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Cell phones, password protection, and constitutional rights, P.2

In our last post, we looked at a recent Florida case in which it was ruled that police officers acted illegally by failing to obtain a warrant prior to searching a password protected cell phone dropped by a criminal suspect. The case shows that tapping into a password protected cell phone for information constitutes a search within the meaning of the Fourth Amendment, at least in some circumstances.

What, though, when police have obtained a search warrant but are unable to crack a cell phone’s password protection? Do they have the right to obtain that information from the criminal suspect? This was the question involved in another recent Florida case. For his part, the suspect refused to provide the password, citing his Fifth Amendment protection against self-incrimination. 

Ultimately, it was ruled that the man could be forced to give up his password on the basis that the Fifth Amendment was irrelevant and that there was no difference between the court finding probable cause for the search and requiring the suspect to help the government examine the contents of his phone. The long and short of it, according to the court, is that the Fifth Amendment does not prevent criminal defendants from having to provide law enforcement with their electronics passwords.  

The ruling is potentially significant, both in terms of how it could affect how law enforcement searches of electronic devices and how consumers use their devices, though it isn’t yet clear exactly how much impact the ruling will have given the fact that other states have gone in the opposite direction in recent cases.

For anybody who is facing criminal prosecution in a case involving electronic device searches, of course, it is certainly important to work with an experienced attorney to ensure one’s constitutional rights are protected and the government is held accountable for overreach. This is particularly important as the law is continually changing to account for changing technology. 

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