Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

“MUST I HELP LAW ENFORCEMENT OPEN AND EXAMINE MY PHONE OR TABLET?” (PART TWO)

My last posting examined this subject from the standpoint of whether the police have the right to grab your smart-phone without a warrant. It triggered rights guaranteed you courtesy of the Fourth Amendment to the United States Constitution.

Today we continue the search and seizure issue from another angle. Let’s say that the officer does have a warrant. We know that he then has the right to take the items. However, you have a great security program in effect and he cannot figure out how to open it.

He turns to you for help. Let’s say that you do not want to give him that help because what he finds may incriminate you.

Do you have to help them open and examine the items?

The key to this issue is the words “have to”. Clearly, you may voluntarily help them. You also know that, whether you help them or not, law enforcement may take the items and try to find away to examine the contents on their own.

If you tell them that you choose not to be so helpful in your own criminal justice demise, can they compel you?

This brings the debate to the Fifth Amendment, which protects suspects from having to testify against themselves. While the historical right to “plead the Fifth” is well understood , its role when it comes to cell phones is less obvious.

Before the days of cell phones and tablets, courts had to wrestle with various issues of daily life and investigations as they came to confront the Fifth Amendment. For example, if a grand jury subpoenaed someone to produce records in court, courts had to decide when obeying the summons triggered the Fifth Amendment.

In some instances, simply providing the paperwork in itself would be a statement. For example, doing so clearly indicates that you had the possession and control of those documents in order to produce them. Likewise, if there is incriminating evidence on your I pad, and you would prefer to distance yourself from seeming to have control or possession of it, if you give the officer the code…clearly you are showing that you know the code. It is probably your I pad!

What if the “key” to the IPod is a finger or thumb print? Same issue? Same finding by way of the court?

While there does not seem to be any controlling law in Massachusetts, Virginia courts have dealt with this issue in a sex crimes case.

The state alleged that the defendant had videos showing himself beating and sexually assaulting a complainant. They used a warrant to seize the phone, but could not view the videos since the cell phone was locked by a passcode. The defendant refused to unlock it.

In the case in which the “key” to unlock the cell phone was a person’s finger, the court found that a suspect may be forced to offer the use of his finger. The court based its decision on the fact that police may routinely require:

“Even though the act may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice,” wrote the court.

However, the same is not true when the “key” is a passcode. The court ruled that a suspect may not be forced to “disclose the contents of his own mind” by, for instance, telling the police a secret password. Requiring such disclosure, the court noted, amounts to “extortion of information” that basically requires a person to testify against himself in violation of the Fifth Amendment.

The Virginia man will have to provide a fingerprint or go to jail for contempt of court, but will not have to have to tell the police the passcode.

Attorney Sam’s Take On Reaching Beyond The Fifth Amendment

While we now have a ruling by the United States Supreme Court as to the Fourth Amendment’s effect on search and seizure of cell phones and tablets, we really don’t have a definitive answer regarding the Fifth Amendment. After all, the decision from Virginia is just a state court ruling that carries no larger precedent.

“So, it is worthless in Massachusetts?”

No. Because there does not seem to be a clear ruling here, the court may well consider what other courts have done in a similar situation. It is not binding upon the court, such as a ruling from the United States Supreme Court, but the court may well find it persuasive enough to find the same way.

This is clearly just the beginning of these types of cases. Up ahead are searches involving things like “The Cloud”, sent emails and texts and the like. We have already seen cases in which telephone calls made with wireless and cell phones may not be as protected with calls on what we now call “land lines”.

One primary issue is likely to be under what circumstances information sent and stored elsewhere is sent. In other words, what is the expectation of privacy?

Particular since September 11, 2001, the federal government, for example, has been given wider latitude to conduct its investigations under the guise of “national security”. Also, it important to remember that, in many cases, the courts can order a suspect or a defendant to do various things such as provide DNA samples, blood samples, fingerprints, etc.

As I reminded you in the beginning of Monday’s posting, the laws regarding search and seizure are complicated and ever-developing. Going it alone, without an experienced criminal defense attorney’s aid becomes a big mistake.

Unless you are looking for a free and secure place to stay for a while, that is.

A long while.

To read the original story upon which this blog is based please go to https://gigaom.com/2014/06/25/supreme-court-holds-that-privacy-rights-apply-to-cellphones-police-need-a-warrant-to-search/ , http://hamptonroads.com/2014/10/police-can-require-cellphone-fingerprint-not-pass-code and https://gigaom.com/2014/11/04/suspect-must-use-finger-to-unlock-phone-as-debate-shifts-over-device-privacy/

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