The Florida Supreme Court recently declined to consider whether law enforcement can legally force defendants to reveal their cellphone passcodes. In the case of Pollard v. State, 287 So. 3d 649, out of the Eighth Judicial Circuit in Alachua County, prosecutors sought to force the defendant to reveal the passcode to his cellphone as part of their criminal investigation. The case reached the Supreme Court of Florida; however, because the case was dismissed by the state attorney’s office, it will no longer be reviewed by the highest court in Florida.

This topic is a continuous debate between court systems and law enforcement throughout Florida and across the United States. Currently, two of the five Florida district courts are divided on the issue of requiring defendants to provide police with their cellphone passcodes. The 2nd District Court of Appeals which covers counties in the Southwest regions of Florida, has ruled a search warrant can require a defendant to provide their passcodes. In contrast, the 4th District Court of Appeals which covers counties in the Southeast regions of Florida, has ruled requiring a defendant to reveal their cellphone passcodes is unconstitutional violating a defendant’s Fifth Amendment rights against self-incrimination.

In the 5th District Court of Appeals (DCA), which covers the Central Florida regions including the counties of Lake, Osceola, and Orange; the court has not been presented with a case to rule on whether a search warrant required a defendant to unlock their cellphones. The 5th DCA has ruled on other situations involving the search of a cellphone. The court adopted the ruling in the case of Smallwood v. State, 113 So. 3d 724, which found that police needed to obtain a warrant to search a phone upon seizing it once an arrest had been made. The 5th DCA has also ruled on specific situations where a warrantless search of a cell phone is applicable. In the case of State v. Phillips, 266 So. 3d 873, the court found that a defendant on probation for sexual offenses created a greater public interest to justify a cellphone search without a warrant.

Although there is a divide among the Florida district courts on this issue, there are occasions when police officers may search a cell phone without obtaining a warrant. These include a cellphone that has been abandoned by its owner and when an individual has provided consent for police to search.

As individuals, we hold a clear expectation of privacy regarding the contents of our cell phones. Bank accounts, pictures, text messages, social media logins, and email accounts are all stored on our phones. These vast amounts of personal digital information should not be subject to police investigations without violating our amendment rights.

Each individual case presents a different set of facts, evidence, and charges to determine whether a search of a defendant’s cellphone is valid. If you have found yourself involved in any of the following situations or have other concerns regarding a cellphone search, it is important to consult with an experienced attorney regarding your constitutional rights.

I am currently under investigation and have provided police with my cellphone or have given consent to search.
I expect the police to obtain a warrant to search my phone.
I have been charged or expect to be charged with a violation of probation and do not know whether the police will obtain a warrant to search my phone.
I was arrested and my phone was seized by police.

Until the Supreme Court of Florida has made a decision that is binding on the entire state, there are several factors that will determine whether police officers can legally force you to provide the passcode to your cellphone.