The growing popularity of smartphones has raised several important constitutional questions. Many of these questions have focused on the Fourth Amendment’s protection against unreasonable searches and seizures. In 2014, the Supreme Court held that the Fourth Amendment requires police officers to obtain a warrant before they can search your phone. Earlier this year, the
the FBI and Apple got into a dispute over whether the tech company could be forced to develop technology to open locked iPhones. Just this month, in a case called Stahl v. State, the Florida Second District Court of Appeals addressed a different, but related, question: whether police officers with a warrant to search a phone can force its owner to give up the phone’s password.
This issue is governed by the Fifth Amendment, which states that “[n]o person. . . shall be compelled in any criminal case to be a witness against himself.” While a search warrant can grant police permission to search a person’s residence and belongings, the Fifth Amendment prohibits officers from forcing them to answer questions. Supreme Court Justice Stevens once described the distinction by saying that an accused may be “forced to surrender a key to a strongbox containing incriminating documents,” but he cannot “be compelled to reveal the combination to his wall safe.”
In Stahl, the defendant was charged with video voyeurism when a woman in a store observed him holding a cellphone under her skirt. The defendant claimed that he had dropped his phone and then quickly fled the store. The police obtained a search warrant for the phone to determine if there were any pictures or videos, but found that the phone was locked by a pass-code.
The court determined that giving up a phone password did not violate the Fifth Amendment because giving up the pass-code would not be an acknowledgement that the phone contained evidence of video voyeurism. It rejected Justice Stevens’s “lockbox” and “safe-combination” distinction, particularly considering emerging technology. The court pointed out that many iPhones are now locked by a finger-print reader, and that the Fifth Amendment would certainly allow officers to require a suspect to place his finger on an iPhone. Giving up a passcode, it reasoned, would not divulge any more information than a fingerprint.
The Stahl decision effectively holds that a pass-code will not protect the contents of a phone from a police search. However, other courts in future decisions may disagree with or distinguish the court’s ruling. For instance, if there is some dispute as to whether the defendant is the owner of the phone, giving up a pass-code may have testimonial significance that is protected under the Fifth Amendment. Given how much data the average person now locks behind passwords, criminal attorneys will likely be litigating this issue again in the future.