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May 04, 2011

A Bit More on Cell Phones....

Arrest A little bit more on cell phones, searches incident to arrest, and passwords.

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. 

Gershowitz is skeptical of attempts by law enforcement to argue that statements must be provided because the control or possession of the device is already known to the government (the “foregone conclusion” argument I highlighted in my previous post).  He writes:  “The foregone conclusion argument should fail in the vast majority of cases, because without knowing the specific contents of the phone, the police are not in a position to say before the search what evidence will be found once the password is entered.”  However, he acknowledges that “because this area of law is complicated and murky, it would not be surprising to see courts incorrectly adopt the foregone conclusion approach in borderline cases where police had some inclination that cell phones contained illegal, but unspecified, information.”






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