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Is Your Cell Phone’s Passcode Private?

Is Your Cell Phone’s Passcode Private?
July 28, 2019 Shannon Dawes

Today’s smartphones are truly technological marvels and are a storehouse of our personal information. Someone with full access to our smartphones and the apps we have installed on them can see our social media activity, access our bank accounts, see photographs we have taken (and learn where and when we took them), and obtain information about the people we frequently contact. All of this makes smartphones a potential gold mine of information for law enforcement officers. Do you have to “unlock” this mine by providing your passcode to an officer who asks for it?

Timeless Constitutional Protections Meet Modern Technology

This question illustrates the challenges courts face when constitutional protections written over 200 years ago are applied to modern-day situations. For example, the Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. This has traditionally meant that law enforcement officers must obtain a search warrant from a judge or magistrate before being able to search one’s private affairs. But does a warrant entitle law enforcement to force a defendant to unlock their smartphone and allow law enforcement unfettered access to the contents?

Or consider the Fifth Amendment, which protects a defendant or suspect from being forced to make incriminating statements. It is well-established, for example, that no law enforcement officer can force a suspect to implicate themselves in a crime under investigation. But does requiring a defendant or suspect to divulge the passcode to a phone – thereby implicitly acknowledging ownership over the phone and knowledge of its contents – violate this constitutional principle?

Few Clear Answers from the Courts 

An increasing number of courts around the country are beginning to grapple with these and related questions. The outcomes are not always clear or consistent. Some courts have held that passcodes that consist of a person’s fingerprint or face are not constitutionally protected in the context of smartphone access because law enforcement has routinely been able to fingerprint suspects as part of criminal investigations. Thus, it appears courts are willing to require a suspect or defendant to provide their fingerprint or permit law enforcement to use their face in order to unlock a smartphone.

Conversely, courts appear to be more hesitant to require suspects to divulge passwords that consist of words, letters, and numbers. This information is not publicly known or discernible and can be potentially incriminating (if the suspect knows the passcode to a phone, then one could easily conclude that the phone belongs to that person and that the person knows about any incriminating photographs, messages, or voicemails that might be on the phone).

What To Do When Law Enforcement Asks to See Your Smartphone

 If you are stopped or pulled over by an officer and that officer asks to see your phone, you need not turn over physical control of your phone without a warrant. Similarly, if your smartphone’s passcode consists of a phrase, letters, or numbers, you may not need to disclose that password at all, even if officers supposedly present a warrant (you likely do not have the same protections if your passcode is your fingerprint or face). You should know, though, that in at least one case in Florida a person was detained in jail for refusing to provide their alpha-numeric passcodes when presented with a warrant. That person was eventually released, though, when the appellate courts in Florida reviewed his case.

Talk with a Columbus Criminal Defense Attorney Today About Your Case 

If you are facing criminal charges stemming from information found on your smartphone, or if you believe law enforcement officers violated your constitutional rights by demanding you provide an alpha-numeric passcode to your phone, speak with Dawes Legal, LLC about your situation. We may be able to help successfully resolve your criminal case. Call our office at (614) 733-9999 and set up an initial case consultation to go over your circumstances.