You Have the Right to Remain Silent, But Does this Extend to Your Cell Phone?


“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” The Miranda warning, also known as Miranda rights, is typically given by police to criminal suspects in police custody. This means you have the right to refuse to answer questions or provide information to law enforcement or other officials.  


But what does this mean concerning your cell phone? Do you have to give your cell phone and password to law enforcement? In Florida, the answer is not a simple one.  


Know Your Rights 


If you are stopped and questioned by law enforcement, it is recommended that you remain calm and do not argue or obstruct an officer.  


  • You are allowed to ask if you are free to go or if and why you are being arrested.  
  • And you are allowed to remain silent and can’t be punished for refusing to answer questions. 
  • While you are expected to identify yourself, you can tell an officer that you wish to remain silent. 


Additionally, you are not required to give permission to have your body or belongings searched. Officers may search you if they suspect you have a weapon. Do not physically resist. If you do consent to a search, this could later hurt you in court. 


Learn More > When Police Want to Seize Your Cellphone  


Can the State Require Me to Produce Testimonial Evidence? 


In Florida, there are two approaches to answer this question. Some courts will examine whether a “foregone conclusion” exception allows the State to “compel the production of testimonial evidence.” On the other hand, other courts may determine that the State can compel someone to provide testimonial evidence if the value of doing so is negligible. 


Each approach requires a framework that answers two questions:  


  1. Is the compelled production of a cell phone password a testimonial, and is it a potentially incriminating act? 
  2. If that answer is yes, the second question must be, “Is the compelled password production permissible under the foregone conclusion exception?” This would be because the testimonial value is of no consequence as the State is already aware of the requested information. 


Who Owns the Cell Phone & What’s On It? 


After successfully answering the above questions, the court must then determine if the issue is what’s on the cell phone or who owns it. If the intended target of law enforcement’s inquiry is what’s on the cell phone and the State can give “reasonable particularity” that the files are relevant to a criminal investigation, then no violation of the individual’s constitutional rights has been made.  


If, however, the cell phone owner is in question, then any individual providing the password to it could be incriminating. Additionally, the court must investigate whether the detained individual waived his or her right not to be compelled to produce testimonial evidence. 


Bottom Line 


The State must provide the required prior knowledge that a cell phone contains evidence that can compel an individual to provide the password.  


In the precedent case Pollard v. State, the Court opinion stated, “It is not enough for the State to infer evidence exists; it must identify what evidence lies beyond that passcode wall with reasonable particularity.”  


Related Reading > Caught on Camera? Why Video Evidence isn’t Always Allowed in Court 



Schedule a Consult with a Tampa Bay Defense Attorney 


If the State of Florida is investigating or prosecuting you or a loved one, you must maintain your Fifth Amendment right to remain silent. Experienced attorneys Ben Stechschulte and Amy Nell work to discover if your rights have been violated and provide the highest quality criminal defense representation in the Tampa – St. Petersburg area. Schedule a case review or call Stechschulte Nell today at 813-280-1244. 

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