With cell phones nowadays almost always protected by a passcode of some type, it is common for police to ask suspects to provide access. Many people ask us “Is this legal?” In truth, police can ask you to consent to a search of your phone, car, or other personal property whenever they want. You do not have to consent, though, without a search warrant under the Fourth Amendment, and you generally should not. You have a right to privacy, and exercising that right is not considered suspicious behavior.
This changes the moment the court orders a search, however. If a judge issues a search warrant or subpoenas documents, you must turn them over. This includes your cell phone. Turning your cell phone over to the police is very different than being forced to give them access, though. So do you have to unlock your phone when it is given to the police?
Accessing Phone Data: Fingerprints vs. Passwords
Legally, the answer depends on how your phone is locked. A ruling here in Virginia established that you cannot be forced to provide your password to police. Since that knowledge is stored in your head and is considered testimony, the courts have held that the Fifth Amendment protects your passcodes. You cannot be forced to self-incriminate. That means that while police may attempt to crack the passcode, they cannot force you to help.
The same is not true of biometric access, on the other hand. If your cell phone is protected by a fingerprint, that fingerprint can be subpoenaed, just like DNA can be. The same goes for other biometric information like a voice sample or retina scan. The court ruled that since you are not required to reveal any knowledge that this information is fair game.
So what does that mean for you? If your cell phone is confiscated, you do not have to unlock the phone for police no matter what without a valid court order. You never have to tell the police any specific information about your cell phone data. In fact, you can better protect these rights by having an attorney present during any police questioning.
Exercise your right to remain silent until your Virginia criminal defense lawyer is present. If you have been questioned by police, been arrested, or simply believe that you may be a suspect, call the Roanoke criminal attorneys at right away at (540) 343-9349 for a free consultation on your case to find out how we may be able to help.