Neil Rockind, founder of Southfield-based criminal defense law firm, Rockind Law, says it’s a new legal question for the digital age: “Can the police compel someone to turn over his or her mobile phone passcode when a search warrant has been granted for the phone?” According to Rockind, the answer is no — and that is the position he’s taking in an ongoing case.
“Our firm has a current case where the police arrested our client and, having a search warrant for his mobile phone, demanded the passcode as well,” Rockind said. “An attorney from our firm, who is acting as my co-counsel in the case, rightly refused, despite threats from the officer of holding my colleague and our client in contempt of court.”
?
Rockind says technology advances don’t change the fact that a person cannot be sanctioned for refusing to disclose information that is known to him or her or be compelled to share that information with law enforcement.
“It’s an old school protection afforded by the defendant’s constitutional rights,” says Rockind.
?He sites a variety of constitutional rights and legal guidelines to reinforce his stance:
The Fifth Amendment to the U.S. Constitution protects defendant from compelled self-incrimination: “…nor shall [a person] be compelled in any criminal case to be a witness against himself.” A person is protected from having to provide testimonial evidence against himself, i.e., being forced to “reveal his knowledge of facts relating him to the offense” or “share his thoughts and beliefs with the government.” United States v. Kirschner, 823 F. Supp. 2d 665, 668 (E.D. Mich. 2010). The United States Supreme Court applied this reasoning in protecting a target from being compelled to catalogue responses to a subpoena duces tecum, likening it to forcing a person to disclose a combination to a wall safe. In United States v. Hubbell, 530 U.S. 27 (2000), the Supreme Court applied the Fifth Amendment in a similar scenario to the case at bar.
?
“In short, an accused cannot be compelled to disclose a passcode to a mobile phone. Forcing one to disclose a passcode is testimonial in nature in that it requires an individual to disclose matters known to him and in his mind; information that could arguably connect one to its contents, contents that law enforcement deems incriminating,” Rockind said. “The Fifth Amendment protects individuals from this compelled disclosure.”
Rockind continues that it’s another example of the importance knowing one’s rights.
“It is important that individuals know their rights—as well as the limitations of law enforcement. Merely because the police say that we must do something doesn’t mean we must,” Rockind said. “I’m trusting the outcome in this current case on mobile phone passcodes will affirm that.”
- Posted June 23, 2016
- Tweet This | Share on Facebook
Defense attorney says new law does not compel mobile phone password
headlines Oakland County
- Annual Dinner & Meeting
- FORCE Team arrests six in prolific auto theft ring
- Michigan allocates $12 million to support community-based organizations in advancing environmental and climate justice
- Oakland County and SMART launch pilot program providing free transit for veterans and dependents
- Supreme Court sides with the Consumer Financial Protection Bureau
headlines National
- More lawyers—and clients—want to learn about sustainable development practices
- Top artificial intelligence insurance tips for lawyers
- Lawyer charged with illegally transmitting Michigan data after 2020 election
- Viral video shows former Rikers Island inmate as she learns she passed bar exam on first try
- How Sullivan & Cromwell is scrutinizing potential new hires after campus protests
- No separate hearing required when police seize cars loaned to drivers accused of drug crimes, SCOTUS rules