In this post, I tried to briefly answer the question that keeps recurring about police efforts to search cell phones when they arrest people: "What if you need a passcode to enter your cellphone and refuse to provide it to the police to search the phone?"
A new law review article on this issue by Professor Adam Gershowitz of the University of Houston was brought to my attention. Gershowitz is one of the first to study the unique legal implications of smartphones. Way back in 2008, he examined the search incident to arrest doctrine and cell iPhones and asked, “What happens . . . when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, e-mails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use?” His answer was yes. (My answer, two years later, was maybe no.)
Gershowitz’s new article is titled: “Password Protected? Can a Password Save Your Cell Phone From the Search Incident to Arrest Doctrine? It will be published in the Iowa Law Review, and is available online here.
In this article, Gershowitz argues that an arrestee to disclose his password is a statement covered by the Fifth Amendment right to remain silent. This is because knowledge of the password can demonstrate control and possession of the electronic device.