Feb 21, 2022

Your cell phone is full of information police would love to get access to. It’s got messages, location data, your financial data, photos, and a whole lot more.

And you’d better believe they want every scrap of it.

Fortunately, your phone is covered by your 4th and 5th Amendment rights.

Table of Contents

Law Enforcement Needs A Warrant

Two Supreme Court cases force law enforcement to get a warrant if they want into your cell phone. The first is the 2011 case Riley vs. California and the second is the 2014 case U.S. vs. Wurie.

In Riley, the Court drew a distinction between data and analogue evidence. The Court ruled that data found on a cell phone included “private information never found in a home in any form.” They were also concerned with data stored in the cloud, and the power of the cell phone to open a door to that data. They stated that in general police should have a warrant before searching a phone.

In Wurie, the Supreme Court ruled that the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested, even though they’ve been arrested.

Note that there are exigent circumstances that do allow the police to search phones. If they have reason to believe the evidence is about to be destroyed, for example, they can go ahead and try, though they risk a defense lawyer making a successful case that the exigent circumstances did not apply and that the evidence should be thrown out.

You Have The Right To Refuse An Unlock

A federal judge for the United States District Court for the Northern District of California, Kandis Westmore, ruled in 2019 that the police cannot force you to give up biometrics.

The judge noted that if a person cannot be compelled, due to their 5th Amendment rights, to provide a passcode then a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric features.

This was a district court and not the Supreme Court, which means in New York City you may still run into police officers who will wave your phone in front of your face to see if they can get it to open, whether you consent to this or not. It is still a good idea to calmly assert that you do not consent to a search of your cellphone. Your lack of consent could be used to throw the evidence out later.

Law Enforcement May Work Around You

First, if you’ve already been arrested it’s unlikely that law enforcement will not eventually be able to get a warrant to unlock your phone. If you refuse to cooperate once they have a warrant that refusal may be used to levy new charges against you, or may be used against you in a court of law.

It does happen quite often: police officers can’t always even unlock the phones they have a warrant to unlock, even though they have many tools that they can use to get into locked, encrypted phones.

Police can also subpoena information from your phone provider. They can, for example, get a warrant and a subpoena for your location data from AT&T and T-Mobile. A good defense lawyer can help challenge cell tower ping data as it may not reveal your exact location with any degree of accuracy, but this is still a concern, and still worth knowing about.

Get A Lawyer!

If police are trying to get into your cell phone for any reason you’re in trouble. If police have a warrant to search any part of your life, you’re in trouble. If you’re being charged with a crime, you’re in trouble.

A skilled, experienced defense lawyer may be your only hope of getting your life back. Reach out to Greco Neyland to get help today.

About The Author

Jeffery Greco

Jeffery Greco is an attorney providing legal services covering Criminal Defense and Criminal Defense: White Collar and Criminal Defense: DUI / DWI. Jeffery Greco, who practices law in New York, New York, was selected to Super Lawyers for 2020 - 2023. This peer designation is awarded only to a select number of accomplished attorneys in each state. The Super Lawyers selection process takes into account peer recognition, professional achievement in legal practice, and other cogent factors. Prior to becoming an attorney, he studied at South Texas College of Law Houston. He graduated in 2004. After passing the bar exam, he was admitted to legal practice in 2005.

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Can The Police Force You To Unlock Your Phone In NYC?

About The Author

Jeffery Greco

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