Protect Yourself Against Police Invasion of Your Cellphone
by Douglas Ankney
In Riley v. California, 573 U.S. 373 (2014), the U.S. Supreme Court recognized the reality that the amount of data people keep on their cellphones is almost beyond measure. The Riley Court ruled that police must comply with the Fourth Amendment warrant requirement—both the “probable cause” and the “particularity” clauses—before searching your device. When lawful process is observed, they are not to examine its contents without a warrant after seizure.
But as is common knowledge, the police consistently fail to respect people’s constitutional rights. Therefore, the better practice is to arm ourselves with password protection of a locked cellphone. Under the Fifth Amendment, we do not have to provide police with our passcodes unless, and until, the government overcomes our privilege against compelled self-incrimination. This right dates back to fourth-century thinker Saint John Chrysostom, who argued that no one should be required to confess their sins publicly as it discourages people from confessing at all.
By the seventeenth century, English common law clarified that persons have a right not to be interrogated under oath. The right achieved widespread recognition after the infamous Star Chamber sentenced prominent natural rights thinker John Liburne to approximately 500 lashes because he refused to testify against himself. While the Star Chamber was abolished just four years later, the right to be free from forced self-incrimination lived on as testament to one of the “truths we hold self-evident.”
When police seize your cellphone, the issue is not whether you think you have nothing to hide. Police are rewarded by their superiors for finding evidence of crimes and for making arrests—often for things the unsuspecting person does not even comprehend as being a crime. Their bosses do not encourage the police to respect the Constitution. Consequently, when police seize your cellphone, they should not be permitted to see anything past your locked screen unless, and until, proper legal process is observed.
Do not provide police an unlocked cellphone or your passcode in reliance upon your Fourth Amendment protections. Once police have an unlocked cellphone in their possession, they can (and apparently often do) scour those cellphones in “off-the-record” unlawful searches.
Trial courts are then known to permit otherwise unlawfully seized evidence into trial based upon one or more of the numerous exceptions to the warrant requirement. But even if a prosecutor is unable to get the unlawfully seized evidence admitted at your trial, the collateral damage done to you manifests itself in diverse ways. While all of those possible avenues of harm to you cannot be recounted here in this short article, one example is the effect such evidence has upon you at the time of sentencing in the event that you are found guilty of any offenses based upon other lawful evidence.
For example, under the legal principle known as “uncharged conduct sentencing” and “acquitted conduct sentencing,” the judge imposing the sentence may consider unlawfully seized evidence when determining the severity of your sentence for your current conviction, based upon the preponderance of the evidence that you “probably committed other crimes.” (See: CLN, March 2022, p.1.)
Additionally, armed with unlawfully seized evidence, police and prosecutors can pressure you into falsely confessing to crimes you did not commit by threatening to charge you with much higher-grade crimes carrying significantly more punishment. This tactic, known as “coercive plea bargaining,” underpins criminologists’ estimates that each year somewhere between two and eight percent of people who plead guilty are factually innocent of the crimes to which they pleaded guilty. These are just two of the many routes unlawfully seized evidence harms you and benefits the government prosecuting you.
When police do not have your passcode, the dynamic dramatically changes. The police must then align themselves a little more with the constitutional rules of fair play, e.g., convince a magistrate they have reason to support a probable belief that there is evidence of particular crimes located in specific files on your phone and secure a warrant to search those files for that evidence.
Should police secure that warrant, you would, in most instances, be required to surrender your passcode. However, even then, to safeguard yourself, you may petition the court that your attorney be present when the search of the phone is conducted to ensure that only those files authorized by the warrant are searched.
Source: reason.com
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