For most of us, we use our phones for a lot more than making calls. It is our bank, navigator, camera, and so much more. As a result, gaining access to someone’s phone has become a critical objective for law enforcement if they are part of a criminal investigation. You have the right to remain silent, but do you have the right to refuse access to your phone?

West Chester criminal defense attorney Michael J. Skinner has built his practice on the passionate defense his clients’ Constitutional rights. If you’ve been charged with a crime or are under investigation, we can ensure your rights are respected.

To schedule a free and confidential consultation, call Skinner Law Firm at (610) 436-1410 or contact us online today.

Understanding Your Fifth Amendment Rights

The Fifth Amendment to the Constitution provides some of our most fundamental rights when it comes to criminal prosecutions.

In addition to protecting you against double-jeopardy and guaranteeing due process, it also offers protection against self-incrimination. That’s what people mean when they are “pleading the Fifth.” Specifically, the Fifth Amendment prohibits criminal defendants from being compelled to testify against themselves.

Fortunately, this privilege extends beyond being required to testify in court. It also applies to any stage of investigation in your case. The general principle is that the government must build its case without your help.

What Pennsylvania’s Supreme Court Says About Phones

The Supreme Court recently rendered an important decision that protects the Fifth Amendment rights of criminal defendants when it comes to their electronic devices. In Commonwealth v. Davis, the court considered whether a defendant can be compelled to disclose the password to his personal computer that he had memorized.

The issue has yet to be addressed by the United States Supreme Court. Therefore, the Pennsylvania decision provides important guidance on an issue that will arise more frequently.

Testimony vs. The Foregone Conclusion Exception

There were two main issues before the court:

  1. Whether compelling the defendant to disclose the password to his computer was testimonial in nature; and
  2. Whether providing the password would fall under the “foregone conclusion” exception to the Fifth Amendment.

As to the first issue, the PA Supreme Court focused on the distinction between “acts of testimony” versus “acts of production” such as being compelled to turn over a key to a lockbox. The Court pointed to previous decisions that held that anytime a defendant is required to use the “contents of their own mind” it constitutes an act of testimony and is therefore protected by the Fifth Amendment.

The “foregone conclusion” exception basically allows prosecutors to compel testimony if the testimony would add little to the evidence that the prosecution already has. In addressing the second issue, the Court made some very important rulings.

First, they recognized that the “foregone conclusion” exception should be construed narrowly to avoid infringing on a foundational constitutional protection. Second, after examining cases from the United States Supreme Court, the PA Supreme Court concluded that the exception only applies to business and financial records.

Can You Be Forced to Unlock Your Phone?

There are some important takeaways as to whether you can be forced to unlock your phone.

Similar to a computer password, the police cannot force you to unlock your phone by providing a memorized password. However, the case does not address whether they can force you to unlock your phone in the following situations:

  • You keep your password written down somewhere; or
  • You use your fingerprint or other “biometric” passcode to unlock your phone.

Forcing you to provide your fingerprint or produce a document that contains your password may be considered an “act of production” rather than an “act of testimony.” Nevertheless, it seems clear that the police cannot force you to disclose your memorized password to unlock your phone.

Call a West Chester Criminal Defense Lawyer

If you’re under investigation, the police will ask you to do things that are not required. The best thing you can do is to politely refuse until you have a lawyer present.

West Chester criminal defense attorney Michael J. Skinner will fight for your rights and help you navigate the criminal justice system. If you’re under investigation or facing charges, contact us today at (610) 436-1410 to schedule a free consultation.

The sooner you contact us, the sooner we can help.

Article Author

Michael J. Skinner, the founder of Skinner Law Firm LLC, is a former prosecutor with the Chester County District Attorney’s Office.

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