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Phone Passcodes

calamity

calamity

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Interesting cases sweeping the nation: Cops demanding passcodes and lower courts upholding the warrants to force people to hand them over. Of course, you can still refuse--cops have not found a way to read our minds yet :)

Give up your password or go to jail: Police push legal boundaries to get into cellphones

He paid a steep price, spending 44 days behind bars [for refusing to give up his passcode] before the THC and gun charges were dropped, the contempt order got tossed and he pleaded guilty to a misdemeanor pot charge. And yet he regrets nothing, because he now sees his defiance as taking a stand against the abuse of his rights.

As police now routinely seek access to people’s cellphones, privacy advocates see a dangerous erosion of Americans’ rights, with courts scrambling to keep up.


While courts have determined that police need a warrant to search a cellphone, the question of whether police can force someone to share a passcode is far from settled, with no laws on the books and a confusing patchwork of differing judicial decisions. Last month, the Indiana Supreme Court heard arguments on the issue. The state supreme courts in Pennsylvania and New Jersey are considering similar cases.
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Very interesting.
 
They would be bored outta their gourds if they looked at my phone...:2razz:
 
As more is done via a cell phone, the more interest Law Enforcement will have in limitless searching what one does on a cell phone.

Unfortunately, in terms of both Constitutionality and Law Enforcement, there is no middle ground.

If the courts allow Law Enforcement to coerce someone into giving a phone pass code, then the mechanism is heavily tilted to Law Enforcement to do anything they want with what they can see. Not just contacts, texts, pictures and the norm but potentially access to Social Media, Mobile Banking Apps, the works. Law Enforcement would be empowered to go in and use anything they wanted even if unrelated to the crime but weaponized anyway in the typical Law Enforcement mentality of criminalization of anyone they encounter at all costs. If the courts reject those calls by Law Enforcement, then the mechanism is heavily tilted towards the suspect in whatever crime. These complications have impacted everyone from Cell Phone manufactures, to Cell Services, to those who build tools to hack into Cell Phones.

No matter the decision, the tilt one way or the other may be unrecoverable.

That said, I think the Constitution has to win out here in terms of coercion into self incrimination at the hands of Law Enforcement.
 
The reason more and more phones have the ability to quickly and easily wipe themselves. All countries need better protection of privacy rights.
 
I recall a federal judge holding a person in jail for refusing to give the password to encrypted filed in a child porn case.

It is a complicated question. If you have a safe in your house and there is a valid search warrant issued for the contents of the safe, do you have to tell the police the combination?

In my opinion, no. That is testifying against yourself.

It also can be complicated if added to this is the claim that the cell phone contains communications with your wife (100% privileged), your lawyer (privileged) and your priest (privileged). It is NOT just a matter of whether the police then couldn't used such evidence in trial - but whether you have a right for NO ONE to know that information, whether or not any illegality was involved.
 
OrphanSlug said:
As more is done via a cell phone, the more interest Law Enforcement will have in limitless searching what one does on a cell phone.

Unfortunately, in terms of both Constitutionality and Law Enforcement, there is no middle ground.

If the courts allow Law Enforcement to coerce someone into giving a phone pass code, then the mechanism is heavily tilted to Law Enforcement to do anything they want with what they can see. Not just contacts, texts, pictures and the norm but potentially access to Social Media, Mobile Banking Apps, the works. Law Enforcement would be empowered to go in and use anything they wanted even if unrelated to the crime but weaponized anyway in the typical Law Enforcement mentality of criminalization of anyone they encounter at all costs. If the courts reject those calls by Law Enforcement, then the mechanism is heavily tilted towards the suspect in whatever crime. These complications have impacted everyone from Cell Phone manufactures, to Cell Services, to those who build tools to hack into Cell Phones.

No matter the decision, the tilt one way or the other may be unrecoverable.

That said, I think the Constitution has to win out here in terms of coercion into self incrimination at the hands of Law Enforcement.
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Yes, it strikes me as primarily a Fifth Amendment issue not one of the Fourth.

If a suspect willingly gives a cop his passcode for reason A and the search discovers unrelated child porn in his browsing history, that suspect clearly self-incriminated. And, the discovery of additional unrelated evidence is admissible.

IMO, the key is to not voluntarily hand it over, and demand that the courts force you to. Then, at least, you will have Fifth Amendment grounds for appeal should you need one. However, if you voluntarily turn over your code, there is no legal standing for an appeal.
 
calamity said:
Yes, it strikes me as primarily a Fifth Amendment issue not one of the Fourth.

If a suspect willingly gives a cop his passcode for reason A and the search discovers unrelated child porn in his browsing history, that suspect clearly self-incriminated. And, the discovery of additional unrelated evidence is admissible.

IMO, the key is to not voluntarily hand it over, and demand that the courts force you to. Then, at least, you will have Fifth Amendment grounds for appeal should you need one. However, if you voluntarily turn over your code, there is no legal standing for an appeal.
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It may be a matter of both.

4th Amendment in terms of identification in advance of what a warrant claims Law Enforcement can see on someone's cell phone, and 5th Amendment in terms of being coerced into being a witness against themselves (i.e. what is really on the phone.)

Lets assume the same scenario for the OP traffic stop for a moment, one that escalates into drug possession and weapons charges. A text prompts a screen alert "did they find it." Law Enforcement then obtains a warrant to know who that contact is, but decides to go looking around the phone and finds evidence of any other crime. Additional drug charges, perhaps the moron was dumb enough to film themselves stealing something or breaking into an establishment. By the terms of the Warrant all of that was not in scope of the search and a clever defense attorney could argue these points, that may or may not work in dealing with those new charges.

The slippery slope here is the warrant that compels someone to hand over a pass code to that cell phone, nothing really stops law enforcement from doing something with whatever they obtain off of that phone even if charges are not directly filed because of whatever 'evidence' it may be.

In principle a Warrant has to be specific as to what someone is looking for, where it should be, and why. It cannot be "I want to search x address for whatever I find wherever it may be in whatever condition it may be." A Warrant that forces an owner to unlock a device presumably has the same standard and cannot be "I want to search a phone locked by a pass code for whatever charge I can determine based on what I find."

We are assuming that in the OP example we have at least one means to turn a crime into multiple additional charges just because of an unlocked phone, and that means a probable decision the Supreme Court may end up with on the extent Law Enforcement can coerce someone into additional charges unknown to Law Enforcement in advance by having access to anything off of a cell phone.
 
OrphanSlug said:
It may be a matter of both.

4th Amendment in terms of identification in advance of what a warrant claims Law Enforcement can see on someone's cell phone, and 5th Amendment in terms of being coerced into being a witness against themselves (i.e. what is really on the phone.)

Lets assume the same scenario for the OP traffic stop for a moment, one that escalates into drug possession and weapons charges. A text prompts a screen alert "did they find it." Law Enforcement then obtains a warrant to know who that contact is, but decides to go looking around the phone and finds evidence of any other crime. Additional drug charges, perhaps the moron was dumb enough to film themselves stealing something or breaking into an establishment. By the terms of the Warrant all of that was not in scope of the search and a clever defense attorney could argue these points, that may or may not work in dealing with those new charges.

The slippery slope here is the warrant that compels someone to hand over a pass code to that cell phone, nothing really stops law enforcement from doing something with whatever they obtain off of that phone even if charges are not directly filed because of whatever 'evidence' it may be.

In principle a Warrant has to be specific as to what someone is looking for, where it should be, and why. It cannot be "I want to search x address for whatever I find wherever it may be in whatever condition it may be." A Warrant that forces an owner to unlock a device presumably has the same standard and cannot be "I want to search a phone locked by a pass code for whatever charge I can determine based on what I find."

We are assuming that in the OP example we have at least one means to turn a crime into multiple additional charges just because of an unlocked phone, and that means a probable decision the Supreme Court may end up with on the extent Law Enforcement can coerce someone into additional charges unknown to Law Enforcement in advance by having access to anything off of a cell phone.
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Absolutely, the phone could lead to many unrelated areas and people. That is clearly way beyond the scope of a traffic stop where some pot was found in the ashtray.
 
Thoreau72 said:
Brave individuals are few and far between. Not many are willing to put their ass on the line to stand up for the law.
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My answer will be simple. "I won't even give my wife my passcode. Get a warrant, copper."
 
On the same principle, why couldn't the police get a warrant for physical evidence, and then the judge order "tell the police where you threw away the gun at," with the accused never admitting having the gun. The perfect Catch-22.

If he refuses, he is jailed indefinitely for contempt. If he didn't throw any gun away, he is indefinitely held in contempt if the judge declares he doesn't believe him. If he turns over the gun he is convicted. So no matter what he does, he is in jail.
 
I posted this in the doorbell thread too:

I read something last week that kind of freaked me out, maybe everyone else already knew this: they can now track your movements with your phone. I knew they could 'find' your location but didnt realize that location also includes your entire path and time along that path.

Police said phone records show Fotis Dulos' cell phone left his Farmington home in suburban Hartford on May 24 and traveled to Fore Group, a company he owns in Farmington. The phone remained on the property from 1:37 p.m. until about 3:38 p.m. before returning to Dulos' home, according to documents. Farmington is about 70 miles away from New Canaan.

Missing Connecticut woman's blood found on items dumped in trash receptacles, authorities say - CNN
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I think this is really disturbing...just by carrying your phone when you went somewhere in the past, they can tell where you went and what time, all along your travels.
 
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