In our last post, we discussed when the police can search the contents of a cell phone belonging to a suspect. We referenced a case where the police illegally searched a password protected cell phone that had been abandoned by the defendant. Since it involved an abandoned cell phone, that was a strong statement that the police are not generally going to be able to search a password protected cell phone without a search warrant or specific consent from the owner of that cell phone. Given that cell phones these days often contain a wealth of information that can be used by the state to incriminate a defendant, it is important for people to protect their cell phones and make sure they understand the Constitution affords them a right to privacy in the information contained in that cell phone.
This post refers to another case near Jacksonville, Florida that looked at this issue of when the state can access the information in a defendant’s cell phone. In this case, the defendant was arrested for using the camera on his cell phone to violate the privacy of women in public. He was arrested for video voyeurism. After he was arrested, the state requested consent to search his cell phone to look for pictures and videos of the victims. The defendant refused. The police appropriately applied for a search warrant for the cell phone. Through their investigation and interview with the defendant, they obtained sufficient information about the cell phone to adequately identify it for a search warrant application. It is unlikely that a judge would grant a search warrant application for a generic cell phone belonging to the defendant that the police knew nothing about and did not have in their possession. Because the police had information about the specific cell phone allegedly used in the crime, the search warrant was granted.
The police located the cell phone, but it was protected by a password and the defendant would not provide it, as was his right. The state then filed a motion to compel the defendant to provide the pass code for the cell phone. The criminal defense lawyer argued that a defendant has a constitutional right against self incrimination, therefore the defendant could remain silent about all aspects of the case, including his cell phone pass code that could lead to the discovery of incriminating evidence.
The court noted that the Fifth Amendment right to remain silent is not absolute. It essentially protects a defendant or suspect from being forced to give incriminating information that is “testimonial” in nature. “Testimonial” communications are those that relate to a factual assertion. Other courts have described testimonial communications as those that involve the contents of the defendant’s mind to explicitly or implicitly communicate some statement of fact. Applying those definitions, the court found that a defendant’s pass code is not testimonial because the pass code is merely content with no other value or significance. It was not an acknowledgement that the phone contained incriminating information or incriminating information on its own. Providing the pass code for the cell phone did not betray any specific knowledge about the alleged offense.
As a result, the defendant was forced to provide his pass code so that the state could access the photographs, videos and other relevant information in the cell phone, and then use that information against the defendant in court.