You’re driving in your car somewhere in Broward County, Florida and Officer (Un)Friendly stops you. He alleges that you violated some traffic infraction. Let’s say he claims you were speeding. Then, he alleges he has probable cause to believe you committed a criminal offense, let’s say drunk driving (DUI). He then points to your cell phone that’s charging in your vehicle. He says, “I’d like to look through that.” For some reason, you say, “Sure, you seem nice and I have nothing to hide.” He then takes hold of your phone and attempts to look through it. At that moment, I happen to drive up to the scene. After you explain to me what occurred up to that point, I passionately provide you with some legal advice. Based on that, you say to the officer, I want my phone back. He fires back with, “I’m not giving your phone back until you give me the passcode to your phone so I can see what is in there.” Do you legally have to give him your passcode under these circumstances?
To answer this question, it’s imperative that I discuss a recent case out of Broward County, Florida involving a teenager who was accused of speeding and driving under the influence resulting in a crash that killed a family member. He had at least two passengers in his vehicle at the time of the crash. One survived. Law enforcement officers claim the teen’s blood-alcohol reading was allegedly .086, just above the Florida legal limit of .08. The lawyer for the teen disputes the blood alcohol reading, claiming this was nothing more than an unfortunate accident. The surviving passenger allegedly informed investigators that the teen driver was drinking vodka before the crash and that she had been communicating with the driver on his iPhone. As a result, police secured a warrant enabling them to search the teen’s phone for text messages, photos, and other information. They were unable to see anything because the phone had a passcode. The Broward criminal judge handling the case, Judge Andrew Siegel, ordered the teen to provide law enforcement with his passcode. His attorney vehemently objected. In his ruling, the judge claimed that providing the passcode was no different then asking someone to turn over a key to a lockbox.
The judge’s decision was appealed to the 4th District Court of Appeal who found in favor of the teen. The appellate court ruled that police can’t force you to turn over the passcode to your cellphone even if you’re suspected of killing someone. The court found that forcing someone to reveal their passcode was tantamount to forcing them to testify against oneself, which would be a violation of the Fifth Amendment. The appeals court, citing U.S. Supreme Court cases, further explained that law enforcement can legally obtain a key to a safe but not the combination. The distinction is that providing the key merely involves a “simple surrender,” where providing the combination is equal to “giving testimony.”
So, do you have to provide your cell phone passcode under the hypothetical I provided above? No, if you’re in Broward County or Palm Beach, Florida (areas governed by the law of the 4th District Court of Appeal). The answer is not so clear if you’re in other parts of Florida. An entirely different decision was reached by the 2nd District Court of Appeal, which covers Southwest Florida. They found that surrendering a passcode is not the same as providing testimony in a criminal case. This issue will likely be resolved by the Florida Supreme Court. They typically intervene when there’s a conflict on legal issues between appellate courts.