Can the Government Search a Cellular Phone Protected with a Password?

In an earlier article, I addressed the question of whether the government could search information contained on a cellular phone seized incidental to the arrest of the owner of the phone. In that article it was determined that the general consensus of the law was that such searches would be valid, absent special circumstances.

The technological advancements of the cellular phone industry, develops in leaps and bounds, almost yearly. Today, many of the cell phones will not operate unless the user can successfully enter a password. The next question, therefore, is whether the government can attempt to break the password to obtain access to the information contained in the phone. A corollary to this question is whether the government could interrogate the defendant to obtain the password.

A. Breaking the Password

In many of the cases addressing the issue of whether the government many break the password on a cell phone seized incidental to an arrest, the courts will often begin their analysis with New York v. Belton, which allows law enforcement agents to open closed containers incidental to arrest. In those cases where the court follows the reasoning in Belton police officers have been allowed to open containers that have been locked.

Creative lawyers have sought to spin this academic principle into a more sophisticated analysis that relates to whether the container or phone was on the person at the time of the arrest or merely near the arrestee at the time of arrest. The core of this argument is influenced the "zone of danger" test created by Chimel v. California, which is a case that allows incidental searches only within the area of the arrestee’s general reach or control. Another issue used by creative defense attorneys to test the government’s effort to break the password on the cellular phone is the time needed to successfully locate the password, enter the phone and to collect the information . This issue is rooted in that part of the opinion in Arizona v. Gantt, which concluded that incidental searches must be contemporaneous with the arrest. When viewed together, these two concepts seem to suggest that if the phone is on the person of the arrestee at the time of his/her arrest, the time in which the government can use to break the password will be extended. If, however, the phone is not on the person, but in proximity to the person the contemporaneousness concept developed in Gantt decision should apply.

While a number of cases have embarked upon an analysis of these two standards, the results vary. As usual in issues of this nature, it appears that the specific facts of each case will turn the court's decision. There are a number of cases, however, where the law has allowed searches incidental to arrest even when conducted 60 minutes after the arrest.

It should also be remembered that the new iPhones have security systems, which will shut down the phone for a period of time, if the password is incorrectly entered. If the password is incorrectly entered on more than ten occasions, the contents of the phone will be deleted.

B. The Fifth Amendment Issue.

It would seem that by necessary implication that before a law enforcement agent can request a defendant to disclose a cellular phone password after an arrest, the principles of Miranda v. Arizona should apply. Thus, if a police officer obtains a defendant’s password prior to a Miranda warning that information will be suppressed. Unfortunately, the information produce as a resulting of the search of the phone may not be suppressed and that is so, because the fruits of the poisonous tree doctrine does not apply to Miranda violations.

For more information on this interesting issue, see the November 2011 issue of the “Campion”, a magazine published by the National Association of Criminal Defense Attorneys.