In 2014, the U.S. Supreme Court changed the legal landscape on cell phones by requiring law enforcement to get a warrant before searching a cell phone incident to an arrest. The Court correctly noted that cell phones are like mini-computers containing the most intimate details of our modern daily lives. But what about locked devices? Most people own devices that have numeric, alphanumeric or biometric (fingerprint or face scan) security. Can law enforcement force a person to unlock or decrypt their device?
Fifth Amendment Issue. The lawfulness of a device search may be a Fourth Amendment issue, but compelled decryption is a Fifth Amendment issue. The Fifth Amendment is commonly known as the freedom not to incriminate yourself. To successfully assert the Fifth Amendment as a protection against compelled decryption, the act of decryption must be compelled, incriminating and “testimonial”. Often, the first two criteria are easily met, while the key question is whether the decryption is testimonial. The answer often comes down to the type of lock employed.
Biometric Security Lock. Courts in Florida have not yet ruled on the testimonial nature of biometric security locks. In some states, courts have found nothing testimonial under the Fifth Amendment about compelling the production of biometric keys, such as a fingerprint, similar to tests that gather physical evidence. However, more recently, courts have started to hold that compelling the production of a biometric key is just as testimonial as a numeric one because biometric features serve the same purpose as a passcode, which is to secure the owner’s content. If you or somebody you know is being forced to unlock a phone or decrypt a device, a criminal defense lawyer well versed in these issues can help you argue the use of a fingerprint or face scan to unlock a device would be testimonial because it would communicate that you had accessed the device before and had control over its contents.
Numeric Passcode Lock. In Florida, forcing somebody to provide a numeric or alphanumeric passcode is testimonial because it forces the person to reveal “the contents of his own mind”. State v. Stahl, 206 So. 3d 124 (Fla. 2nd DCA 2016). It is analogous to compelling production of the combination to a wall safe, which is testimonial, as opposed to surrendering the key to a strongbox, which is not. However, in the Stahl case, the Second District was willing to apply an exception called the “foregone conclusion exception” to get around the Fifth Amendment issue. The exception basically states law enforcement can compel you to unlock your phone if they already know its contents. This exception will not apply in every set of facts. For example, the Fourth District agreed with the Second District that a numeric passcode is testimonial, but it refused to apply the foregone conclusion exception to the particular set of facts it was being asked to consider. G.A.Q.L. v. State, 257 So. 3d 1058 (Fla. 4th DCA 2018).
So, in Florida, can they force me to unlock it? It depends on whether the forgone conclusion exception applies. Ask yourself, are the contents known already or are they investigating something new? In reality, this exception involves a complex multi-factor legal analysis. Make sure you hire a criminal defense lawyer familiar with these issues to have the best chance at keeping your phone’s contents private. I provide free consultations. Call me today at 561.425.6250.