise, CBP, CGIS, and HSI intercepted him, took the phone, manually searched it, and then performed a bit-for-bit forensic extraction.
Sound familiar?
Quarles argued that the border exception should apply only to contraband searches and that using it to gather evidence of ordinary criminal activity required a warrant.
The Eleventh Circuit said his argument was foreclosed by Pulido.
That doesn’t make Quarles identical to Tunick. Quarles had considerably stronger individualized suspicion against him. But the appellate court’s legal reasoning did not depend on suspicion being necessary. More importantly, it demonstrates that a preplanned request from another investigative agency to exploit a suspect’s return through the border does not, by itself, take the resulting device search outside Eleventh Circuit border-search doctrine.
Tunick’s motion never mentions Quarles.
That’s a conspicuous omission.
- The out-of-circuit cases are real, but they don’t rescue him in Georgia.
The defense cites Aigbekaen and Kolsuz from the Fourth Circuit, Qin from the First, and Cano from the Ninth to demonstrate that other circuits impose tighter limits on electronic border searches.
That’s legitimate appellate advocacy. There genuinely is disagreement among the circuits.
But it doesn’t make those cases controlling in the Northern District of Georgia. Pulido is published Eleventh Circuit precedent. A district court is bound by it.
So that whole final section reads to me primarily as:
“We know existing circuit law is against us; we’re preserving this issue for appeal.”
That’s perfectly normal defense lawyering, but it’s a very different thing from the Reddit/forum interpretation that Tunick has discovered some giant hole in CBP’s border-search authority.
There are also two arguments I think the defense strangely underdevelops.
First, Pulido says border-search analysis begins by asking whether there was statutory authority for the search before reaching Fourth Amendment reasonableness. Tunick’s lawyers mention this and then barely develop it. If their theory really is “CBP was being used as an FBI proxy for an investigation totally outside legitimate border functions,” attacking the precise statutory authority and its scope would seem much more useful than telling a district judge that binding Touset is wrongly decided.
Second, the motion says DHS seized his devices for 30 days, yet it doesn’t really develop a separate prolonged-seizure argument. Eleventh Circuit law recognizes that even an initially lawful seizure can become unreasonable through excessive delay. Quarles itself analyzes that question separately. Whether 30 days was unreasonable would depend heavily on what the government did during that period, but that’s at least a doctrinally available argument rather than asking the district court to ignore Pulido.
The really important point for the §2232 charge is this:
Tunick can win a Miranda issue without necessarily proving that CBP lacked lawful authority to take the phone.
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Part 3
Those are separate questions.
Suppose the judge concludes:
That does not automatically mean CBP’s authority to seize the phone itself was unlawful. And §2232 specifically concerns interfering with the government’s “lawful authority” to take property into custody/control.
Then Patane creates another problem for the defense: even if the passcode statement is excluded, the agents’ observation that the phone blanked, flashed and restarted after entering the supplied credential may remain admissible as non-testimonial derivative evidence if the statement was voluntary.
So my scorecard on this particular brief is:
Strongest: Fifth Amendment/Miranda custody argument, especially if the agents actually accused him of possessing CSAM and then kept demanding the credential after an unequivocal lawyer request.
Legitimate: Passcode/PIN as testimonial communication.
Weak: Suppressing the resulting phone wipe as Miranda fruit.
Very weak: Sixth Amendment right-to-counsel claim.
Nearly foreclosed at the district-court level: Fourth Amendment theory that forensic phone searches require suspicion or must be limited to border contraband. Pulido directly says otherwise.
Extremely damaging missing authority: Quarles, because it shows the Eleventh Circuit applying Pulido to a preplanned, interagency device search triggered specifically by the suspect’s return across the border.
And one procedural caveat: this motion isn’t the last word. An evidentiary suppression hearing was held/continued in July 2026, so testimony developed after this March filing can materially improve or damage these arguments. The docket indicates further post-hearing briefing is still forthcoming.
Those are separate questions.
Suppose the judge concludes:
- CBP lawfully had border-search/seizure authority over the phone under Touset/Pulido;
- but questioning Tunick had become custodial;
- CBP should have Mirandized him;
- and his verbal disclosure of the passcode therefore can’t be introduced as a statement.
That does not automatically mean CBP’s authority to seize the phone itself was unlawful. And §2232 specifically concerns interfering with the government’s “lawful authority” to take property into custody/control.
Then Patane creates another problem for the defense: even if the passcode statement is excluded, the agents’ observation that the phone blanked, flashed and restarted after entering the supplied credential may remain admissible as non-testimonial derivative evidence if the statement was voluntary.
So my scorecard on this particular brief is:
Strongest: Fifth Amendment/Miranda custody argument, especially if the agents actually accused him of possessing CSAM and then kept demanding the credential after an unequivocal lawyer request.
Legitimate: Passcode/PIN as testimonial communication.
Weak: Suppressing the resulting phone wipe as Miranda fruit.
Very weak: Sixth Amendment right-to-counsel claim.
Nearly foreclosed at the district-court level: Fourth Amendment theory that forensic phone searches require suspicion or must be limited to border contraband. Pulido directly says otherwise.
Extremely damaging missing authority: Quarles, because it shows the Eleventh Circuit applying Pulido to a preplanned, interagency device search triggered specifically by the suspect’s return across the border.
And one procedural caveat: this motion isn’t the last word. An evidentiary suppression hearing was held/continued in July 2026, so testimony developed after this March filing can materially improve or damage these arguments. The docket indicates further post-hearing briefing is still forthcoming.
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Don’t go down their rabbit holes into nonsense. Checkout my long winded post that shreds the BS
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He has devices seized, brought to secondary holding and strip-searched, all the while asking for his lawyer.
Furthermore, he was accused of first CSAM possession and then criminal activist activity.
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Yep then he destroyed evidence of the CSAM, scared and freaking out at the border. Like a stuck rat
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I know I'm just saying that colloquially how it's referred. You are right that it's still under the 4th amendment. But Even in the court case US v Ramsey I posted they call it an "exception" in the text:
"The border search exception is not based on the doctrine of"exigent circumstances," but is a longstanding, historically recognized exception to the Fourth Amendment's general principle that a warrant be obtained."
The reason why I think that matters here and why the word exception matters is that the historical context of this exception is to secure illegal goods and contraband. The case is a good read as it contains many examples of this language, and none of them include investigations on potential domestic crimes. In the current case, they appear to be digging for information beyond the scope of illegal goods which is why they lied about the intentions at the outset. Exception means the scope is limited
For example:
The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 2, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute,Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed. . . ." This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place . . ."where a warrant upon "cause to suspect" was required.
and more..
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So reading the actual motion to suppress is far more informative. Basically, Tunick's team is arguing that CBP's question moved beyond non-custodial to an accusatory level at which time his 5th Amendment rights "kicked in". He's supposed to be Miranda'd and has a right to refuse any further questioning without a lawyer present. At that point, any evidence or statements taken that would be in violation of his rights are inadmissable as evidence.
So giving the pass code to wipe the phone after he was denied his right to an attorney is not admissible as evidence.
So reading the actual motion to suppress is far more informative. Basically, Tunick's team is arguing that CBP's question moved beyond non-custodial to an accusatory level at which time his 5th Amendment rights "kicked in". He's supposed to be Miranda'd and has a right to refuse any further questioning without a lawyer present. At that point, any evidence or statements taken that would be in violation of his rights are inadmissable as evidence.
So giving the pass code to wipe the phone after he was denied his right to an attorney is not admissible as evidence.
Miranda is for speech, not physical evidence. Wipe codes affect physical evidence, hence his current charge. Per the last sentence of the quote, the phone might not have been used against him had he not tried to be fancy. Spare me the foil hat contact info theory, the exculpatory value of protecting a contact list is up to the court.
Miranda Violations & Tangible Evidence in CA | Summit Defense
Can tangible evidence be admitted after a Miranda violation? Our criminal defense attorneys challenge inadmissible evidence. Free consult.
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It appears that CBP officers, under oath in court, testified at an evidentiary hearing that they made up the CSAM allegation. Anyone with a PACER account can access the docket.
I can’t for the life me understand why that’s shocking to anyone. Police can and lie to suspects as a legitimate, lawful interrogation tactic.
It is well settled law that if a suspect invokes their right to silence or counsel, questioning must stop.
I can’t for the life me understand why that’s shocking to anyone. Police can and lie to suspects as a legitimate, lawful interrogation tactic.
It is well settled law that if a suspect invokes their right to silence or counsel, questioning must stop.
That and they also point to CBP ignoring his requests to have an attorney present. Essentially, they are arguing Fourth, Fifth and Sixth Amendment violations.So reading the actual motion to suppress is far more informative. Basically, Tunick's team is arguing that CBP's question moved beyond non-custodial to an accusatory level at which time his 5th Amendment rights "kicked in". He's supposed to be Miranda'd and has a right to refuse any further questioning without a lawyer present. At that point, any evidence or statements taken that would be in violation of his rights are inadmissable as evidence.
So giving the pass code to wipe the phone after he was denied his right to an attorney is not admissible as evidence.
That is why they cite federal caselaw holding that decrypting a hard drive is “testimonial”Miranda is for speech, not physical evidence. Wipe codes affect physical evidence, hence his current charge.
Miranda Violations & Tangible Evidence in CA | Summit Defense
Can tangible evidence be admitted after a Miranda violation? Our criminal defense attorneys challenge inadmissible evidence. Free consult.
Which is even more reason for him to have just kept his mouth shut, but instead he got fancy and did something that's not covered, which is providing the means to destroy the contents. That by definition is not decrypting.
Do you have a PACER account?
If the transcript is posted, I’d be interested to see how they phrased it.
My guess is cop jargon like, “using a tactical deception, we confronted subject with information that his cellphone contained CSAM”
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Yeah, I certainly wouldn’t advise a client to wipe their phone in that situation. But, if he wins on the Fourth, Fifth or Sixth Amendment issues, the observations of the wiping are fruit of the poisonous tree and governments case is DOA.
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The destruction of evidence charge might have been a lot easier on him than whatever else he had.