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Cell Phones and Police Searches

Imagine the police have seized your cell phone, obtaining a search warrant for the data stored on the device. In their attempt to retrieve the data, they claim you must provide the password to the phone.

Do you have to comply with their request and provide the password?

This question keeps arising in the digital age: can police seize your cell phone during a warrant-based search and compel you to provide the password? The valid search warrant, based on probable cause, allows the state to search the phone, but what about information that the owner knows to be stored in the phone?

This situation brings into focus whether a valid search warrant compels the owner of a digital device to disclose information stored on the device. We agree with our good friend, local criminal defense lawyer Neil Rockind, that the answer is no.

Rockind has a client that was subjected to a search warrant of his cell phone. When the police demanded that his client disclose the password, Rockind declined asserting his client’s Fifth Amendment right to be free from compelled self-incrimination.

A well-known case, United States v Kirschner, a 2010 case from the federal district court in Detroit, holds that an accused is protected from producing testimonial evidence against himself; from being forced to, “reveal his knowledge of facts relating him to the offense.” Nor can the police force an accused to, “share his thoughts and beliefs with the government.”

Applying the SCOTUS holding in United States v Hubbell -that a suspect cannot be forced to provide detailed documents in response to a subpoena document request- Rockind analogizes the document request to the request for the cell phone password.

We will track Neil’s case to see whether his client’s constitutional challenge to the state’s demand for the password prevails. Meanwhile, if you or a family member are involved in such demands from the police, consider retaining legal counsel prior to giving-up your password.

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