Police need a warrant to search a cellphone, but the issue of whether law enforcement can compel someone to divulge a passcode has not been resolved. According to Apple News the Indiana Supreme Court heard arguments on the issue and the state supreme courts in Pennsylvania and New Jersey may soon address the issue.
[https://apple.news/A8OwSxUtASey41s7HmTm8HQa] Police are increasingly relying on social media as a way to investigate suspects. Access to an accused’s cell phone can often provide incriminating evidence that is difficult to refute. So police argue that obtaining a cell phone’s passcode is essential for police work.
Passcodes necessary for Police Work
Police agencies have sought assistance from hackers or technology firms to unlock cell phones. But manufacturers strive to produce phones that are resistant to hacking and not all police agencies have access to resources that can assist them unlock phones. So police argue that forcing suspects to unblock their cellphones is necessary for them
to investigate crimes. The Unites States Supreme Court has recognized the significant privacy concerns involved in allowing a warrantless search of cell phones.
Privacy Concerns for Cell-Phones Dwarf those for Physical Objects: United States Supreme Court
The United Supreme Court ruled that police cannot search an arrestee’s cell phone data under the search incident to an arrest exception which allows for a search to be made to prevent the destruction of evidence. The Court stated that privacy concerns with data stored on an arrestees’ cell phones dwarfed those involved with physical objects. Unlike other physical objects, cell phones have an immense storage capacity, gather many different types of private information, and convey more information than previously possible, and phones can access information not stored on phones themselves. In this case, the officers expressed concerns about the possibility of remote wiping of data or of encryption of data when phones are “locked.” The Court held that those broad concerns were distinct from concerns about arrestees concealing or destroying evidence within their reach. Law enforcement concerns of acts by third parties or normal operation of phones’ security features, could be addressed by some technologies available to them to counteract these concerns.
Any remaining issues could be addressed in particular cases by responding in a targeted manner to urgent threats of remote wiping or by disabling phones’ locking mechanism in order to secure the crime scene, the Court reasoned. See: Riley v. California, 573 U.S. 373, 134 S.Ct. 2473 (U.S.Cal.,2014)
Request to enter passcode after request for counsel violates Fifth Amendment
During Court Martial proceedings, an accused’s right against self-incrimination was violated when when while subject to custodial interrogation he was asked to enter his phone’s passcode. Agents asked the accused for his passcode while he was in commander’s office, which occurred less than two hours after he had been placed into custody at military police station, where he originally invoked right to counsel. Here, government agents were not merely requesting consent to search, but were asking accused to provide them with privileged incriminating information. See: United States v. Mitchell, 76 M.J. 413 (U.S. Armed Forces, 2017)