By Drew Hushka
Can law enforcement order a person to unlock his or her phone or electronic device? That question has perplexed courts for years. Generally, a search warrant allows law enforcement to search a device without violating the Fourth Amendment. But, as countless legal procedurals have informed the public, the Fifth Amendment grants persons the “right to remain silent.” Does compelling a person to unlock a device prevent that person from remaining “silent” in violation of the Fifth Amendment?
Courts have near-uniformly determined requiring a person to unlock a device is compelled speech. But, despite the right to remain silent under the Fifth Amendment, that does not end the inquiry. Under the “foregone conclusion” doctrine, law enforcement can compel speech without violating the Fifth Amendment if the content of the speech is a foregone conclusion—if law enforcement independently knows the answer.
But how does the foregone conclusion doctrine apply to unlocking devices? Courts fall into two separate camps when assessing what is communicated when a person is compelled to unlock a device. In the first camp, courts find a person unlocking a device only communicates that they know the password. Accordingly, such courts hold law enforcement can require a person to unlock a device if they can independently establish the person knows the password.
In the second camp, courts find unlocking a device implicitly communicates more than mere knowledge of a password; it also communicates control of the device and its contents. Accordingly, courts in the second camp only permit law enforcement to compel the unlocking of a device if law enforcement can independently prove the person: (1) knows the password, (2) controls the device, and (3) controls the content of the device.
The importance of these separate is what is known as a “circuit split.” Because the separate camps apply the Fifth Amendment differently, and because a person’s rights under the United States Constitution should be equal regardless location, the United States Supreme Court is more likely to issue a definitive ruling when high courts reach differing conclusions. In Seo v. State, the Indiana Supreme Court—the highest state court in Indiana—recently established residence in the second camp, splitting from other jurisdictions. This split increases the chance the United States Supreme Court may soon determine which camp is the correct camp, and what law enforcement must prove before it can compel a person to unlock a device.
The appellate courts in North Dakota and Minnesota have not established residence in a respective camp. Nevertheless, if you, or someone you know, is subject to a warrant requiring the unlocking of a device, it is important to fully understand what law enforcement can and cannot require. If you have any questions, do not hesitate to contact Vogel Law Firm at 701-237-6983, or send an email to [email protected].
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