Almost everybody carries a mini computer in their pockets these days in the form of a cell phone – and those little digital devices carry an enormous amount of data and personal information, including photographs, messages, financial records, internet history and location data.
As digital evidence becomes increasingly important in criminal investigations of all kinds, a lot of people want to know whether the police can force them to unlock their phones. The answer to that question is not always simple.
Warrants and phone searches
The rules regarding digital devices continue to evolve, but the most significant ruling on the issue is Riley v. California in 2014 by the United States Supreme Court. Thanks to that case, the police are broadly required to obtain a warrant before they search through the contents of a cell phone.
Obtaining a warrant for a cell phone’s contents, however, is not the same as forcing the owner to unlock it. This is where the rules get complicated. In general:
- If a phone is protected by a passcode or pattern lock, courts are more likely to find that forcing someone to reveal or enter that information raises Fifth Amendment concerns because the password exists in the person’s mind and may be considered testimonial communication against their self-interest.
- If a phone uses biometric security features such as a fingerprint or facial recognition, some courts have allowed law enforcement officers to compel access because biometric data may be treated more like physical evidence rather than testimonial communication.
That means that if you are concerned about maintaining your privacy, a passcode or pattern lock is ultimately more secure than using your fingerprint or facial ID.
Consent can change everything
One of the most important issues during police encounters is consent. People often feel like they have no choice but to comply immediately with every police request, but consenting to a phone search may significantly affect a criminal case later.
If you voluntarily unlock a phone or give police officers or detectives permission to search it, prosecutors may later argue that the search was lawful even without a warrant.
If you are under investigation or under arrest for a serious offense and the police want to look at your phone, the wisest thing you can do is to invoke your right against self-incrimination and ask for an attorney.
