Twenty years ago, if law enforcement was conducting an investigation of, for instance, a sales tax evasion case by a car dealership being perpetrated with an accountant’s illicit assistance, the investigators would review all the evidence with the hope of obtaining a search warrant for where the accountant stored his or her records that may be evidence of the crime, the fraudulent double set of books. Frequently, the sought-after records were stored in the suspect’s office. The prosecutor would interview the lead investigator and draft the search warrant and affidavit in support, usually specified and attested to by the lead investigator articulating the facts upon which, pursuant to New York State Criminal Procedure Law Article 690, probable cause to believe a crime was being committed and evidence of that crime would be found on the premises to be searched. When executing the search warrant, the officers would be able to search any area in the subject warrant location that could reasonably conceal the sought-after evidence. A locked drawer or cabinet in the accountant’s office could be opened to search for the incriminating records.

Now, fast forward to today, the officers executing the warrant enter the accountant’s office, but instead of finding a treasure trove of paper tax documents, they come face-to-face with a laptop and cellphone that are password protected. May the accountant-owner be compelled to disclose the password? Courts are in apparent disagreement, and federal and state legislatures appear unwilling to act. This article will address the legal landscape presented by the scenario that plays out frequently in courts around the country.

Privacy, Security and Public Safety