When can police compel you to give up your cell phone password?

In Hillsborough County and surrounding areas, whenever they have a warrant.
Published January 11
Updated January 11

Last month, Taphonie Prince was arrested on suspicion of committing two armed robberies in Riverview.

Now he's serving a sentence of five months and 29 days in the Hillsborough County jail, not for the holdups, but for contempt of court in connection to the case. When a judge granted investigators permission to search his Android cell phone for evidence in the robberies, Prince refused to give up his passcode.

If he had been arrested in another part of the state, things might gone differently for the Riverview man.

Florida courts are divided on whether law enforcement can compel someone to give up the passcode to their cell phone. In Hillsborough County, as well as other areas of west central Florida covered by the Florida Second District Court of Appeal, the courts say that law enforcement can.

“That’s at odds with the way that the case law has been developing in other courts,” said Riana Pfefferkorn, associate director of surveillance and cybersecurity at the Stanford Center for Internet and Society.

The issue has been at the center of several state and federal cases across the country in recent years. The central question in them is whether providing a cell phone password falls under the Fifth Amendment, which protects against self-incrimination.

At a minimum, police need a warrant to search a cell phone, as required by a U.S. Supreme Court decision in 2014. It found that phones are considered inherently different than the contents of someone’s pockets when they are searched, for example. That’s because of the sensitive information routinely kept in them, including contacts, medical information, banking records.

Once a warrant is secured, the type of passcode becomes the next deciding factor in whether law enforcement can gain access to a phone’s contents. Cell phones are typically protected by a passcode that is either numerical or alphabetical, or by biometrics, such as a fingerprint or faceprint.

A Virginia circuit court ruled that police can require someone to give them access to a cell phone as long as the passcode is biometric, such as a fingerprint. That’s because a fingerprint is considered something you have — physical evidence — and thus not self-incriminating. Stanford’s Pfefferkorn said this can also extend to facial recognition.

But numeric or alphabetical passwords, on the other hand, are often considered something you know. This is where courts are divided.

Florida’s Second District Court of Appeal found in 2016 that a man who was accused of voyeurism had to provide law enforcement with his cell phone passcode because it was not related to the contents of his device. Police were allowed to access the device, the court said, because they established that evidence they were looking for — in this case, media files related to voyeurism — was on the phone.

But a more recent case in Florida’s Fourth District Court of Appeal challenges this finding. In that instance, a minor was involved in a fatal car crash involving alcohol. Police asked for his iPhone passcode to look for evidence.

The court of appeal ruled that the minor did not have to provide police access to his phone because providing the password, it found, would be self-incrimination, and as a result was protected by the Fifth Amendment.

Prince, who has not yet been charged with a crime related to the robbery investigation, is being represented by the Hillsborough County Public Defender’s Office. Mike Peacock, bureau chief of the public defender’s noncapital homicide division, said Prince’s case is far from unique, but couldn't talk specifically about open cases. What concerns him generally about search warrants for phones is the broad scope they often have.

In Prince’s case, the warrant gives police permission to search for nearly everything on the device, from call logs, texts and instant messages to global positioning data, internet history, photos and videos. That, Peacock said, isn't specific enough.

“It’s our position that you can’t just go on a fishing expedition by saying, ‘I want it, therefore I’m entitled to it,’” he said. “There’s nothing about the contents of a phone that makes the government more entitled to have it rather than less.”

Typically, Peacock said, search warrants need to be narrow. But many judges, he said, sign off on broad cell phone search warrants in Florida’s second appellate district without requiring a narrower scope.

“It should make you very, very, very afraid,” he said. “It’s the whittling away of your constitutional rights.”

A spokeswoman for the State Attorney’s Office, which is prosecuting Prince, said the office does not comment on ongoing litigation.

For a firm answer on whether Florida law enforcement can require someone to provide their passcode, Stanford’s Pfefferkorn said, the state’s Supreme Court will need to weigh in.

“The takeaway is that this guy is unlucky enough to be in a court that is kind of at odds with the other courts that have considered” this issue, she said.

 

Contact Malena Carollo at [email protected] or (727) 892-2249. Follow @malenacarollo.

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