According to a recent Illinois decision, the answer is yes if the state already had a search warrant for the phone’s contents.
In People v. Sneed, the state had obtained a valid search warrant for the contents of the defendant’s phone but could not access the phone without the passcode. The defendant refused to provide the passcode, asserting his Fifth Amendment right not to incriminate himself.
The Fifth Amendment only applies to “testimonial communication.” This means your communication must relate to a fat or disclose information. You must show your communication was testimonial, incriminating and compelled. The court held that the act of entering a passcode is testimonial to the extent it shows you have the ability to unlock the phone, you control the passcode, and the passcode is authentic. However, such a testimonial act is a foregone conclusion in that it adds little to the sum total of the state’s information. Thus, compelling a passcode is not so testimonial as to be privileged under the Fifth Amendment.
If you are charged with a criminal offense, contact an experienced attorney immediately. An attorney can review your case for your best possible defense. Did the police have a search warrant or a lawful exception to the search warrant requirement? Did the police follow the terms of the warrant? Can the state prove all the elements of your offense beyond a reasonable doubt? Even if police acted lawfully and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be better able to negotiate a more favorable plea agreeement than you could on your own.
If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.
(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)
