When police arrested a Florida man for marijuana trafficking violations, they allegedly discovered possibly incriminating information on the defendant’s cell phone. Since the phone was locked, officers demanded that the defendant release his password, but the defendant refused. While police are required to get a warrant to search a cell phone, it’s not clear whether or not they have the power to force someone to give up their password. There varying rulings in jurisdictions from South Carolina to California.
Several days after the defendant in Florida was released on bail, a warrant was put out for his cell phone and password. When confronted by police, the defendant again refused to give up his password and was subsequently arrested for contempt of court. He served 44 days in jail until most of his charges were dropped for a minor pot misdemeanor. Many people would not spend time in jail to avoid giving up a password, but others are refusing to let law enforcement invade their private lives.
Courts disagree about whether the Fifth Amendment to the Constitution protects defendants from having to give up their cell phone passwords, including fingerprints and other biometrics. There are cases pending throughout the appellate court system that could end up creating a precedent sometime in the future.
When police demand a password from an individual, that person may benefit from legal representation by an attorney who practices criminal defense law. A lawyer might evaluate the circumstances of a warrant and help their client decide whether or not complying with the request is in their best interests. This decision depends on the jurisdiction and recent decisions in appellate courts. Whether or not state or federal law enforcement authorities are involved will also play a big factor.