A plea deal struck in the circuit court deprived the Florida Supreme Court of the chance to rule whether police can force a suspect to unlock the person’s cellphone when secured by a passcode or biometric imprints like a fingerprint or facial recognition. While the question is vitally important to criminal defense attorneys in Florida who fight to ensure law enforcement officers stay within constitutional limits, the question could be relevant to law-abiding citizens who want to be sure that the government does not tread on their rights to be free from intrusion into their personal lives.
The question arose in Court during the prosecution of a so-called “drug-rip.” A drug-rip is a phrase commonly used to describe a robbery set up by arranging a drug transaction. In this case, multiple masked men confronted the victim of the robbery when the victim believed that he was going to conduct a transaction for the sale of illegal narcotics. During the ensuing scuffle, one of the assailant’s masks lifted enough to reveal some facial features. Based on the victim’s observations, he realized that he knew one of the men trying to rob him as a former high school classmate, according to a report by a Florida NPR outlet.
The victim called the police and described the suspect whom he recognized. Police located the suspect in a motor vehicle and placed him in custody. The police seized the suspect’s cellphone and tried to open it. The law enforcement officers quickly realized that a passcode prevented unauthorized access to the phone.
Prosecutors and investigators requested a court order through a search warrant compelling the suspect to unlock his phone so that the police could search it for evidence of the robbery. The government’s agents argued to the Court that locking a phone with digital encryption preventing examination of mobile devices like iPads, tablets, computers, and especially cellphones frequently frustrate criminal investigations. Investigators also frequently argue that drug-rips are arranged through text messaging or social media, all of which could be stored in a suspect’s cellphone. The government also added that their case was similar to a case in which a Florida court ordered a suspect to turn over a key to a lockbox that police possessed the authority to search.
The defense in the drug-rip case argued that the police were overreaching and invading on the suspect’s private information that bore no relevance to the robbery. Investigators asked the Court to allow them to download all of the contents of the suspect’s phone, including texts, photos, contact information, and GPS points.
A judge in the circuit court ordered the suspect to unlock his phone. The defendant appealed the circuit court judge’s ruling to the First District Court of Appeal. The justices in the First District Court of Appeal overturned the circuit court judge’s ruling. Not every judge who heard the case for the First District Court of Appeal agreed the case should be overturned.
The majority of the justices from the circuit court ruled in favor of protecting the defendant’s rights. It ruled that the suspect should not be compelled — in this case — to open his phone for the police. The Court said that compelling a suspect to turn over a passcode or to unlock a device violates the rule against self-incrimination guaranteed by the Fifth Amendment to the U.S. Constitution. In other words, forcing the defendant to unlock his phone is just like forcing the defendant to admit he committed the crime.
The justices writing for the majority expressed another concern as well. They wrote that the police were on a “fishing expedition” in this case, meaning that the police only had a hunch that the suspect’s cellphone contained incriminating evidence of the robbery. The Court was concerned that the police were going to examine every computer file in the suspect’s phone without legal justification with the hope that they would find something linking the suspect to the crime through his phone.
The First District Court of Appeals made another interesting point as well. The victim’s identification of the suspect was reliable. The victim said he recognized the suspect from high school and knew who he was when his face became uncovered in the brawl. The appeals court found that evidence compelling, which meant that the need for the police to dig though the suspect’s cellphone was unnecessary. This case might have come out differently if the identification evidence was weaker, or the scope of the warrant was narrower. However, the police, in this instance, could not limit the scope of the warrant because they had no idea if the suspect used his phone to facilitate the robbery.
A plea bargain, in this case, renders the question moot, for now. There is little doubt that it will resurface soon, giving the Supreme Court of Florida a chance to hear a case on the subject and establish a rule for Florida. Other states’ highest courts have ruled, and the results vary depending on where the case was heard. Some states’ courts have ruled that police could compel a suspect to open a phone. In contrast, others say that doing so violated the suspect’s Fourth and Fifth Amendment rights. Still, another court ruled that opening a cell phone is “non-testimonial” and is not protected by the Fifth Amendment, similar to the argument prosecutors made about the key to the lockbox.
The investigators, in this case, followed the precedent established by the U.S. Supreme Court about six years ago. In Riley v. California, 573 U.S. 373 (2014), Chief Justice Roberts writing for the Court announced the ruling that police must obtain a search warrant before examining a suspect’s cellphone. In Riley, the Court acknowledged that people store an immense amount of personal data in their phones or can access a substantial amount of personal data through processes facilitated by smartphone technology to such an extent that cellphones might have more personal information in them than some homes.
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