If you’re anything like me, your cell phone is basically your life. It’s full of phone numbers, photos of your friends and family, text messages and tons of important information, like the exact specifications of your meticulously crafted Stormtrooper costume.
Imagine how you’d feel if someone took your phone and started looking through it without your permission. Pretty violated, right? But if you’ve committed a crime or are an accessory to a crime, there’s likely evidence somewhere on your cell phone – and law enforcement wants it. The question, though, is, do they have the right to it? What if it’s password protected? Do you have to unlock your phone for the cops just because they ask you to? Like all things, it depends.
What the Constitution has to say about privacy and self-incrimination
Much of the debate around whether or not the authorities can force you to unlock your phone centers around the Fifth Amendment’s protection from self-incrimination. Meaning, you have the right not to incriminate yourself. Further, your cell phone belongs to you, just like your car or your home. You don’t have to let the police search it without a warrant (check out the Fourth Amendment).
And this is exactly why you should keep your cell phone password-protected at all times. If the authorities do seize your phone, your password will prevent them from accessing your private information and any potential incriminating evidence. Under no circumstances, even if they assure you they are within the law, should you unlock your cell phone or other device for the police. Remember, giving them access to one thing gives them access to everything.
Fingerprints versus passcodes: it makes a difference when it comes to unlocking a phone
The Washington Post discusses the difficulties the legal system has encountered in forcing people to divulge their passcodes. One of the issues at hand is that the Fifth Amendment bars law enforcement from forcing you to reveal what you’re thinking – and that includes your passcode. However, it may not bar the police from opening your phone with your thumbprint or your face. If this sounds odd, it is, but it does make sense in context.
The Post cites a 2014 case where the police wanted the state to compel a man under arrest to unlock his phone to access suspected evidence. The judge ruled that the state could require the suspect to provide his fingerprint, but he did not have to provide his passcode. According to the Post, the judge ruled that “The fingerprint, like a key . . . does not require the witness to divulge anything through his mental processes. Unlike the production of physical characteristic evidence, such as a fingerprint, the production of a password forces a ‘defendant’ to disclose the ‘contents of his own mind.’”
However, the Post also noted that various courts have ruled differently.
What if the FBI wants my phone?
For the love of Pete, don’t give the Feds your phone. Don’t you watch TV?
The bottom line? Keep your cell phone password-protected at all times. Don’t give the police access to your cell phone without a warrant. And if you’re facing any type of criminal charges, call Drew.
Here at Drew Cochran, Attorney at Law, we provide dedicated and strategic criminal defense. If you’re in trouble, give our Annapolis or Ellicott City offices a call today at 410-271-1892 or reach out to me through my firm’s contact page.
And remember – Keep Calm, and Call Drew.