Does your right against illegal search and self-incrimination apply to your or your kid’s Smartphone, Tablet or Computer’s passcode or passwords?
Our law firm represents persons charged with crimes and offenses in Pennsylvania and New Jersey. In many cases the prosecution (district attorney), through police or other law enforcement (FBI), use search warrants to obtain evidence against an accused person.
In New Jersey, similar to Pennsylvania, an accused person has rights against illegal search and seizure under the Fourth Amendment to the United States Constitution along with Article 1, paragraph 7 of the New Jersey Constitution (Article 1, Section 8 of the Pennsylvania Constitution). These Constitutional rights require that search warrants be supported by “oath or affirmation” and describe, with particularity, the places subject to search and people or things subject to search.
Can police obtain a search warrant for your smartphone or electronic device?
Yes! Search warrants can include practically any type of property such as a home, vehicle, storage facility and even cell or Smartphones. In addition to these Smart devices, search warrants can be used to access other electronic devices such as laptop computers, desktop computer, IPads, tablets – practically anything! While homes, storage facilities and vehicles are usually secured with locks or some other physical device, electronic devices are secured with passwords or passcodes. Police and other Law enforcement, pursuant to a search warrant, are permitted to break locks, break down doors or do what is necessary to access and otherwise secure location provided that the search warrant is valid.
What makes a smartphone different from a locked home or vehicle?
Electronic devices, however, have non-physical barriers which require a specific code that is usually only within the knowledge of the accused person. In addition to the Fourth Amendment which protects against illegal search and seizure, all citizens enjoyed the Fifth Amendment right against self-incrimination. Under the Fifth Amendment, an accused isn’t obligated or compelled to make testimonial communication that is incriminating.
What is the Foregone Conclusion exception to the 5th Amendment?
While disclosing a password or passcode does require an accused person to make a statement, the Supreme Court has ruled that such a statement does not fall under the Fifth Amendment right against self-incrimination. The Court has equated the access to cellphone contents to accessing a home, vehicle, or any other place subject to a search warrant. The Court has ruled that actions that do not require an individual to disclose any knowledge he may have or speak to his guilt are non-testimonial and therefore not protected.
This is known as the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination under Fisher v. United States, United States v. Go and United States vs. Hubble.
These Supreme Court cases basically hold that the Fifth Amendment privilege against self-incrimination is separate from the act of production. Even if production that is testimonial in nature can be compelled (forced) if the government (State) can demonstrate that the possession or control of the device along with their authenticity is a foregone conclusion.
When would the Foregone Conclusion Exception not apply to a smartphone or an electronic device?
If the individual’s ownership of the device is not in question, there is no Fifth Amendment right against self-incrimination. While the act of producing the passcode is presumably protected by the Fifth Amendment, its testimonial value and constitutional protection may be overcome if the passwords existence, possession and authentication are a foregone conclusion.
When does the right against self incrimination (5th Amendment) apply?
An accused only has the right to refuse to disclose any matter which will incriminate him or expose him to penalty. For the right of refusal to apply, a matter must first be found to be incriminating. A matter is incriminating if it constitutes an element of the crime against the State or Commonwealth. Where ownership and control of a device, however, is not in dispute, a passcode is not generally considered substantive information. It is not a clue to an element of a commission of a crime and does not reveal an inference that a crime has been committed.
In conclusion, while there are exceptions to all constitution rights, you should never waive those rights without first speaking with a criminal defense attorney.
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