Do You Have to Give Up Your Cell Phone Passcode?

The percentage of Americans who own a smartphone has doubled since 2011. That is an awful lot of change in a very short time. As we mentioned in a previous post, the law does not adapt very well to any kind of technological change. Thanks to the introduction of Cloud storage, most smartphones now have almost infinite storage capacities. Without that four-digit passcode, however, the device is just a piece of plastic instead of a treasure trove of evidence in a criminal case.

This background makes the title question very pressing. Most of the people reading these words own smartphones, and most of them know someone who is, or will be, a criminal defendant. There are almost no cases directly on point. So, how does Illinois law resolve this thorny issue? The answer largely depends on whether you use a Four or a Five.

Cell Phone Passcodes and the Fourth Amendment

This provision applies to searches and seizures. Police officers may not do either one without a warrant or probable cause. Perhaps more significantly, there is also the matter of what constitutes a “search” or “seizure” under the Fourth Amendment. The answer is not as straightforward as you may think.

The Supreme Court actually did rule on this issue recently, albeit in a different context, in 2016’s Birchfield v. North Dakota. In that case, the justices upheld refusal-to-submit laws. These state laws impose criminal penalties, in addition to drivers’ license restrictions, on persons who refuse to provide breath samples in DUI cases. The justices also ruled that authorities must have search warrants to perform blood tests.

So, is a Chicago cell phone passcode more like a breath test or more like a blood sample? Once again, it is difficult to tell.

Surrendering a passcode, much like blowing into a tube, is completely non-invasive. Furthermore, assuming that the passcode is unique, it cannot be used for any other purpose. In Birchfield, the Court noted that once the defendant blows into the Breathalyzer, the sample is destroyed.

Then again, a smartphone is incredibly private. The information it contains could be used in a myriad of ways by a myriad of people. By that reasoning, a passcode is more like a blood test. Arguably therefore, an officer needs a search warrant to compel a person to turn over a cell phone passcode. In fact, during the Supreme Court Case of Riley v. California, in 2014, the court decided that it is unconsitutional for the police to seize information from a cell phone without a warrant.

Cell Phone Passcodes and the Fifth Amendment

All the discussion above might be entirely irrelevant if a passcode is a Fifth Amendment testimonial issue. Persons have a right not to give incriminating testimony. That testimony can be non-verbal, such as O.J. Simpson trying on a pair of rubber gloves in open court or trying on a bloody shirt to see if it fits. Giving up a cell phone passcode sounds a lot like the gloves. If the person gives that information, the consequences could be far-reaching indeed.

Timing is an issue here, as well. The Fifth Amendment only kicks in when the Illinois prosecution reaches a “critical phase.” Courts have fairly consistently defined that point as the commencement of formal, legal actions. Even more significantly, courts have fairly consistently declined to extend Fifth Amendment protections to earlier stages, such as the aforementioned Breathalyzer test.

Go With Experienced Lawyers

The interplay between cell phones and search warrants is incredibly complex. For a confidential consultation with an experienced criminal defense attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Jay Wennington)