The Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
– Fifth Amendment to the United States Constitution
The Fifth Amendment and Your Passcode
When it comes to mobile devices, there is some disagreement as to what protections are offered by the Fifth Amendment to the United States Constitution as it is stated above. There does seem to be, however, some agreement that the Fifth Amendment does provide protection for individuals who do not wish to provide their passcodes to officials who demand it.
The cornerstone for this belief is the case of Fisher v. United States, where the US Supreme Court essentially ruled the Fifth Amendment did not protect the physical content, but the act of disclosing it was. The court reasoned that “the act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer.”
While this would seem to indicate that you do not have to provide police with a passcode should you choose not to, the ruling only applied to the providing of information, not the information. So, if the passcode was easily attainable by police, say if it was known to be written down on a notepad at home, they could merely obtain a warrant and gain access to the passcode, and hence your devices.
Where the situation becomes murkier is with regards to the protection of biometric security for phones or mobile devices. Where courts seem to be somewhat in agreement that the Fifth Amendment offers some protections against individuals having to produce a passcode on demand, there seems to be a belief that biometrics are not protected.
Most courts seem to argue that there are no Fifth Amendment protections against the production of an individual’s voice, handwriting, face, or even blood, upon demand. This feeling is based upon the Supreme Court’s ruling in United States v. Wade, in which the court argued, “it is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.”
A recent federal court ruling in Illinois echoes this argument, where it was determined that producing a biometric passcode was not the same as producing physical evidence – or an actual password.
Contact a South Florida Criminal Defense Attorney Today
If the police arrest you and demand you provide them with a passcode to access your private information, you need to contact an experienced criminal defense attorney immediately.
Chad Piotrowski has an extensive background in aggressively defending his clients from charges ranging from marijuana possession to armed drug trafficking and murder. A former prosecutor in Miami-Dade County, Chad Piotrowski has the unique ability to anticipate prosecution strategies to help build a solid defense to help obtain the best possible outcome for his clients.