The People’s Lawyer

Will a passcode keep the police out of your phone?

On Behalf of | Nov 22, 2021 | Criminal Defense

The police suspect you of committing a crime — and you’re concerned about what they might find on your phone that could incriminate you, whether that’s photos, chats or texts. 

Can a passcode keep the police at bay? Maybe — but it would be unwise to count on it. 

A 44-year old court decision is about all the guidance there is on the subject 

In 1976, a defendant in a tax fraud case tried to argue that he shouldn’t have to give the Internal Revenue Service (IRS) the tax documents that he’d turned over to his attorney because that would be tantamount to self-incrimination. Defendants are, of course, protected against self-incrimination by the Fifth Amendment. 

The IRS argued that the existence and location of the documents was a foregone conclusion, so forcing the defendant to turn them over wasn’t giving the prosecutor anything they didn’t already know. The U.S. Supreme Court sided with the IRS. 

Now, some four decades later, that’s about the only case that speaks to the current issues surrounding cellular phone data — and it’s obviously massively outdated. That’s caused the state courts to pretty much interpret the ruling (and the law) as they see fit, which has created a mess of rules that can vary depending on where you stand. 

Essentially, the odds are high that the police could force you to open a biometric lock on your phone that relies on your fingerprint, iris scan or facial recognition. If you have a passcode, they might be able to force you to turn it over — or they might just get a warrant and use any one of a dozen or so software tools to break into your phone and argue about the legalities in court later. 

When you’re in legal trouble, don’t guess about what evidence the police can obtain from you. It takes experienced guidance to understand how to fully protect your rights in a digital age.