For many of us, our cell phones and smart phones are an extension of ourselves – full of messages, photos, contacts and important information. Allowing someone else access to this information could rightly feel like a violation of privacy. For example, in 2019 a Tampa man spent over 40 days in jail after refusing to give police his password so they could search his phone. Cases like these are raising the question as to when authorities can and cannot force you to unlock your cell phone.

In the Tampa case, William Montanez was pulled over for a traffic violation when officers smelled marijuana in his car. Soon afterward, a “suspicious” text message popped up on Montanez’s cell phone, which made the officers interested in what else was on his phone. Montanez refused to unlock the phone and forced authorities to get a search warrant. They did so a few days later, but Montanez still refused to unlock his phone. He subsequently spent 44 days in jail, but was released by an appeals court.

According to News Channel 5 Nashville, Montanez’s lawyer says “making him tell police his password would have amounted to him giving up evidence on himself and admitting the phone was his.” Part of the Fifth Amendment is the protection against self-incrimination, meaning you cannot be forced to be a witness against yourself.

Protecting yourself and your cell phone

Your cell phone is your personal property, just like the contents of your home. You do not have to offer up your passcode without a warrant. Which brings us to our next point – keep your cell phone password-protected at all times. This is not just for your personal safety, but to keep the authorities from accessing it when they should not. Preferably it should be accessible with a numeric code.

You should never give the police permission to search your phone. Not only are you giving them access to all of your contacts and text messages, but you are giving them access to all of your social media accounts as well.

About facial recognition and thumbprints

In some cases, authorities may be able to require you to unlock your phone if you use thumbprint or facial recognition technology. This is because, although case law is still murky on this, disclosing a password or passcode requires disclosing information that only you know and could possibly incriminate you. Facial and thumbprint technology, on the other hand, requires no action on your part (much like a lineup or mug shot).

The bottom line is, if you are pulled over or detained by authorities, you are not required to unlock your cell phone. Contact the local criminal defense attorneys at Delius & McKenzie, PLLC first. We represent clients facing criminal charges in Sevierville, Seymour, Gatlinburg, Pigeon Forge, and the surrounding Tennessee areas. Talk to us today about how we can help you with your case. Call us at 865-428-8780 or complete our contact form to make an appointment.