This post is the product of a discussion I had recently with a law professor who’s writing a law review article on police officers’ ability to search a cell phone under the search incident to arrest (“search incident”) exception to the 4th Amendment. His article focuses on two issues: One is the extent to which searching a cell phone is within the scope of the search incident exception; the other is what officers do if the cell phone they want to search is password protected, which is the issue this post deals with.
I’ve done at least one post that dealt with using the search incident exception to search the contents of a cell phone; as I noted in that post, courts have that the exception can justify searching through the contents of a cell phone lawfully seized in the course of effecting an arrest. In those and the other cell phone search cases I’ve seen, though, the cell phones weren’t password protected . . . so the officer’s searching them was operationally analogous to an officer’s opening a briefcase (or a purse) and searching it.
What happens if the cell phone’s contents are password protected? To analyze the issues that circumstance raises, we need a scenario to provide the factual basis of our analysis: Assume Officer Doe arrests John Roe for operating a stolen vehicle. Doe clearly has probable cause to make the arrest, and since he’s arrested Roe, the search incident exception clearly applies to authorize a search of Roe’s person, which includes whatever he has in his pockets. As Doe searches Roe, he finds a cell phone in one of Roe’s pockets, seizes it and starts to look through the contents of the phone for, say, text messages or contacts. The phone, though, is locked – password protected.
The issues we’re going to analyze are what happens if Doe turns to Roe and says something like, “Your phone’s password protected . . . I need to search it, give me the password.” We’re going to analyze these issues because (i) they’re likely to come up at some point and (ii) the outcome of the analysis (and even some parts of the analysis) aren’t all that clear. Before we start, though, I want to note what we aren’t concerned with here: This post is about analyzing the Miranda and/or 5th Amendment issues that arise if Doe asks for the password (or demands it). It isn’t about cracking the password or how officers could use a search warrant/other process to get access to information stored on the phone and/or in Roe’s user account. All we’re concerned about is the Miranda and/or 5th Amendment implications of Doe’s asking Roe for the password.
We’ll start with the 5th Amendment (because Miranda somehow derives from the 5th Amendment). As I’ve explained in several posts, to claim the 5th Amendment privilege against self-incrimination three conditions must exist: You must be (i) compelled to give (ii) testimony that (iii) incriminates you. “Compulsion” under the 5th Amendment means a court is ordering you to testify. As the U.S. Supreme Court explained in Doe v. U.S., 487 U.S. 201 (1988), historically the privilege against self-incrimination was
intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts, which would incriminate [someone]. Such was the process of the ecclesiastical courts and the Star Chamber -- the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source.
Doe v. U.S., supra. As the Supreme Court has explained in a number of decisions, the privilege was designed to protect witnesses subpoenaed to testify in a court proceeding from the “cruel trilemma of self-accusation, perjury or contempt.” Murphy v. Waterfront Commission, 378 U.S. 52 (1964). In other words, those summoned by the Court of Star Chamber had three bad choices: (i) refuse to testify and be locked up until they did; (ii) testify but lie, which constituted perjury (a capital crime at the time); or (iii) tell the truth and, in so doing, implicate themselves in a crime. The 5th Amendment privilege gives us a fourth option -- refuse to answer and not be locked up – as long as the three elements needed to invoke the privilege exist.
In our Doe-Roe scenario, we don’t have judicial compulsion. Doe can’t order Roe to tell him the password and if Roe refuses, lock him up until he does or, if Roe lies, have him prosecuted for perjury and sent to jail. Even without Miranda, Roe could simply refuse to answer. Do we have the other two elements needed to invoke the privilege? I’m going to defer “testimony” because it comes up in the Miranda analysis and we’ll assume, for the purposes of analysis, that giving up the password would incriminate Roe. That’s all moot, however, because we don’t have “compulsion.”
That brings us to Miranda. As Wikipedia notes, there is another, older standard that governs police interrogations – the due process voluntariness test. It derives from a 1936 U.S. Supreme Court decision and still applies to interrogations. Starting in the 1950s, several Supreme Court Justices wanted the Court to adopt a new interrogation law standard, one that, among other things, gave the suspect the right to an attorney. By 1966, things had come together and the Court handed down the Miranda decision, which established the Miranda rules officers must implement in interrogations. In order to justify the new rules, Justice Warren, who wrote the majority opinion in Miranda, said, over and over, that the rules were “based on” the 5th Amendment privilege against self-incrimination. He never said – because he couldn’t – that they were required by the 5th Amendment; as I noted above, the requirement of “compelled” self-incrimination simply doesn’t exist in the interrogation room (or in on the scene interrogations). If you read the Miranda dissents, you’ll see dissenting Justices pointed out, quite accurately, that the 5th Amendment privilege had never been considered to apply to police interrogations. But they were in the minority. A majority of the Court voted for the Miranda rules, so they came into existence and we still use them.
Getting back to Doe and Roe: Roe has been arrested so he’s in “custody” and once you’re in custody (your freedom of movement has been restrained by an officer) you’re entitled to be Mirandized. We’ll assume Doe gave Roe the Miranda warnings before asking for the password and we’ll further assume Roe invoked both his rights to silence and to an attorney. . . which meant Doe could not then “interrogate” Roe. Interrogation is any words or acts by a police officer that he/she should know are reasonably likely to elicit an incriminating statement.
Doe asks Roe for the password. We’re going to assume Roe gives it to him. Roe could do this by telling Doe the password. I don’t want to use that most likely option because I don’t want Roe to speak the password; speaking sounds too much like “testimony” and I want to make the analysis here as difficult as possible. So we’re going to assume Roe’s cell phone’s password protection is based on biometrics, i.e., fingerprint recognition. I’m using that option because while it may not yet exist, it will, probably soon (and because it makes sense to me . . . it’s a lot easier than remembering complex passwords).
So Doe asks Roe for the password and, instead of saying anything, Roe puts his finger on the cell phone’s sensor, it reads his print and unlocks the phone . . . thereby creating two issues. The first is whether Doe has “interrogated” Roe in violation of his invoked Miranda rights . . . and the answer to that, I think, depends on whether Roe’s putting his finger on the sensor is “testimony” under the 5th Amendment.
In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Supreme Court incorporated the 5th Amendment’s requirement of “testimony” into Miranda. Under the 5th Amendment, I can invoke the privilege against self-incrimination and refuse to testify (which the Court has defined as “communication” that “explicitly or implicitly” relates a “factual assertion” or “discloses information”) but I can’t invoke it and refuse to walk a straight line, say. The Court has consistently held that the 5th Amendment doesn’t apply to physical actions, like walking or, in the Muniz case, slurring speech because you’re drunk. It held that Miranda did not require the suppression of “slurring of speech and other evidence of lack of muscular coordination” an officer obtained without giving Muniz the Miranda warnings because they were physical movements, not testimony. Pennsylvania v. Muniz, supra.
So, is Roe’s putting his finger on the sensor “testimony?” A defense attorney might argue that it is – that it’s using a physical movement to answer a question. A defense attorney might point out that if Doe had asked Roe, “do you know the password?” and Roe had nodded, the nod would clearly constitute “testimony.” The defense attorney would then argue that Roe’s putting his finger on the sensor was the same thing, i.e. a way of answering the question by providing the password. A prosecutor might argue that it isn’t testimony because Roe’s putting his finger on the sensor neither constituted a factual assertion nor disclosed information; a prosecutor would probably argue that it’s analogous to Muniz’s slurred speed and unsteady walk or to the early twentieth century case in which the Supreme Court held that a suspect’s 5th Amendment rights weren’t violated when he was required to put on a particular shirt (one worn by a bank robber) and walk in front of the jury. The Court said that was physical evidence, not testimony.
There’s no clear answer there but for the purposes of analysis we’ll assume a court finds that Roe’s putting his finger on the sensor was testimonial (simply because I want to go on to a related issue). All that means is that the court will suppress evidence that Roe put his finger on the sensor: In U.S. v. Patane, 542 U.S. 630 (2004), the Supreme Court held that since the 5th Amendment privilege only applies to testimony, and since Miranda is based on the 5th Amendment privilege, a Miranda violation (i) requires the suppression of statements obtained in violation of its requirements but (ii) doesn’t require suppressing “physical fruits” of the violation. In other words, the court would suppress evidence that Roe put his finger on the sensor (which I assume would be the only “testimony” he gave) but wouldn’t suppress the “fruits” of that testimony, i.e., whatever Doe finds in the phone.
Let’s address one more issue and then I’ll end this already overlong post: As I’ve noted in several posts, the Supreme Court has also held that while you can’t invoke the 5th Amendment privilege as the basis for refusing to provide physical evidence, you can invoke the privilege for the act of producing physical evidence if that act constitutes “testimony.” As I explained in those posts, for the act of producing evidence to constitute “testimony” it must (i) concede that the thing exists (which it must if you’re going to produce it), (ii) concede that it’s in your possession or control and (iii) authenticate the evidence (e.g., you’re handing over what they asked for). As I’ve also noted, producing evidence won’t be testimonial if its existence, your possession of it and its authenticity are all a “foregone conclusion.”
How does this scenario come out if Roe’s act of placing his finger on the sensor is a testimonial act of producing evidence (i.e., the contents of the phone)? A defense attorney could argue that putting his finger on the sensor was the “act” by which Roe “produced” the evidence (which we’ll assume is incriminating) Doe eventually found in the phone . . . an act which conceded that the information existed, demonstrated that it was in Roe’s control and authenticated it, i.e., prosecutors could use the fact that Roe controlled access to the phone to link him to whatever’s found in it. If putting his finger on the sensor is a testimonial act of production, it was testimony obtained in violation of Miranda . . . . which means? . . . what? . . . that not only the act of putting his finger on the sensor but the information police obtained as a result of that act would have to be suppressed?