In recent years, the dynamics of technology have undergone massive transformations, impacting every aspect of our daily lives. One gadget is an inseparable part of our existence now – cellphones. With immense convenience, we must know that this device could potentially be turned against us by the forces of law. In these testing times, your cellphone can be your savior or a bane of your existence. So, in any twisted turn of events, can police officers force you to unlock your cellphone to retrieve information? What does the law say? Let’s find out.
Protection Offered By the Fifth Amendment against Self-Incrimination
This law clearly asserts that no individual can be forced into testifying against themselves. Let’s put it this way, it is a protective shield against self-incrimination, ensuring that nobody can be compelled to disclose the contents in their personal space.
Testimonial vs. Non Testimonial Acts
The Supreme Court distinctly distinguishes between testimonial and nontestimonial acts, and “The Fifth Amendment” shields testimonial acts. They involve the declaration of information. On the other hand, nontestimonial acts do not require a person to provide any knowledge. Some of the common examples that come under the umbrella of nontestimonial acts are:
- Standing in a lineup
- Providing a DNA, blood, or urine sample
- Having your photograph taken
- Producing a handwritten sample
- Providing fingerprints
Why does this distinction matter?
The method you choose to lock your phone plays a pivotal role in whether or not you can exercise your Fifth Amendment rights. Cell Phones have multiple options for locking that you can choose from – alphanumeric passcodes or simple passwords, pattern locks (swipe locks), finger/thumbprints, and facial recognition.
The method you choose makes the difference whether or not you will be required to unlock it for a police officer or not. Law enforcement cops (police officers) cannot force you to unlock your phone by a testimonial act that can reveal your mind’s content. However, you have to, by law, unlock your phone by a nontestimonial act such as face recognition or thumbprints.
Choosing the Phone Lock Method
As per current law, the police have the authority to demand unlocking if your phone has facial recognition or fingerprint identification set. However, they cannot do so if you choose a pattern lock or a passcode/password.
The reason is clear: unlocking with a passcode implies knowledge of that code, constituting a testimonial act protected by the Fifth Amendment. In contrast, using facial recognition or fingerprints is considered a nontestimonial act, revealing no explicit knowledge.
While any form of lock on your cellphone might serve as a form of privacy, law enforcement’s capabilities can challenge this. Even facial recognition or fingerprint locks are not foolproof protection. Therefore, choosing a pattern lock or a passcode/password remains the safest choice.
Protect Your Rights with Our Help
At Edwards Sutarwalla Samani LLP, we protect every individual’s rights, particularly those given by the constitution. Our team of attorneys has extensive experience defending those whose rights have been encroached upon. Get in touch with us for help; call (713) 565-1353 to get started.