CAN THE POLICE MAKE YOU GIVE UP YOUR PHONE PASSWORD?
Cell phones these days do more than just call your friends and families. They’re a virtual blueprint of our daily lives constantly recording in our pocket. Think about it. On your phone there’s a record of the places you’ve been, people you call, people who called you, websites you’ve visited, and emails you’ve received, to name just a fraction of the personal information on your smartphone. Like it or not, who you are and what you do is being recorded in real time. Who cares?
The police do.
Cops are people. They have smartphones just like everyone else. They know what can be stored and found on phones, and more importantly, they want it. Wouldn’t you if you were investigating a crime? Photos, phone history, internet searches. All of this is a potential goldmine for an investigation against you for a suspected crime.
They also know about the first step to getting into a phone is the passcode screen.
Like your rights under the constitution, technology is worthless unless you use it. More specifically, protect it. But when you are under arrest, wanting to get out of those handcuffs and just go home, should you give up your password? ABSOLUTELY NOT. Try again because even if you do that, you’re still going to jail. You’re still going to be charged. You’ve just made it much harder to beat your case. Good job. Don’t do that.
But can the cops make you give up your password? What if they get a warrant? Can you still refuse to give up your password? What if they can’t hack the password even with this warrant? Can they make you give them the code? Worse, can they hold you in contempt if you still refusing, landing you in jail again?
For now, Illinois law says: NO.
Warrant or no warrant, you have something bigger than the cops and
People v. Spicer-2019
That’s why Michael Spicer, a Rock Island County man suspected by police of being a drug dealer, stayed a suspected, not convicted, drug dealer. He refused to give up his smartphone password. He fought the law and he won. How? Why?
Mr. Spicer had the misfortune of being the front seat passenger in a car pulled over for a traffic stop. After a drug dog alerted on the vehicle during an open air sniff search, the police searched the vehicle and found 20 small baggies of cocaine & a scale with cocaine residue inside a backpack on the front passenger side floor. Being the person sitting in the front seat, the police arrested him. They found a cell phone on Mr. Spicer during his arrest. While he acknowledged being the owner of the cell phone, he refused to provide the password to unlock the phone. Suspecting the phone contained “potential evidentiary value,” the cops seized the phone and applied for a court ordered search warrant for the cellphone.
What “potential evidentiary value” did the police think was “probably” on the cell phone? The application for the cell phone’s search warrant alleged that drug traffickers commonly use their cell phones, specifically the GPS and map applications, to further their drug trafficking. The Court found probable cause to issue the search warrant, apparently overlooking the fact that everyone, including your grandma & not just drug traffickers, use their phones for that exact same purpose in the exact the same way.
The warrant allowed the police to search the cell phone for records or call logs, text messages, multimedia messages, instant messaging communications, voicemail, e-mail, any other messaging applications, phonebook contacts, videos, photographs, internet browsing history, map browsing history, and GPS data for a one month period.
Having secured a warrant, a police technician attempted to gain access to the phone. The police technician couldn’t get past Mr. Spicer’s passcode screen. Basically, he couldn’t do jack with it. So the State tried to make the court order Mr. Spicer give the cops his smartphone passcode. Thankfully, the trial judge & then the Third District Appellate Court wasn’t buying it.
Nor was the US Constitution. The 5th amendment guarantees a person cannot be compelled to testify or give evidence against himself or herself in a criminal case. U.S. Const. Amend. V. But it’s not quite so simple. You can’t just go claiming the 5th amendment in every and all circumstances.
- You have to be at risk of/being investigated for a possible crime
- It’s all or nothing- you can’t answer some questions and plead the 5th on others
- The questions and information sought requires the use of the “contents of your own mind.” United States v. Hubbell, 530 U.S. 27, 43 (2000).
In Mr. Spicer’s case, the Illinois Third District Appellate Court found that giving up your passcode qualifies as government intrusion into the “contents of your own mind.” To put it more plainly, it wasn’t really the passcode the police wanted, they wanted the information the passcode protected. And in this case, the cops didn’t actually know what was on Mr. Spicer’s phone. They suspected what was on it, but that doesn’t pass the sniff test when it comes to violating your constitutional rights. In law that’s called a fishing expedition. That’s a big
Unfortunately, Mr. Spicer will still face possession of cocaine felony charges, but say goodbye to any chance of his charges being upgraded to possession with intent to deliver cocaine or any narcotics. That’s a victory for him & everyone’s right to privacy & the 5th amendment.
Does Law Enforcement Have the Technology to Get into your iPhone ?
Yes…...but it depends which type of law enforcement you’re talking about.
State and local law enforcement, as seen by the facts in Spicer, ARE NOT able to crack into your smartphone. The Feds, on the other hand, require a more complicated answer.
Remember Edward Snowden? His data leaks in 2013 uncovered proof the United States National Security Agency (NSA) and the British Spy Agency the “GCHQ” could hack through the passcode screen of iPhones, Blackberry, and Android phones. In direct response to this revelation, Apple created new encryption technology making smartphone inaccessible after more than 10 incorrect attempts to unlock the phone.
And such, privacy prevailed over government intrusion. This new technology became quickly tested when a man, who can only be described in modern terms as a pathetic, psychopathic, terrorist decided to massacre 14 people in San Bernardino, CA, in 2015. After he died in a shootout with the police, they recovered his iPhone. Believing his radicalization
Faced with the new encryption roadblocks employed by Apple, the FBI petitioned the United States Federal Court of Central California to order for Apple to provide a backdoor around this encryption so they could access the smartphone’s data. Apple refused & appealed, the public debated, and eventually the FBI bypassed the Court and used an Israeli company to get into the phone before the Court could weigh in. So much for personal privacy protection against the Federal government.
After months of controversy, the issue sunk from the public dialogue. We all kept on using our iPhones and Androids. Sure, the FBI bypassed the encryption, but they failed to create legal precedent allowing the government to force a private party to give up, or legally bypass, their password & cell phone data security. On the other hand, Feds proved they have the ability to bypass iPhone and smartphone encryption passcode screens.
FACE RECOGNITION PASSCODES & FORCED PASSCODES
The iPhone X can scan your face and open your phone. Pretty cool, right? But what if the police held your phone in front of your face to get into your phone, would this violate the 5th amendment? Based on the ruling and language in Spicer, it’s fair to answer: YES. Once again, it’s the information on the phone, not the method of making a person produce a code to access the phone, that causes the constitutional problem.
And what if the Court had decided to make Mr. Spicer give them his passcode. Could they really do that? What if he said, “No, I’m not giving you jack.” Technically, he could be held in contempt by the Court and jailed, but that wouldn’t get the cops the passcode to search the phone. The optics of holding a private citizen in jail for refusing to give up his passcode has the ACLU written all over it.
For now, your smartphones are safe. But the underlying lesson for law enforcement and prosecutors wanting to get into your smartphone is to specifically point out:
- the exact information they believe is on the phone, and;
- a reasonable reason why they think that.
If the police can show through outside evidence that there is reasonable probably evidence is on your phone, the 5th amendment isn’t going to protect you.
So while the cops can’t get into your iPhone or Android legally for now, the Feds have the technology & only one Appellate Court in Illinois has ruled on this question. The Illinois Supreme Court hasn’t weighed in on this yet. Michigan, Florida, the Third Appellate District of Illinois, & the Northern District of Illinois Federal Appellate Court say no, but the law in Massachusetts, Pennsylvania, and Colorado has no problem making you give up your passcode.
If your facing criminal charges in Cook County or any county in Illinois, you need a law firm that keeps up with evolving legal issues confronting the modern criminal defense world. Smartphones are here to stay. In fact, they’re only going to get smarter. These powerful devices interconnect our lives while simultaneously recording them. At Robert Callahan & Associates, we not only know the law, we know how it changes, when it changes, and what those changes mean for you and your rights. Call us at 312 322 9000. And save our number in your cell phone. We want the cops to know you’re talking to us.