The issues around law enforcement and mobile phones have been an ongoing challenge for several years, with no firm resolution yet. In California, refusing to unlock your phone after you’ve been arrested is legal in most cases. However, you may be compelled to unlock it under certain circumstances.
At the federal level, both the Fourth and Fifth Amendment offer legal protection from being forced to unlock your phone. Furthermore, a recent decision by a Northern California magistrate has given privacy advocates additional ammunition to fight against unlocking a mobile phone without the owner’s consent.
Fourth Amendment Protections
The Fourth Amendment prohibits searches and seizures without a warrant. A 2014 ruling by the US Supreme Court made it clear that mobile phones are covered by the Fourth Amendment. As it stands now, law enforcement personnel may not search your mobile phone without one of the following:
- The phone owner’s consent
- A valid warrant
- The presence of exigent circumstances (such as the possible destruction of evidence on the phone)
Unless you willingly unlock your phone for the police, or they have a warrant, you can legally refuse to unlock your phone.
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Passcodes, Fingerprints, & Facial Recognition
Another interesting wrinkle in the battle between law enforcement and privacy advocates is over Fifth Amendment protections. The Fifth Amendment provides the right that you cannot be forced to testify against yourself.
In regards to unlocking your mobile phone, if your phone is protected by only a passcode, and not by your fingerprint or facial recognition, many states have ruled that you cannot be forced to divulge the passcode because you would effectively be testifying against yourself.
Fingerprints and facial recognition, however, fall under a different type of law. Your fingerprint and face are classified as biometric data. Courts have long held that the protection provided by the Fifth Amendment does not apply to physical evidence, such as fingerprints, hair and skin samples, or other readily apparent physical characteristics (like your face) that are unique to each person.
What all this means is that if the police have a warrant to search your phone, they can’t force you to tell them the passcode to unlock it. However, they can force you to use your fingerprint or facial recognition.
Mobile Phones And California Law
In 2019, a magistrate in Northern California refused to issue a warrant in a case where the police wanted access to a suspect’s smartphone through the use of the person’s biometric data. The magistrate wrote:
If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.
The undersigned finds that a biometric feature is analogous to the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.
This decision has further muddied the waters of when you can be compelled to unlock your mobile phone. It throws out the idea that a passcode and your biometric data should be considered separate from a legal standpoint. Instead, the magistrate has argued that any personal data (biometric or otherwise) that could be used to unlock your phone falls under the Fifth Amendment.
What To Do If You’re Arrested
If you’ve been arrested and the police ask you to unlock your phone, you should politely decline until you’ve spoken with an attorney.
Once you’ve requested a lawyer, the police cannot interrogate you any further until your attorney arrives. Your lawyer will evaluate the circumstances of your arrest and advise you about how to proceed.