Since 2014, approximately 67% of all smart phones in police evidence lockers are encrypted. For police, detectives, and the district attorneys, this creates a huge burden with regards to evidence and prosecution. During the conflict between Apple and the FBI over the San Bernardino phone encryption, former NYPD Police Commissioner Bill Bratton asked in an op-ed, in light of encrypted phone cases, “The Constitution guarantees no absolute right to privacy. It guards against unreasonable search and seizure. How is what we are talking at all unreasonable?”
According to the courts, it could be unreasonable. There is a difference in the law with regards to how a phone is locked. Courts have looked at physical evidence (fingerprint) vs. knowledge (passcode), and have made these distinctions in caselaw.
Recently, in Minnesota v. Diamond, the Minnesota Court of Appeals affirmed that an order requiring a suspect to provide his fingerprint to unlock his cellphone was constitutional. The defense argued that the court violated the defendant’s Fifth Amendment right against self-incrimination by ordering the defendant to provide the fingerprint to access the information on the phone. There was, in fact, incriminating evidence found in the cellphone after it was unlocked.
This was a matter of first impression for the Minnesota Court of Appeals’ attention, but a similar issue had also recently arisen in Florida.
The Florida Court ruled that a man suspected of voyeurism using his phone must turn over his four-digit passcode to police. Though police had a warrant, they could not access the phone without the passcode. A trial judge denied the motion to force the man to submit the code. The judge equated it to compelling him to testify against himself – in violation of the Fifth Amendment. The Florida Second District Court of Appeals reversed the decision stating that the passcode is not related to criminal activity that may or may not exist on the phone.
Courts have previously ruled that suspects must provide their fingerprints to unlock a phone, as mentioned in Diamond, but not a passcode or combination. Again, the distinction is between physical evidence of a fingerprint and knowledge of a passcode. A 2014 decision by the Virginia Beach Circuit Court found that individuals could not be forced to give up their phone’s passcode, but they could be ordered to provide a fingerprint to unlock the phone.
The Supreme Court’s 1988 decision in Doe v. U.S. ruled that a person may be compelled to give up a key to a strongbox, but not a combination to a safe. This is the interpretation courts are using when it comes to providing passcodes and fingerprints. However, the three-judge Appeals Court panel didn’t agree with this approach. They found the comparison with the current state of technology outdated; that providing a passcode would not be as self-incriminating as directly giving authorities evidential documents.
The police had probable cause and a warrant to search the phone. Judge Anthony Black wrote in the Florida Second District Court’s decision, “Moreover, although the passcode would allow the State access to the phone, and therefore to a source of potential evidence, the State has a warrant to search the phone—the source of evidence had already been uncovered … Providing the passcode does not ‘betray any knowledge [Stahl] may have about the circumstances of the offenses’ for which he is charged.”