Cell phones contain access to so much of our lives, and it’s frightening to realize how they could be used against us if we’re stopped by the police. Whether the police can force you to open your phone during a traffic stop or other arrest can get legally confusing.
Understanding your rights and when the authorities need a search warrant is vital to protecting yourself. You will need guidance from an experienced Fairfax criminal defense lawyer to determine the laws and protocols around whether you have to give the police your phone password.
What does the law say regarding police searches of personal property?
There are two key facts about whether law enforcement can ask for your password. First, Virginia law and Supreme Court decisions explicitly state that in nearly all cases, officers cannot use your phone to obtain information without first obtaining a search warrant. The second thing is that the police are allowed, by law, to lie about to you about what the law says, many do so to try to get you to consent to a search.
The police officer’s job is to make arrests and let the courts decide if you’re guilty. They will regularly make misleading or false statements to secure anything they can use against you. Knowing that you do not have to give them consent can be critical to saving yourself from wrongful detention and unjust charges.
Can police get into your phone without a passcode?
Whether you have a right to privacy regarding what’s on your phone can be complicated. You certainly have a Fourth Amendment right protecting you against unlawful search and seizure, and you have a Fifth Amendment right against providing information that might incriminate you. Most people understand this in relation to a search of your property or making statements that could be used against you.
Yet, how does this apply to your phone when it comes to your passcode? Most people use one of the following ways to secure their phone from others:
- A passcode using numbers, letters, or a combination of both
- A fingerprint scan
- A facial recognition scan
Asking you for your passcode is the same as asking you for the combination to a safe. It’s information from your mind versus objective methods. If the police were to discover the keys to that safe, they could use them to open the safe.
In the same way, if your face or fingerprint is accessible to them, they may be legally able to use those to unlock your phone. If you have a passcode, however, they cannot compel you to provide that code.
| A Fairfax County judge ruled in 2019 that state officials do have the ability to compel you to use your fingerprint to unlock your phone. They do not have the right to force you to open it using a passcode, however. |
How can I protect myself when the police ask for my phone password?
One of the most common ways to avoid prosecution is to remember you have the right to remain silent. This includes the right to refuse to answer questions or to simply say “No” when they ask you to put in your passcode. Despite this, the police will try many tricks to get you to open the phone for them.
They may let you use the phone to call someone. Once you’ve voluntarily unlocked it, they’ll try to keep you from relocking it so they can secure a search warrant. They’ll insist on holding it while they dial the call, thus giving them possession of the phone and the ability to search it.
To protect yourself, refuse to unlock the phone until you have spoken with your lawyer, even if it’s by phone at the jail. Keeping calm and remembering your rights will go a long way to keeping you safe and avoiding a criminal record.
The phrase, “I want a lawyer” is the most powerful tool to protect yourself when being interrogated by police or being pressured to open your phone. If you have been arrested, then this phrase should prompt any law enforcement officer to cease interrogations. If they continue to ask questions after you have asked for a lawyer, any statements or evidence they uncover from you may be suppressed by your attorney in court.
How can a criminal defense lawyer help me?
Can police unlock your phone without the password? In most cases, they cannot unless they trick you into revealing your passcode or unlocking the phone for them. It’s crucial to remember law enforcement officers are not on your side and will sometimes say and do dubious things if it means they can make an arrest.
Protecting your freedom is best done with help from a reputable criminal defense attorney who understands how this legal issue is a moving target. If you believe your rights were violated regarding your phone privacy, contact Select Law Partners PLLC at (855) 541-4867 or online to schedule a discussion to learn more about how we can help you with your defense.
