Your Cell Phone and the Fourth and Fifth Amendments (3)

What happens if you are arrested and law enforcement asks to search your phone?  Do you have to consent to a search of your phone? Do you have to provide the password/passcode?

In today’s modern world, most of our lives are captured in a digital format on our smart phones. Whether it’s our conversations, travel or even our thought process via our browsing history, our smart phones contain so much of who we are. The information contained on our mobile devices was best described by Senior District Judge Johnson in United States v. Adamou Djibo, 151 F.Supp. 3d 297 – Dist. Court, ED New York 2015  in dealing with the above questions, as:

“…the combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually and sometimes even sexually, in the owner’s life, and it pinpoints the whereabouts of the owner over time with greater precision than any tool heretofore used by law enforcement without aid of a warrant.”

As the court went on to say in U.S. v. Djibo, “[i]n today’s modern world, a cell phone passcode is the proverbial “key to a man’s kingdom.

Knowing the importance of keeping our personal information secure, most of us have some form of security measure on our devices to prevent unwanted/unauthorized access.  However, not all security measures provide the same level of protection.  What are your rights under Fourth and Fifth Amendments of U.S. Constitution?

Fourth Amendment

The Fourth Amendment affords:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In short, if you are arrested, law enforcement is not allowed to search your phone without first procuring a search warrant, absent certain exceptions. However, law enforcement does have the ability to “secure” and inventory the possessions found on your person, including your cell phone if arrested.

Although law enforcement typically needs a search warrant to search the contents your cell phone, there are exceptions to the warrant requirement. For example, giving permission to law enforcement to search your phone negates the warrant requirement. However, you are in no way obligated to provide law enforcement with consent to search the content of your phone if you are arrested.

Moreover, if you are a non-U.S. citizen, U.S. Customs and Border Patrol have the authority to search the content of your phone.

Fifth Amendment

Suppose law enforcement does in fact obtain a warrant to search your phone, can you then be compelled to provide your password? The short answer is, it depends on your jurisdiction and your type of security measure.

The Fifth Amendment provides every citizen and resident of the U.S. the right to remain silent in a criminal proceeding. It states, in part: “[n]o person…shall be compelled in any criminal case to be a witness against himself.

In essence, the right to remain silent means that you have the right to not make any statements or answer any questions at any stage of a criminal proceeding or investigation that may lead to criminal charges being brought against you.

However, as this relates to being compelled to provide law enforcement access to your cell phone or mobile device, there is no consistency to the application of the Fifth Amendment throughout the United States. Some jurisdictions, have interpreted it to mean your security measure is protected by the Fifth Amendment, while other jurisdictions have held that it is not protected.

Moreover, it further depends on whether your security measure is biometric (i.e. finger print or facial recognition) or a password/passcode (i.e. characters that you enter on the device). Some jurisdictions have held that only passwords/passcodes are protected under the Fifth Amendment because they are testimonial in nature, unlike biometric security measures, which are physical attributes, while other jurisdictions have extended Fifth Amendment protection to biometric security measures.

In New York, courts have applied Fifth Amendment protection to passwords/passcodes. Thus, if you are arrested and law enforcement asks for the password to your phone, you can invoke your Fifth Amendment rights, as it relates to your password/passcode. However, the law is still unsettled if you have a biometric security measure, such as fingerprint or facial recognition.

In short, until the Supreme Court weighs in on this issue, there will be continued inconsistency throughout the jurisdictions.

What Should You Do If You Are Arrested?

In any instance in which a person is arrested they should remember that they have rights. You should always know your rights. You have the right to remain silent, the right to be free of unreasonable searches and the right to an attorney. Accordingly, the first step a person should take if they are arrested and charged with a crime is exercise their rights to remain silent under the Fifth Amendment and to not be questioned without an attorney who represents them. Law enforcement is required to advise you of these rights before questioning you, but these rights exist and can be invoked by you even if law enforcement does not advise you of such.

The next step a person should take is seek the advice of an experienced criminal defense attorney. This should be done at the earliest stage, before the arraignment if possible. The results of all criminal prosecutions are determined by the facts and circumstances of your specific case and the skill and experience of your defense attorney.

An experienced and skilled attorney will do a thorough analysis of your case, by looking into all of the facts and circumstances surrounding your arrest, including whether there are any Fourth and/or Fifth Amendment issues raised at the time of your arrest.

If you or someone you know has been arrested in New York call the Law Office of Kevin J. Deloatch, Esq. at (646) 792-2156. The office has an extensive criminal law practice. The outcome of a criminal case is often determined by what occurs at the beginning stages of the prosecution. Call today for a free consultation.