Florida Criminal Defense Lawyer View: Smartphones and 5th Amendment

Eyes may be “windows to the soul,” but could it be said that smartphones contain the “contents of our minds”? That’s what one criminal defense attorney recently argued before a state appellate court, asserting that police investigators executing a search warrant on her smartphone – and prosecutors’ effort to hold her in contempt of court when she refused – were a violation of her 5th Amendment rights. criminal defense attorney

The trial court agreed, and recently, so did the Indiana Court of Appeals, in a split opinion noting smartphones today are “truly as close as modern technology allows us to come to a device that contains all of its owner’s conscious thoughts, and many of his or her unconscious thoughts as well. So when the state seeks to compel a person to unlock a smartphone so that it may search the phone without limitations, the privacy implications are enormous.”

It’s a case that has raised some very interesting questions about how we navigate well-established constitutional protections for those accused of crime. In the case conclusion here, the majority wrote that courts will probably be continually faced with these kinds of issues that deal with the intersection of rapidly-evolving technology and law. Here, compelling a defendant to unlike her iPhone under threat of contempt and imprisonment is an unlawful violation of her Constitutional Fifth Amendment right against self-incrimination. (In other similar cases nationally, it’s the 4th Amendment’s protections against unreasonable search and seizure that have been cited.) Revealing a smartphone passcode, the court ruled, and prosecutors failed to meet the requirements of the “foregone conclusion doctrine” by describing with reasonable specificity why the information defendant should be compelled to produce and why. (It should be noted that without a passcode, even cellphone makers like Apple can’t extract data from the device, as the encryption key is tied to the passcode. After 10 failed attempts, the phone locks up and might even erase all contents therein.

Fort Lauderdale criminal defense attorneys recognize that while this ruling has no direct bearing on those accused of crime in Florida, state appellate and supreme courts will often seek guidance from other decisions around the country, particularly when dealing with issues of first impression. The Florida Supreme Court in 2014 ruled police must obtain a warrant in order to use the location of one’s cell phone to track that person’s location in real time. The state high court also ruled five years ago that police must obtain a warrant in order to search a seized cell phone without the owner’s permission.

As far as whether police can compel someone to offer their cell phone passcode, Florida’s Second District Court of Appeals ruled the court could compel a man accused of voyeurism to produce his four-digit passcode to police so they could search the phone for photographic evidence. In its reversal of the trial court, the 2nd DCA ruled providing a passcode won’t betray knowledge defendant may have about the circumstances of offenses.

Many of these cases refer back to the 1988 U.S. Supreme court ruling, wherein Justice John Paul Stephen wrote an accused person might be “forced to surrender a key to a strongbox containing incriminating information, but cannot be compelled to reveal the combination to his wall safe.”

In the Indiana case, prosecutors argued they weren’t asking the defendant to reveal her passcode to them, but rather unlock it so it could be accessible to police investigators. Defendant had contacted authorities to report she had been a victim of rape. A detective investigating the case did a forensic download of her phone and then returned it to her. Upon reviewing the contents, the detective decided not to press forward on the alleged rape case, but instead began to investigate the woman reporting the rape (now defendant) for stalking and harassment of the man she’d accused. When questioned, that man said he’d been receiving up to 30 calls and text messages daily from defendant, but then at some point, the sender’s phone number changed, but the messages continued. The detective believed defendant was using a third-party app to make her phone number appear altered.

Defendant was charged with six counts of felony stalking and misdemeanor theft and harassment charges. She reportedly demanded he either marry or impregnate her against his will. She was arrested and her cell phone seized. She was also charged several days later with misdemeanor invasion of privacy for violating a protection order. Police obtained a warrant compelling defendant to unlock the phone so they could search it.

As noted by the appellate court, if police need or want access to an iPhone (unlike even a lot of modern computers and other electronic devices), owner cooperation is practically a necessity. To date, there isn’t any U.S. Supreme Court decision that directly assesses whether compelling a person to unlock a phone or provide a passcode is testimonial, which would give it protection under the 5th Amendment.

The court concluded that such information was testimonial and potentially self-incriminating and she would not be required to produce it.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Seo v. State, Aug. 21, 2018, Indiana Court of Appeals

More Blog Entries:

Florida Sealing and Expungement: How a Fort Lauderdale Defense Lawyer Can Help, Aug. 30, 2018, Fort Lauderdale Criminal Defense Attorney Blog