December 31, 2014 By Wallin & Klarich

Put yourself in this scenario for a moment: After a long day at work, you come home where you want nothing more than to just eat dinner, relax in front of the TV and get a good night’s sleep. Instead, you and your significant other end up in a fight and the neighbors call the police, who arrest you after an accusation that you tried to strangle your loved one.

iPhone Search RightsThe police suspect that a home security camera may have picked up video of the incident. The camera sends the footage to your smartphone, which you have protected by a fingerprint lock and a numerical passcode. They want to see the footage.

Can the police force you to place your finger on the scanner and then type in your passcode? A recent court ruling says the answer is both yes and no.

The above scenario is exactly what happened to David Baust, an emergency medical services captain who was accused of trying to strangle his girlfriend during a domestic argument. The police applied to get a warrant to order Baust to disable his phone’s security by using the phone’s fingerprint scanner and inputting his passcode. His attorney objected, and the court ruled that while he could be forced to provide his fingerprint, he could not be forced to turn over his passcode to the police.1

Are Passcodes Protected By the Fifth Amendment?

What difference does the court see between holding out your hand to touch a screen and answering a question to give a sequence of numbers to unlock your phone? The difference is that the Fifth Amendment protects you from being forced to disclose those facts known only in your mind that could incriminate you. A fingerprint is considered “non-testimonial,” meaning that does not require you to divulge anything that is connected to your own specific knowledge.

With respect to your phone, the court views your fingerprint to be the same as turning over the keys to your suitcase. However, the court views the police forcing you to reveal your passcode, like the four-digit codes used to lock an iPhone, to be a testimonial act, and therefore protected under the Fifth Amendment.

The Baust case represents a victory for privacy as law enforcement agencies can no longer force citizens to turn over information contained in their minds that could be used against them in a criminal case.

Does the Decision Apply in California?

Earlier this year, the Supreme Court ruled that the police must obtain a warrant to search the contents of your phone, so the police cannot search your phone without your permission, even if they were to find it in an unlocked state on your person during a search.2

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” Chief Justice Roberts wrote. “Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple — get a warrant.”3

How Do I Protect My Information?

Police Search CellphoneThe closest California comes to a law that governs password or passcode-locked information is the ruling in the case of United States v. Matlock that applies to personal computers, laptops and tablets. With those devices, the key is whether you are the only person who can access the files on the device, and whether you have ever shared the password or passcode with anyone. This is important because the police may accept the consent to search a device from anyone who appears to have the authority to give it. For example, if you share an iPad with your roommate, and he or she knows the passcode, the police can ask your roommate for permission to search the iPad.4

Another example might be a phone provided to you by your employer. Generally, if the employer provides the phone and controls how it is used, they have the authority to give consent to a search of the phone.5

Until California passes laws related to phone passcodes, or until the California courts make a ruling that determines what the law will be, your best bet for keeping your information safe on your cellphone is to not share your passcode with anyone, and always conduct your personal business on a phone owned and exclusively controlled by you.

Contact the Defense Attorneys at Wallin & Klarich

If you or someone you love has been accused of a crime, you will need an experienced and aggressive attorney to help you win your case. At Wallin & Klarich, our attorneys have been successfully defending clients facing criminal charges for more than 30 years. Let us help you, too. Contact us today for a free, no obligation phone consultation.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney near you, no matter where you work or live.

Call us today at (888) 280-6839 for a free phone consultation. We will be there when you call.

1. [Elisabeth Hulette, “Police Can Require Cellphone Fingerprint, Not Pass Code,” The Virginian-Pilot, October 30, 2014, available at]
2. [Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014).]
3. [Id. at 2495.]
4. [See United States v. Matlock, 415 U.S. 164, 171 (1974).]
5. [See, e.g., United States v. Zeigler, 474 F.3d 1184 (9th Cir. 2007).]

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