Do You Have to Surrender Your Phone to Law Enforcement?
In recent months, law enforcement agencies around the country have been searching the phones of American citizens, and people who are just visiting or entering the country. Today, smartphones contain nearly all of a person’s personal information, including their banking and credit card details. So, when state or federal law enforcement officials ask a person for their phone, it raises an important constitutional and legal question. Are you legally required to surrender and unlock your phone to law enforcement when asked? Below, our San Diego search and seizure lawyer explains in further detail.
How Does the Constitution Protect You?
Under the Fourth Amendment, all American citizens are protected from unreasonable search and seizures. Generally speaking, this means that law enforcement officials must obtain a warrant before they search your smartphone. The Supreme Court recognized that people store a vast amount of personal data on their smartphone in the case Riley v. California and determined that law enforcement agencies must obtain a warrant before searching someone’s personal device.
Another constitutional provision, the Fifth Amendment, also protects individuals from self-incrimination, which becomes relevant when law enforcement asks someone to unlock their device. Courts have debated whether providing biometric authorization, such as facial recognition or a thumb print, or even just a passcode, constitutes self-incrimination. Some courts have determined that entering a passcode is a form of testimony and so, is protected under the Fifth Amendment. However, using facial recognition or a thumb print may be treated somewhat differently.
When are You Required to Unlock Your Phone?
There are certain circumstances in which you may be required to unlock your phone for law enforcement. These are as follows:
- A warrant was obtained: If law enforcement obtained a valid warrant to search your device, you are likely legally required to unlock it. Still, whether you must provide biometric access or a passcode is still a legal issue that is highly contested in the courts.
- Exigent circumstances: Law enforcement officials may not be required to obtain a search warrant if they need immediate access to your device to prevent destruction of evidence, harm, or an offense currently happening.
- Consent: If you provide consent for law enforcement to search your phone, officers can search it legally. However, you are never obligated to consent to any type of search, even when it involves your phone.
It is important to note that if a U.S. Customs and Border Protection (CBP) officer asks to search your phone, you may be required to. CBP officers have greater authority to search smartphones and other devices under the border search exception.
Contact Our Search and Seizure Lawyer in San Diego Today
If you have been charged after a search of your phone, or you are facing legal consequences for refusing to consent to a search, you need legal help. At Anthony Z. Vargas, Esq., our San Diego search and seizure lawyer can advise on the facts of your case, ensure your rights are protected, and give you the best chance of a favorable outcome. Call us today at 858-859-1224 or contact us online to schedule a consultation and to learn more about how we can help.
Sources:
law.cornell.edu/wex/fifth_amendment
law.cornell.edu/wex/fourth_amendment
