September 10, 2019 | By analyticsFirst of all, this is a great question. I am giving no advice in this article, if cops want your passcodes or want to talk to you then go talk to a lawyer.
There are quite a few things that need to be considered to even possibly give an answer to this question. Did you voluntarily give your phone over? Do the cops have a warrant? Did you give the officer an unlocked phone? Does your phone have face id as the code? Does your fingerprint unlock your phone? Does your phone require a pin? Is it six digits or four digits?
The answers to all of these questions can impact the answer to your question.
If you are arrested for a crime and you have a phone on you, then the cops will likely seize your cell phone. Back in the day cops would just go through your cell phone when they took it from you.
The law has, however, changed. Without a warrant, the cops cannot go through your phone. If, however, you give them your phone, access to the phone, and your consent to search the phone. they can magically go through the phone and document every piece of bad evidence in that thing! Under no circumstances should you voluntarily relinquish your cell phone, your passcodes, or its content to law enforcement. Just remain silent. The cops need a warrant and you are not obligated to do their job for them.
This section considers whether a suspect must hand over a numerical passcode to a locked phone for which law enforcement has secured a search warrant.
My answer is no. Now, if you refuse to give the passcode it is going to upset cops and prosecutors. But, who cares, we have constitutional rights and by God, we are going to use them. The concern is, that after refusal, the cops secure a court order ordering you to deliver the passcode and if you still refuse to comply, then the court could hold you in contempt.
I am of the legal opinion that our right to remain silent absolutely prevents the court from issuing any such order requiring you to incriminate yourself.
This issue is being considered by courts in Indiana right now. The trial court issued an order requiring the suspect to provide the code to her cell phone or be held in contempt. She invoked her rights and was held in contempt.
After that, she appealed the contempt. The Indiana court of appeals ruled in her favor saying that compelling her to reveal her code under threat of contempt and imprisonment violated her fifth amendment rights.
These technologies are even newer and the law (slow as always) is, of course, lagging behind. You certainly shouldn’t volunteer it and should remain silent as always. Of course, if the cops have asked you to come unlock your phone you need to call your lawyer and let them handle it.
I am concerned that Georgia courts are going to take the wrong position on biometric logins (face id and fingerprint) and hold that because the suspect isn’t forced to do or produce anything (like giving up a passcode) that the fifth amendment doesn’t apply.
The government (unfortunately) has strong arguments that your fifth amendment rights don’t apply in the context of producing fingerprints. We, however, will fight the good fight against government intrusion into our lives.
I am holding out hope that courts will rule in the favor of freedom and a federal judge in California boosted my hope earlier this year. Judge Westmore wrote that biometric login mechanisms are not the same as physical evidence and courts/law enforcement cannot force a suspect to give face id or fingerprint login.
This is a win for suspects, but it is a decision from a relatively low-level judge and bears little weight on what Georgia will do. We will have to wait and see what route Georgia takes. The best thing to do is to contact an attorney if cops want this information so that your lawyer can make the required arguments.
Don’t voluntarily hand your unlocked phone over to the cops. There is a great chance that you will create evidence against yourself and very little chance that you will help yourself in any way. If they have a warrant, they will get your phone. Don’t do their job for them. If you give consent to search your phone then you gut many of your attorney’s potential arguments.
The answer depends on two main things. 1) Do the cops have a warrant for your phone? 2) Do they have an order for you to submit biometric information or your passcode?
Regardless don’t fight this government intrusion alone. Get in touch with someone who can help you out and defend your rights.
J. Ryan Brown Law, LLC
J. Ryan Brown Law, LLC
