Aggressive Criminal

Uncertainty still exists around law enforcement access to phones

On Behalf of | Criminal Defense |

The case of a former CIA officer who at one point pled guilty to drugging and sexually assaulting multiple women exemplifies how uncertain the law still is when it comes to law enforcement officers accessing cellphone data when a phone requires a password, fingerprint or facial recognition to unlock.

Investigators found hundreds of photos on the man’s phone that he had taken of himself with the incapacitated women whom he met on dating sites when he worked for the government, both in the U.S. and other countries.

How many times can someone be required to unlock their phone?

He has since withdrawn his guilty plea and his legal team is challenging the legality and constitutionality of how federal agents obtained access to two iPhones. Here’s what happened.

Federal agents got a warrant to seize the phones. The warrant authorized them to require him to unlock them. The agents took the phones with them, but they couldn’t unlock them again. They went back twice more to have him unlock his phone. Finally, they got him to hand over his passcode. 

The defendant says the agents told him they had a right to require him to repeatedly unlock the phones under that original warrant and disclose his passcode. His attorneys argue that warrants typically can only require a person to unlock their phone once. Further, while a person can be ordered via a warrant to enter their passcode to unlock their phone, if that’s the method they use, they aren’t required to give law enforcement that passcode.

The fact that the agents didn’t get and retain the evidence they needed when he initially unlocked the phone certainly showed a lack of forethought, at the very least. Everything they did afterwards, according to his attorneys, was a violation of his rights – making the photos they obtained from the phone what’s known as “fruit of the poisonous tree” because it’s evidence obtained illegally – and therefore unusable in the case.

Protect your rights

Regardless of how this case turns out, it provides important lessons for anyone who is faced with an officer asking or demanding to see or have them unlock their phone. While you may not know whether an officer is acting legally, these are the kinds of things that can be used to have evidence – and possibly an entire case – tossed out. That’s why having sound legal guidance following an arrest is critical.