970 McHenry Avenue, Crystal Lake, IL 60014
Botto Gilbert Lancaster, PC

Call Today for Your FREE Consultation

Call Us800-338-3833 | 815-338-3838

Facebook Twitter LinkedIn

Police Blocked from Forcing Defendant to Give Phone Passcode

Posted on in Criminal Law

Police Blocked from Forcing Defendant to Give Phone PasscodeAn Illinois appellate court recently upheld a lower court ruling that police could not compel a defendant to surrender his passcode in order to access his cellphone. The court determined that forcing the defendant to give up his secured digital information would violate the Fifth Amendment to the U.S. Constitution, which protects people from self-incrimination. The ruling is the latest development in an ongoing debate about whether the contents of a digital device should be treated as simply data or akin to personal testimony in a criminal case.

Fifth Amendment

In People v. Spicer, the defendant is charged with unlawful possession of a controlled substance and possessing a controlled substance with the intent to deliver. During a traffic stop, police allegedly found a pill bottle containing cocaine inside the defendant’s car. A court approved a warrant to search the defendant’s cellphone for supporting evidence, but police could not open the phone because of the passcode. Police sought to compel the defendant to provide the passcode. The court denied the request because it would force the defendant to incriminate himself if there is damaging evidence in the phone’s contents. According to a common interpretation of the Fifth Amendment:

  • The amendment applies when the information is testimonial, incriminating, and compelled; and
  • Providing information such as a passcode is testimonial because it requires the defendant to use the contents of his or her mind.

Some legal scholars claim that the Fifth Amendment should naturally protect information on cellular devices because it is an extension of the user’s mind.

Foregone Conclusion Exception

In this case, police attempted to circumvent the defendant’s Fifth Amendment rights by using the foregone conclusion exception, which states that the Fifth Amendment does not apply when:

  • Police already know that the information exists and is authentic; and
  • The information adds little to what the police already know.

Police sought access to the defendant’s cellphone because they claim that drug dealers often have incriminating communications and records of drug distribution on such devices. The court said that it is not a foregone conclusion that the defendant’s cellphone contains evidence related to the charges because police are guessing that the evidence exists. Prosecutors argued that the foregone conclusion was the existence of the passcode, but the court replied that the issue was about the information inside the cellphone and not the passcode itself.

Contact a Crystal Lake Criminal Defense Attorney

Do not assume that you must give police your passwords to access your private information. Consult with a McHenry County criminal defense lawyer at Botto Gilbert Lancaster, PC, to determine whether that information is constitutionally protected. To schedule a free consultation, call 815-338-3838.



Illinois State Bar Association State Bar of Wisconsin Crystal Lake Chamber of Commerce Illinois Trial Lawyers Association McHenry County Bar Association
Back to Top