During a criminal investigation, can the police make you turn over your password to your phone? The answer to that question depends on where you live, as the courts are divided on the answer to that question. This makes the question ripe for clarification by the United States Supreme Court.
“I Plead the Fifth!”
What exactly is the issue here? It all hinges on the Fifth Amendment’s right against self-incrimination. The fifth amendment to the United States Constitution contains a handful of very important safeguards, including the right against self-incrimination. To this end, it says no person shall be compelled to be a witness against his or herself in any criminal case. Many people know this through the expression, “Plead the Fifth.” Generally speaking, this means a person cannot be forced to answer questions by the police when in custody or by anyone in court about content having a tendency to incriminate his or herself.
However, a person’s act of producing documents or information may have a testimonial aspect to the extent the person’s act of producing the documents or information gives the police information they do not already have about the existence, custody, or authenticity of the information produced by the person.
For instance, suppose the police believe a suspect has incriminating documents stored in a safe they cannot open and therefore, they ask the court to force the suspect to open the safe. Suppose further the police cannot show the suspect knows the combination to the safe and the suspect is claiming the safe is not theirs but instead, a friend’s or roommate’s. In that case, the act of opening the safe would function as an admission the suspect owns the safe and the documents inside of it. This fact alone could be incriminating regardless of the contents in the safe.
Conversely, if the government can show the suspect knows the password and which specific documents are in the safe-maybe through a previous admission-then forcing the suspect to open the safe would be constitutionally sound. In this situation, there is no Fifth Amendment protection because the police already knew the person knew the password of and contents within the safe. Therefore, the act of producing documents here is not testimonial in nature. Remember, the Fifth Amendment is a right against self-incriminating testimony, not a right against the self-incriminating production of documents. The production of information or documents itself has Fifth Amendment implications only when the act has a testimonial effect.
But what if the government can show the suspect knows the combination but does not know which documents are in the safe? This is precisely the issue presented to us with the modern day smartphone given its amazing capacity for the storage of information. The smartphone has indeed muddied the waters here, which is why the courts are divided on the issue.
Two Opposite Theories
There are two theories concerning the testimonial nature of forcing an individual to provide the police with their phone’s password.
One theory says only the act of unlocking the phone itself is testimonial and once the phone is open, it contains whatever information it contains. In other words, the police get the information in the files directly from the files themselves-no different than if the police found paper files or documents on a suspect’s desk. So the contents are not compelled testimony and are fair game for seizure, inspection, and use by the police and government to use them in a criminal prosecution.
Another theory says it depends on what the police know-if the police are looking for specific files they already know exist on the phone, there is likely no Fifth Amendment problem. But if the police do not know what specific files or information they are looking for and the request is more of a fishing expedition, then the Fifth Amendment should protect the individual from being forced to unlock his or her phone. This is because here, the act of providing the cell phone’s password gives the police access to information they wouldn’t otherwise have.
This second theory was recently adopted by the Indiana Supreme Court in the case of Seo v. Indiana, which can be accessed here. The court ruled the Fifth Amendment permitted a woman accused of stalking to refuse to unlock her iPhone for the police because the act of unlocking the phone could give police access to potentially incriminating data on the phone.
Specifically, the Seo Court relied on the United States Supreme Court decision of United States v. Hubbell (which can be accessed here), which established the act of producing documents implicitly communicates that the documents can be physically produced, exist, are in the suspect’s possession, and are authentic. The act of producing a password to a smartphone does just that, according to the Seo Court. In that case, the state could not show law enforcement knew what was on Seo’s phone. The Court held, “In sum, law enforcement sought to compel Seo to unlock her iPhone so that it could then scour the device for incriminating information. And Seo’s act of producing her unlocked smartphone would provide the State with information that it does not already know. But, as we’ve explained above, the Fifth Amendment’s privilege against compulsory self-incrimination prohibits such a result.”
The Indiana Supreme Court’s decision is a step in the right direction. It prevents a person from having to turn over their smartphones and give the state unfettered access to an abundance of sensitive, personal, and incriminating information the state does not know exists prior to the search. However, many courts have adopted the first theory and permit the state to force individuals to hand over their private information and incriminate themselves. This split in court decisions over the country hopefully paves the way for the United States Supreme Court to weigh in and clarify what Fifth Amendment protections, if any, apply under these circumstances.