Neil Rockind, founder of Southfield-based criminal defense law firm, Rockind Law, says it’s a new legal question for the digital age: “Can the police compel someone to turn over his or her mobile phone passcode when a search warrant has been granted for the phone?” According to Rockind, the answer is no — and that is the position he’s taking in an ongoing case.
“Our firm has a current case where the police arrested our client and, having a search warrant for his mobile phone, demanded the passcode as well,” Rockind said. “An attorney from our firm, who is acting as my co-counsel in the case, rightly refused, despite threats from the officer of holding my colleague and our client in contempt of court.”
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Rockind says technology advances don’t change the fact that a person cannot be sanctioned for refusing to disclose information that is known to him or her or be compelled to share that information with law enforcement.
“It’s an old school protection afforded by the defendant’s constitutional rights,” says Rockind.
?He sites a variety of constitutional rights and legal guidelines to reinforce his stance:
The Fifth Amendment to the U.S. Constitution protects defendant from compelled self-incrimination: “…nor shall [a person] be compelled in any criminal case to be a witness against himself.” A person is protected from having to provide testimonial evidence against himself, i.e., being forced to “reveal his knowledge of facts relating him to the offense” or “share his thoughts and beliefs with the government.” United States v. Kirschner, 823 F. Supp. 2d 665, 668 (E.D. Mich. 2010). The United States Supreme Court applied this reasoning in protecting a target from being compelled to catalogue responses to a subpoena duces tecum, likening it to forcing a person to disclose a combination to a wall safe. In United States v. Hubbell, 530 U.S. 27 (2000), the Supreme Court applied the Fifth Amendment in a similar scenario to the case at bar.
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“In short, an accused cannot be compelled to disclose a passcode to a mobile phone. Forcing one to disclose a passcode is testimonial in nature in that it requires an individual to disclose matters known to him and in his mind; information that could arguably connect one to its contents, contents that law enforcement deems incriminating,” Rockind said. “The Fifth Amendment protects individuals from this compelled disclosure.”
Rockind continues that it’s another example of the importance knowing one’s rights.
“It is important that individuals know their rights - as well as the limitations of law enforcement. Merely because the police say that we must do something doesn’t mean we must,” Rockind said. “I’m trusting the outcome in this current case on mobile phone passcodes will affirm that.”
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