The Law and You

Penny Clute

Can the police make you unlock your cellphone?

You know all those police shows where they refer to someone “getting off on a technicality?”

Those words always make me cringe — because those “technicalities” are valuable Constitutional rights.

On TV or in the movies, the guy who “got off” is always really evil and the storyline makes clear that he is guilty. Therefore, the “technicality” that the judge relied upon to throw the case out seems irrational; it had nothing to do with law-abiding people, but was only a way to let criminals go free.

The lesson from those stories seems to be that, if you are innocent, you have nothing to worry about.

For example, if you have nothing to hide, you don’t need to worry about the protections of the 4th Amendment against “unreasonable search and seizure.”

If you did nothing wrong, you don’t need the 5th Amendment’s right “against self-incrimination” or the 6th Amendment right to a lawyer, do you? Only criminals who have stolen, raped or killed need those protections.

Not so.  

ABOUT PRIVACY

What if the police are suspicious of you, but don’t really have evidence that you committed a crime?

What if their suspicions seem to be based on where you are from or the color of your skin? What if you are crossing a border, or are at an airport for an international flight?

What if you simply think you don’t have to answer their questions?

Then, suppose the officers ask you to unlock your cellphone.

They’d just like to see what is on there. Do you have information you consider private? How would you feel if the police saw all your contacts?

Think about your tweets and Facebook posts, the websites you have gone to, the opinions you have expressed, the people you are connected to.

Maybe there is stuff on your phone that suggests you did something wrong or embarrassing. What if it is something different from what the police suspect?

Do you have to unlock your phone and let them see it? What happens if you refuse? What are your rights?

SEARCH WARRANT REQUIRED

In 2014, the United States Supreme Court in Riley v California unanimously ruled that the 4th Amendment to the United States Constitution applies to cellphones, meaning that we do have a “reasonable expectation of privacy” in these mini-computers.

Even if the police have seized your phone, they cannot access its contents unless they have probable cause to believe you have committed a crime and obtain a search warrant from a judge.

They cannot go on a “fishing expedition” in your phone to try to find evidence; they must have probable cause of criminality before opening it.

The only legal way to open the phone without a warrant is if you consent. If they ask you to unlock it, and you do so, then they can look through everything.

LITTLE CASE LAW

Not only do you have the 4th Amendment right against unreasonable searches, you have the 5th Amendment “privilege against self-incrimination,” meaning that you cannot be compelled to testify against yourself.

The police cannot make you give up these rights, but they hope you will choose to do so. They need your help to get in.

Whether law enforcement can require people to give up their passwords, or to use biometric means — like fingerprints or facial recognition — to unlock their phones is an issue only a few courts have dealt with so far.

I could not find any New York cases. Cases elsewhere go in both directions.

In Florida, a man stopped for a traffic violation spent 44 days in jail on a contempt charge for refusing to unlock his phone.

The drug and weapon charges brought against him were dropped, the contempt charge dismissed, and the police never accessed his phone.

But he obviously paid dearly for asserting his rights.

MORE TO COME

A federal court in California ruled that the 4th and 5th amendments are violated if the police require a person to unlock their phone.

This is so, the judge ruled, whether the phone opens with a passcode or with biometrics — “all logins are equal.”

Right now, the digital developments are ahead of the law. There is certainly more to come.

Penny Clute was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.