Cell phone technology is evolving, and in many cases, the law has been slow to keep up. One area of law that has recently been updated by an Illinois ruling relates to law enforcement's ability to force a phone owner to hand over a phone password.
Police officers understand the potential value of information on a suspect's cell phone. Everything from photos to contacts to internet search history could provide law enforcement with insight into the alleged criminal activity they are investigating. But standing in the way between an investigator and the information on a suspect's phone is the password.
There is nothing preventing the police from asking a suspect to hand over a password voluntarily. But according to a recent Illinois appellate decision, compelling a defendant to hand over their password violates a suspect's Fifth Amendment right against self-incrimination.
Technology and the Fifth Amendment
The Illinois appellate case, People v. Spicer, involved a defendant that was arrested for possession of a controlled substance. The defendant was riding in the passenger seat of a vehicle at the time of a traffic stop. A controlled substance was discovered in a backpack at the Defendant's feet, and he was ultimately charged with possession. In addition to the backpack, the defendant was also found to have a cell phone in his position. After refusing the request to unlock the phone from law enforcement, the prosecutor filed a motion seeking a court order requiring the defendant to hand over the password.
In denying the request, the court held that requiring a defendant to hand over a password intrudes on “the contents of your own mind.” Ultimately, the court held that handing over a password involved the release of the information on the phone, not the password itself. In other words, requiring a defendant to give up their phone password effectively forces them to incriminate themselves in violation of the 5th Amendment.
In Spicer, the prosecutor alleged in their affidavit that the phone might contain information pertinent to the crime. The potential for useful information did not outweigh the defendant's constitutional rights, according to the appellate court. While the information on the phone might have been relevant to the prosecution's case, it does not justify violating a defendant's rights.
Hacking by Law Enforcement
In cases where law enforcement can't convince a suspect to unlock their phone, do they have the power to obtain a warrant and simply hack the device? Apple has developed powerful encryption for the iPhone that makes hacking it nearly impossible. While the federal government has been able to successfully unlock an iPhone, state and local law enforcement lack that level of sophistication. In other words, in most criminal prosecutions law enforcement will be unable to access the information stored within a phone without the owner's consent.
A Chicago Criminal Defense Lawyer can help Protect Your Rights
While this recent development in Illinois law favors the defense, it is worth noting that case law can change in an instant. To best defend yourself from criminal charges in a Chicago courtroom, contact The Law Office of Howard J. Wise & Associates immediately.