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If you prefer that law enforcement not have easy access to the contents of your cell phone, password protect your phone versus using the Touch ID or the Facial ID  protection features.  The reason for this is that if law enforcement is able to secure a search warrant for your cell phone, the judge might authorize the agents executing the warrant to press or swipe your fingers or thumbs to unlock the device or hold the device in front of your face to unlock the device.  But, judges are not authorizing law enforcement to force you to give your password because that is considered testimonial and you cannot be compelled to make a statement against your interests.

A warrant recently served on one of our clients to seize and search his cell phone stated:

During the execution of the cell telephone described in Attachment A, law enforcement personnel are authorized to (1) press or swipe the fingers (including thumbs) of any individual, who is found at the subject premises and reasonably believed by law enforcement to be a user of a device found at the premises, to the fingerprint scanner of the device; (2) hold a device found at the premises in front of the face those same individuals and activate the facial recognition feature, for the purpose of attempting to unlock the device in order to search the contents as authorized by this warrant.

This particular client had his phone password protected so law enforcement was able to seize the phone but it will have to use its password cracking system (described in another blog) to access the contents of the phone, a process which is not always successful.  We have also heard stories of police seizing phones during an arrest and putting the phone in front of a suspect’s face to unlock it in order to scroll through the phone.  All of is this is legally questionable in our view but we have not had a case ripe for a challenge.  When we do, we will report back!

But in the meantime, if you do not want law enforcement to easily be able to get in into your phone, turn off Facial and Touch ID and protect it with a password instead.  And call Willey & Chamberlain for help.  If the police are seizing your cell phone, you need a criminal lawyer.

Watch Britt’s video blog here: