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Part II - Defendant ordered by judge to decrypt laptop - she forgets password

 

court

by Joseph Earnest  February 8, 2012

 

Newscast Media DENVER, Colo.  The judge in this case has ordered the defendant Ms. Fricosu, as follows: "...That on or before February 21, 2012, defendant, SHALL PROVIDE counsel for the government in this case with an unencrypted copy of the hard drive..."  The problem faced by the defendant is that if she does not comply with the judge's order, she could be charged with contempt, which in turn guarantees a jail sentence and/or a fine.

 

If on the other hand she complies and reveals the contents on the harddrive, there could be incriminating evidence that she obviously would not want the government to discover.  However, she still has an opening.  The judge has guaranteed her immunity in writing, and assured her that any of the information extracted from her laptop will not be used against her.  

 

Yet the question that arises is, if she has guaranteed immunity, why doesn't she give the feds what they want and free herself from this legal battle?  Is there information on the laptop that might incriminate someone close to her?  Is she protecting someone? Personally, I cannot answer those questions. Only Ms. Fricosu can do so. The truth dwells within her.

 

As I mentioned earlier, the government too could be challenged by an attorney who is knowledgeable.  According to the judge's order, two warrants were issued: One was for the search of her home, the second was to search her laptop.  However, the government introduced a recorded telephone conversation into evidence, upon which the judge relied to order the defendant to provide a decrypted harrdrive. The manner in which the evidence was obtained could be challenged.

 

Colo. Rev. Stat. § 18-9-303(1) allows the recording of a conversation in Colorado, by either a "sender or intended receiver" of a telephone communication.  In this instant case, the government was neither the sender, nor the intended receiver of the phone conversation, therefore an attorney could argue that it appears, they obtained this crucial piece of evidence through trickery and introduced it into evidence.  One might say in defense of the plaintiff, that the government could use the powers of the "Warrantless Surveillance Program" to listen to their conversations. The problem with that argument is that Ms. Fricosu is not a suspected terrorist. Secondly, it would be in violation of the Constitution's First and Fourth Amendments to introduce such evidence, since no warrant was issued to the FBI to seize those conversations on disc or tape, and introduce them into evidence.

 

Under the "Exclusionary Rule", such evidence obtained through searches and seizures (unreasonable searches and seizures) in violation of the Constitution's Fourth Amendment, has been deemed inadmissible by the United States Supreme Court. See "The burden of proving any evidence was untainted is on the government." (Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939)). "The evidence obtained here in violation of appellant's Fourth Amendment rights, as well as any evidence derived therefrom, should have been suppressed." (Alderman v. United States, 394 U.S. 165, 171, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969)).

 

In Miranda v. Arizona 384 U.S. 436, 491 (1966) the United States Supreme Court ruled: "Where rights secured by the U.S. Constitution are involved, there can be no rule-making or legislation which would abrogate them."

 

As such, the court order that was issued with a February 21, deadline could be challenged, if the defendant's rights were violated, because by law, such a court order would be void as stipulated below. 16 Am Jur 2d, Sections 157, 256 states:

"Court orders which abrogate fundamentalrights are null and void on their face ab initio (from inception)."

 

As a journalist, I have presented the potential dilemma that both parties will have to overcome.  Failure for the defendant (Fricosu) to obey or challenge the court order could result in being charged with criminal contempt.  As for the plaintiff (United States govt), it is elementary that allegations must be supported by facts. Failure to prove facts is fatal to the maintenance of this case.  Click here to download or read the judge's court order and legal arguments. (pop-up)  

 

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Part I - Defendant ordered by judge to decrypt laptop - she forgets password

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 The information in this article is presented to stimulate legal and scholarly debate, and is not intended as a substitute for legal advice from an attorney.

 

 

  

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