Demanding Cell Phone Passwords

By: Pratik Parikh

Approximately seventy-seven percent of Americans own a smart phone.[1] Smart phones contain a lot of personal information including text messages, call records, photographs, and web search history. [2] The United States Supreme Court in Riley v. California recently addressed “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” [3] The Court found that with modern technology allowing users to “carry such information in [their] hand[s] does not make the information any less worthy of the protection for which the Founders fought.” [4] Therefore, the Court held that it “is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” [5]

Now that cell phones may not be searched unless a search warrant is granted or the search satisfies a specific exception; the question remains whether law enforcement can ask the user to provide their cell phone password.[6] Courts have considered whether asking for a cell phone password violated the Fifth Amendment, specifically the self-incriminating clause.[7]

The United States Air Force Court of Criminal Appeals in United States v. Robinson was asked to determine whether requesting a cell phone password for a sexual assault case violated the Fifth Amendment.[8] The court held that the defendant’s “knowledge of the passcode did not incriminate him, [because] investigators had no reason to believe that the passcode itself would be incriminating or communicate any information about the crime.”[9] Therefore, the court concluded that “the request for the passcode did not constitute interrogation in violation of the Fifth Amendment” unless, “the request for the passcode constituted a reinitiation of communication . . . to open a more ‘generalized discussion’.” [10]

Similarly, the Court of Appeals of Florida in State v. Stahl was asked to determine whether requesting a cell phone password in a video voyeurism case violated the Fifth Amendment.[11] The court found that cell phone passwords do not “implicitly ‘relate a factual assertion or disclose information,’ [thus] ‘compelling a suspect to make a nonfactual statement that facilitates the production of evidence’ for which the State has otherwise obtained a warrant . . . does not offend the [Fifth Amendment].”[12]

Even though smart phones now store a large amount of personal information, the question of whether law enforcement can request or demand the password for smart phones is yet to reach the United States Supreme Court. However, lower courts have found that law enforcement requesting or asking for cell phone passwords does not violate the Fifth Amendment.[13] Therefore, even with a cryptic password, a smart phone user’s information is not protected from law enforcement. With technological advancements, including facial recognition passwords, in the works, the courts may have to address whether law enforcement can compel an individual to unlock one’s phone with their passcode, face or retina.[14]

[1]Mobile Fact Sheet, Pew Res. Ctr. (Jan. 12, 2017),

[2] Riley v. California, 134 S. Ct. 2473, 2489 (2014).

[3] Id. at 2480.

[4] Id. at 2495.

[5] Id. at 2493.

[6] See Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from a Search Incident to Arrest?, 96 Iowa L. Rev. 1125 (May 2011) (discussing the implications of cell phone searches and the Fifth Amendment).

[7] See United States v. Robinson, 76 M.J. 663, 666 (A.F. Ct. Crim. App. 2017); See also State v. Stahl, 206 So. 3d 124, 134 (Fla. Dist. Ct. App. 2016).

[8] See Robinson, 76 M.J. at 665-66.

[9] Id. at 671.

[10] Id.

[11] See Stahl, 206 So. 3d at 127.

[12] Id. at 134.

[13] See Robinson, 76 M.J. at 671; See also Stahl, 206 So. 3d at 135-36.

[14] See Brett Molina, New IPhones Might Be Able to Recognize Your Face, USA Today (Aug. 28, 2017), (discussing IPhone 8’s new facial recognition passcode).

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