Can the Police Force Me to Unlock My Phone?

 Posted on August 15, 2024 in Search Warrant

The U.S. Court of Appeals issued a federal ruling recently that affirmed it is legal for the police to force a suspect to use their thumbprint scan to unlock their smartphone. The ruling means that the police have the legal authority to force you to use your biometric data to open a device that could potentially have incriminating information against you. This could have a major impact on criminal procedures. If you are arrested or brought into the station on suspicion of a crime, speak with a skilled Elgin, IL criminal defense attorney to understand how this can affect you.

When Can the Police Make Me Unlock My Phone?

You may have heard people on TV shows and in movies saying that they "plead the fifth" in court. That is because the Fifth Amendment in the Constitution says that you cannot be forced to be a witness against yourself and you are protected against incriminating yourself. If you are asked a question under oath and an honest response to that question would incriminate you, you can "plead the fifth" and not be forced to answer.

As technology evolves and the majority of people have a great deal of personal information, correspondence, photographs, and more stored on their cell phones, there are questions about privacy and what is protected by the Constitution. In terms of unlocking a phone, the answer differs based on what the police ask you to do to unlock it. 

Testimonial vs. Nontestimonial Acts

In the law, there are two categories for things the police might ask you to do:

• Testimonial acts, through which you disclose the contents of your mind. This means that you are providing information that reveals your knowledge. The Fifth Amendment protects you from incriminating yourself through a testimonial act.

• Nontestimonial acts, which do not require you to reveal any information you have in your mind. Nontestimonial acts can still be incriminating but they are not protected by the Fifth Amendment because they do not involve sharing any of your knowledge, This category includes standing in a lineup; giving a blood, urine, or DNA sample, or having your photograph taken.

By this distinction, providing your passcode or pattern lock are considered testimonial and your fingerprint ID or facial recognition are considered nontestimonial. That is why the current law allows police to force a suspect to use facial recognition or fingerprint ID to unlock their phone but they cannot make you unlock it with a password. 

Can I Refuse to Unlock My Phone for the Police?

It is important to understand your rights when the police demand that you unlock your phone. The Fourth Amendment protects you from unreasonable search and seizure and gives you the right to refuse without a warrant. If the police have a valid warrant, you will likely be legally required to unlock your phone. 

Schedule a Free Consultation with a Kane County, IL Criminal Defense Lawyer

If you are a suspect in a criminal case, make sure to speak with a knowledgeable Aurora, IL criminal attorney. With new technology and new laws developing, it can be difficult to know what is protected by the law. At The Law Office of Brian J. Mirandola, we are passionate about explaining your rights to you and fighting aggressively to protect them. Call us at 847-488-0889 to schedule a free consultation.