Recently, a story related to a man’s refusal to unlock his cell phone made national headlines. The situation involved a man who was stopped for traffic and marijuana violations who was arrested. During the course of the arrest, police demanded the passcodes for his cell phones, and he refused. Eventually, police obtained warrants, and when he continued to refuse, a judge locked him up for contempt of court. He ultimately spent 44 days in jail before the charges and contempt order were dropped.
Privacy and Cell Phones
A person has an extremely high expectation of privacy in his/her cell phone – rightly so in light of the incredibly personal nature of items most keep on their cell phones. The Supreme Court recognized this right in 2014 in Riley v. California, a landmark case in which the Court recognized that a person’s privacy interest in his/her cell phone rivals that of his/her privacy interest in the home. This interest is so strong that, absent an extremely compelling exigent circumstance, police may never search a person’s cell phone without either a warrant or consent. The Arizona Supreme Court echoed this holding in State v. Peoples. Arguably, since Arizona’s constitution has an even stronger right to privacy than the Federal Fourth Amendment, the Arizona protection of cell phones is extremely strong.
Given the Arizona right to privacy, the right to protection of one’s cell phone may very well extend beyond just the warrant requirement. When police do obtain a warrant to search a cell phone, it is possible, if not probably, that they must specify what they intend to find in the cell phone and possibly even where in the cell phone they intend to search. This may be part of the Fourth Amendment’s “particularity” requirement, and is an important consideration given that many warrants simply seek to search a cell phone for evidence of a particular offense, without specifying, for example, that police expect to find communications regarding drug sales in the texts, or images of guns in pictures. How particular a warrant must be remains an open question federally and in Arizona.
Any person should be aware that (1) police cannot search your phone without a warrant; and (2) they may be using impermissibly broad language if they get a warrant. Accordingly, knowing your rights, and even if police tell you they will get a warrant, you do not need to permit police to search your phone absent a warrant. Note that they may seize your phone while they seek a warrant – this is probably permissible (though the issue is arguable).
The fact that police request a cell phone does not mean that the owner of the cell phone is required to provide it. In addition to privacy issues, this raises issues related to self-incrimination (assuming there is incriminating information on the cell phone). Even if a warrant is issued for the phone, unless the warrant specifies the person must provide the passcode, refusal may still be permissible. However, if the court orders that you provide a passcode, failure to obey a court order can lead to jail time.
In the event that you are subject to an order similar to that in the story discussed above, you should consult an attorney immediately. It may be possible to contest that order – but you also may wind up spending some time in custody while the order is being contested (though the attorney will request your release pending the contesting of that order.
The above are just some of the issues that have been and continue to arise respecting cell phones. Knowing your rights is incredibly important in this developing area of law. Should you confront any of the circumstances discussed herein, or any other issue related to your cell phone or computer or other electronic device, Suzuki Law can help. Contact Suzuki Law Offices today at (602) 505-0000.