DUI arrests don't always lead to convictions in court. Police officer mistakes, faulty breathalyzers and crime lab errors may get your charges reduced or dismissed. Visit our California DUI page to learn more.
The police just arrested you for DUI and they made you unlock your phone so that they could look through it. Can they really make me unlock it?
The answer largely depends on the state in which you live. Some jurisdictions say that law enforcement personnel can make you unlock your phone (usually by either entering a password or scanning a fingerprint).
But other states say that the police cannot, and that forcing you to do so is a violation of your Fifth Amendment rights regarding self-incrimination.
Note, however, that when it comes to the specific act of searching your phone, police generally need a valid search warrant to do so.
1. Can authorities make you unlock your phone?
States are split on the issue of whether or not the police can legally force you to unlock your phone. The issue is sometimes referred to as “compelled decryption.”
Some state court decisions have ruled that the police cannot force you and that you have the right to refuse a police officer’s request to unlock your phone. In these states, the police typically need a court order to make you unlock your device.1
A few states that say you can refuse a request to unlock your phone include:
Other state courts, however, have ruled that you do not have the right to refuse a request to unlock your phone.2 This means the police can legally compel you to unlock your cell phone or smartphone.
A few states that say you cannot refuse a police request to unlock your phone include:
New Jersey, and
At issue in these cases is the Fifth Amendment to the U.S. Constitution, which says that you cannot be compelled to incriminate yourself. While some courts say that a right to refuse is consistent with the protections of the Fifth Amendment, other states say that a right to refuse is not protected by it.
States will likely adopt and enforce their own laws until the U.S. Supreme Court decides to rule on the issue.
2. Can the police search your phone without a warrant?
The general rule is that the police must have a search warrant to legally search your phone.3 This includes searches of:
any text messages, and
cell phone data (including personal data).
A judge will typically issue a search warrant once the police show probable cause that the place to be searched contains evidence of criminal activity.
The warrant requirement is based on the Fourth Amendment to the U.S Constitution. Your Fourth Amendment rights include protections from unreasonablesearches and seizures by the government.
3. Are there exceptions to the cell phone search warrant requirement?
Yes. There are two main exceptions to the general rule requiring the police to obtain a warrant before they can search your phone.
The first is that the police can search your phone if you consent to the search.4
The second is that a police search of your phone is authorized if there are exigent circumstances. This means that law enforcement can search your phone if they have to act quickly in order to prevent:
bodily harm to someone or the destruction of property,
the destruction of evidence, or
the escape of a suspect.5
Note also that the criminal laws of most states say that if the police do not have a search warrant and you are under arrest, the police can:
seize and hold onto your phone, and
try to get a warrant to search it.6
4. What if the police conduct a warrantless search?
There are times when the police conduct a warrantless search of a phone and, in doing so, find evidence of criminal activity.
In these cases, you can likely file a motion to suppress evidence where you ask the court to exclude evidence because it was obtained via an illegal search.7
If a judge grants the motion, then the prosecutor in your case is barred from introducing the evidence at trial or during any other court hearing.
5. Should you contact a criminal defense attorney for help?
Yes. You should contact a criminal defense lawyer or law office for legal advice if the police forced you to unlock your phone and/or searched it.
The criminal laws on these issues are complex, and they can vary among different states. A defense attorney or law firm will be able to educate you on the applicable laws that specifically apply to your case and inform you on how they impact you.
If the police searched your phone and you face criminal charges, a defense firm can look at the facts of your case to see if it is possible to file a motion to suppress. If you do and succeed, a judge may dismiss your case in its entirety.
In our experience with these cases, legal help is necessary to gain the full protections of the Fourth and Fifth Amendments.
See, for example, California Penal Code 1538.5 PC.
About the Author
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.