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Can the Police Force You to Unlock Your Smartphone?


These days, most of us keep our entire lives on our smartphones. But this also means our phones present a tempting target for law enforcement officers conducting criminal investigations. In recent years, a number of courts have had to confront the issue of whether or not the government can force a person to provide a passcode to unlock their phones in connection with a criminal investigation. Just recently, a Florida appeals court offered its views on the issue.

Florida Appeals Courts Divided on Whether Passcodes are “Testimony”

The case, Gaql v. State, involves a fatal car crash. The defendant, a minor, was driving a car past the applicable speed limit when he crashed. The police later determined the defendant had a blood-alcohol content of 0.086 percent, which is more than four times the legal limit for minors.

Based on this information, police obtained a search warrant for the defendant’s vehicle. Officers recovered two iPhones from the car. One belonged to another passenger who survived the crash. The second phone allegedly belonged to the defendant.

The passenger told the police that she had been drinking alcohol with the defendant and other friends before the crash, and they exchanged messages via their phones. The police then obtained a separate warrant to search the defendant’s alleged phone to confirm this.

Prosecutors asked a judge to order the defendant to provide not only the passcode to unlock the phone, but also his iTunes account password. The latter was necessary because “the phone could not be searched before receiving a software update from Apple’s iTunes service,” according to court records. The defendant argued that requiring him to provide this information would amount to a violation of his Fifth Amendment rights, i.e. that he would be compelled to offer testimony against himself that could be used at trial.

The trial judge rejected the defendant’s arguments and granted the prosecution’s order. But on appeal, the Florida Fourth District Court of Appeals quashed the trial judge’s order. The Court explained that forcing someone to reveal their phone password “is testimonial and can violate the Fifth Amendment privilege against compelled self-incrimination.”

The Fourth District further rejected the trial court’s holding that the “existence, custody, and authenticity of the passcodes are a foregone conclusion,” so there was therefore no Fifth Amendment violation. There is a recognized “foregone conclusion” exception in the law, but the appeals court said that only applies to the data “behind the passcode wall,” i.e. the data on the phone itself. To hold otherwise would mean that “every password-protected phone would be subject to compelled unlocking since it would be a foregone conclusion that any password-protected phone would have a passcode.”

It should be noted the Fourth District’s decision is not binding throughout Florida. In fact, the Second District Court of Appeal issued a decision in 2016 that held requiring a criminal suspect to disclose a phone passcode when the police have a warrant is not a Fifth Amendment violation. So the Florida Supreme Court may ultimately have to decide which interpretation of the law is correct.

Speak with a Miami Criminal Defense Lawyer Today

If you are charged with a serious offense and need to make sure that police and prosecutors respect your constitutional rights, you need to work with an experienced Miami criminal defense attorney. Contact the Law Office of Julia Kefalinos at 305.676.9545 today if you need immediate assistance.



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Telephone: 305.676.9545
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The Law Office of Julia Kefalinos, Attorney, P.A. is located in Miami, FL and serves clients in and around Miami, Key Biscayne, North Miami Beach, Opa Locka, Hallandale, Hollywood and Broward County.

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