States are divided over the constitutionality of searching a cell phone

Are citizens constitutionally protected against the government searching a cell phone? It depends upon what state you are in. In Indiana, it’s Supreme Court ruled that the 5th Amendment to the US Constitution voided a search warrant of a defendant’s phone accused of stalking. The court found that the 5th Amendment protected the defendant, a woman named Katelin Seo, against providing incriminating data and evidence on her phone.

However, that was not the result in Philadelphia where a federal appeals court rejected a defendant’s argument that the Fifth Amendment gave him the right to refuse to unlock hard drives found in his possession. The same conclusions were reached by the federal judiciary in Vermont and Colorado, as well as the highest appeals courts in the Commonwealths of Virginia and Massachusetts.

On the flip side, courts in Florida, Wisconsin, and Pennsylvania (notwithstanding the aforementioned federal decision out of Philadelphia) have reached the opposite conclusion, holding that forcing people to provide computer or smartphone passwords would violate the Fifth Amendment.

Courts are divided about this issue because relevant Supreme Court precedents predate the smartphone era. To understand the two competing theories, it’s helpful to analogize the situation to a pre-digital technology.

Analogy to a locked box

The constitutionality of whether a judge is allowed to compel a suspect to open a safe or a locked box police turns on what the police have probable cause to believe that incriminating evidence is in the strong box or safe. The police must also show dominion and control of the box by the defendant by proving either ownership or use, and must also show that the defendant knows the combination. The case law on point is clear: unless the police have probable cause to believe that the box contains evidence, and that the defendant has possession of the box, through ownership, use, or otherwise, forcing the defendant to open the safe is unconstitutional. On the other hand, if the government can show that the suspect knows both the combination and that specific incriminating evidence is in the safe, then the defendant can be forced to provide the combination to the police via court order. This is because the 5th Amendment right against self incrimination runs to testimony only, not the production of other non-verbal incriminating evidence.

However, courts are split in situations where they can prove control of the box and that the defendant knows the combination, but does not know what documents are contained in the safe. Some courts say that only the act of opening the safe is testimonial, and once the safe is open the evidence, or lack thereof, speaks for itself without any constitutionally protected verbal dialog. The other constitutionally expansive theory, and one used by Indiana’s Supreme Court, holds constitutionally relevant that the police know which documents they’re looking for. If the police are looking for specific documents that have probable cause to believe are contained therein, then their is no Fifth Amendment problem. If however the request is more of a fishing expedition, then it’s barred by the Fifth Amendment, since the act of opening the safe gives the police access to information they don’t have probable cause to believe exists. Some courts have found this argument particularly compelling due to the vast amount of information on modern smartphones.

United States vs. Hubbell

A key ruling Supreme Court decision in this area is the case of United States vs. Hubbell, 530 US 27 (2000). The issue in Hubbell was whether the Fifth Amendment privilege against self-incrimination protects a witness from being compelled to disclose the existence of incriminating documents that the Government is unable to describe with reasonable particularity. The court held that a prosecutor’s subpoena must state with particularity the documents it seeks. Because the defendant was not producing specific documents requested by the government, bus using his own knowledge and judgment to determine what the government was requesting, the defendant was was implicitly admitting that it existed, which was testimonial in nature and protected by the 5th Amendment.

Indiana’s Supreme Court relied on Hubbell and articulated that the same principle applies when a suspect is compelled to unlock a smartphone and giving prosecutors access to files they didn’t know existed, even if the state could prove that the defendant knew the password to her smart phone.

The Indiana ruling is on point with Hubbell, and there are valid policy reasons to favor this decision and interpretation of the US Constitution. Cell phones contain a wealth of sensitive personal information that was impossible to carry around before the dawn of the electronic age. We as a people should not cede our rights to the state to give the state the unfettered authority to scroll through every aspect of someone’s personal life seeking evidence of a crime the government has no reason to believe exists.

What to do if the police ever seize your cell phone and demand your password

The FIRST THING to do is exercise the following rights: (1) the right to remain silent, and (2) the right to counsel. The SECOND THING(S) to do is: SEE ABOVE, FOLLOW RULES 1 & 2! This article only covers the constitutional protections of the 5th Amendment. We also have constitutional protections under the 4th Amendment to be free from unreasonable searches and seizures. The BEST THING to do is ANY situation where the police are interrogating you is to keep your mouth shut and invoke your right to counsel.

If you or someone you know is under investigation or has been charged with a crime call us today! We speak to people every day who may have similar issues, and we’d love to answer any questions that you may have!