Can Police Force Me to Unlock My Cellphone?
We know that, if you do not consent, police must get a warrant before they can search your cellphone. Once they have a search warrant, though, can police force me to unlock my cellphone?
The answer depends on how your cellphone is locked – although police can force you to unlock your cellphone with a fingerprint or facial recognition, they cannot force you to tell them what the passcode is.
But, that may not matter because police can hack most cellphones to extract the data anyway…
When Can Police Force Me to Unlock My Cellphone?
Police cannot search your cellphone “incident to arrest.” Unless you consent, they must get a search warrant before accessing the contents of your phone – with some exceptions like border searches.
But, once they get a warrant, how do they get into your phone if you aren’t cooperating?
Can Police Force Me to Unlock My Cellphone with My Fingerprint?
Fingerprint technology is commonly used by many people to unlock their cellphones – it’s quick, easy, and can’t be hacked, right?
Well, except someone could forcibly take your finger and unlock your cellphone with it. Can police do that?
They can if it’s authorized by a warrant.
The Fifth Amendment protects us from providing incriminating evidence against ourselves – but a physical fingerprint, like a DNA sample, is not considered “testimonial” by the courts:
The Fifth Amendment, which protects people from incriminating themselves during legal proceedings, prevents the government from compelling someone to turn over a memorized PIN or passcode. But fingerprints, like other biometric indicators—DNA, handwriting samples, your likeness—have long been considered fair game, because they don’t reveal anything in your mind.
Courts have held that police can forcibly take a DNA sample from you – even with a highly intrusive search like a blood draw – if they first obtain a search warrant based on probable cause.
In many cases, a warrant is not even necessary for fingerprints or a blood draw – every person who is arrested is fingerprinted without a search warrant, and the US Supreme Court has also held that it does not violate the Fourth Amendment for law enforcement to collect a DNA sample from every person who is arrested.
Can Police Force Me to Unlock My Cellphone with Facial Recognition?
Although I’m not aware of any court rulings on this yet, it’s clear that, if police can force you to unlock your cellphone with your fingerprints, they can also force you to unlock your cellphone if you are using Apple’s new facial recognition technology.
If all they have to do is hold the phone in front of your face, that’s even less intrusive than forcibly taking your hand and placing it on the phone…
Can Police Force Me to Give Them My Cellphone’s Passcode?
The one thing that probably cannot be authorized by a search warrant is forcing you to reveal the passcode to your phone.
Whether you say it aloud, write it down, or type it into your phone, providing a passcode falls squarely within the Fifth Amendment’s protection against self-incrimination and is “testimonial.”
So, it seems that the only way to protect the contents of your cellphone is to not use facial recognition or fingerprint technology and to use a good old-fashioned numerical passcode, right?
But, wait, can’t they just hack my phone?
Can Police Hack My Phone Even if They Don’t Have the Passcode?
Last year, Apple announced that they would update their phones to allow users to quickly revert to a numerical passcode by pressing the home button five times – supposedly protecting your phone from searches by law enforcement.
That may be useful in situations where non-law enforcement wants to access your phone – an abusive spouse cannot force you to unlock the phone with your fingerprint, for example. An angry cartel boss could cut off your finger and use it to unlock your phone – you may lose a finger, but they won’t get into your phone…
But, can’t police just hack the phone to access its contents?
How Can Police Hack My Cellphone?
In a perpetual game of cat and mouse, technology is developed to hack phones and then technology is developed to prevent phone hacking, back and forth and on and on.
Police can use “brute force” applications to unlock cellphones:
When a phone is locked with a passcode, companies can run “brute force” applications to open it. Irvine, Calif.-based Susteen, for example, has an “SV Strike” program that can uncover passcodes and pattern locks on iPhones or Android phones by running combinations until the right one is identified. But, Susteen director of sales Jeremy Kirby admits, the process can take some time.
On the other hand, if you are proactive in monitoring your phone, whether it is an iPhone or Android, you can set your phone to automatically delete its contents after a predetermined number of unsuccessful login attempts…
There are also settings where you can remotely, manually wipe your phone’s memory – but, don’t do it. I haven’t yet seen a case where this happened, but I would expect an obstruction of justice charge if you attempt to destroy evidence that is in the possession of law enforcement…
What Kind of Information can Police Get from My Cellphone?
If police successfully access your cellphone, they can potentially view (and produce as evidence at your trial):
- Your contacts;
- Text messages;
- Emails;
- Photos;
- Videos; and
- Geographic location data.
Is Your Data Encrypted?
If you are truly concerned about privacy in the contents of your cellphone, you may want to take the additional step of ensuring that your data is encrypted – even if someone hacks your phone and extracts the contents, encryption provides an additional layer of protection that the hackers may or may not be able to crack…
If Police Can Hack My Cellphone, Why Not Just Consent
Do not consent to any government search, ever.
Have nothing to hide? Do not consent to a search – what you don’t know can hurt you. Someone else may have left something incriminating in your car or your home, or unethical police may plant the evidence that they are “looking for.”
If I am pulled over by the highway patrol on the interstate, they give the standard speech about problems with drugs and guns on the highways, and they ask for consent to search my car, my answer is “No.”
Be polite, but do not consent to any government search of your property. Ever.
If you refuse consent, and police hack your cellphone and attempt to use its contents against you, we can file a motion to suppress the evidence based on the unique circumstances of your situation. Maybe we win, maybe we lose, but…
If you consented to the search, we lose that motion. Period.
What is the Best Way to Keep the Contents of My Cellphone Secure?
- Use a numeric passcode, not facial recognition or fingerprint technology.
- Set your phone’s security settings to automatically delete the phone’s data after ten failed login attempts.
- Use a phone or an app that encrypts all data on your phone.
- Do not consent to any government searches, ever.
Criminal Defense Lawyer in Charleston, SC
Attorney Grant B. Smaldone focuses on criminal defense in the Charleston, Georgetown, Myrtle Beach, and Eastern SC areas. There may be Fourth Amendment search and seizure issues in any case that could allow key evidence to be suppressed, including cell phone data that was obtained in violation of the Fourth Amendment.
If you have been arrested in the Charleston, SC area, call now at (843) 808-2100 or email us to talk to a Charleston, SC criminal defense attorney today.
