Tell law enforcement to “Get a Warrant” with these cell phone lock screens

It is your right to refuse to grant Law Enforcement access to see what's on your phone. Technology often outpaces the law, but in this case, our tried and true Constitution has your back regarding police access to your cell phone.

Courts have decided that TWO Constitutional amendments protect you from being incriminated by your phone. The Fourth Amendment protects your privacy, and the U.S. Supreme Court ruling Riley v. California in 2014 clarified and upholds your phone's sanctity. Now recently a Fifth Amendment ruling has been issued. In August 2019, US Magistrate Judge Virginia Demarchi is the latest to rule against forced use of biometrics by law enforcement, saying such systems come under the protection of the Fifth Amendment protection against  self incrimination. Cops cannot make you give them your code, and they may not use your face or fingerprint to unlock a phone without your consent.

It does not matter if you are arrested for DUI or a violent felony, you still have rights to privacy and against self-incrimination.

If you are arrested, you will be searched, and you should refuse to speak and should NOT consent to a search of your device. As a reminder to you and to law enforcement, below are some fun and stylish ways to protect your phone and privacy from warrantless search.

FREE LOCK SCREEN IMAGES TO PROTECT YOUR RIGHTS

(Click to see full size, and then SAVE to device, and adjust your Settings to make it your lock screen)

AVOID AN ILLEGAL SEARCH OR SELF INCRIMINATION

Your cell phone is a treasure trove of intimate and personal data. It is likely half of everyone has something incriminating on their phone. Even seemingly harmless data can be twisted against you: incoming wrong numbers, Google searches, map data, social media posts. Phones are so much more than the finite contents of a wallet, purse, or pocket. Technology connects so much of our lives through a single screen. As a result, a phone is a crystal ball, into our homes, bedrooms, bank accounts, diaries, medical records, and confessionals. Fortunately, the U.S. Supreme Court saw the potential for a portable item in a pocket to reach too far. In the 2014 case, Riley v. California, the Justices ruled unanimously that a search of an arrestee's person and immediate effects was OK, but searching did not include looking into the contents of their phone.

Chief Justice Roberts clearly explains why a phone is so very different from other objects in one's pocket:

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life”. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

Police can search your person, but not your phone

When you are placed under arrest for a misdemeanor or felony, it is reasonable to expect the officer to search you. Your safety, and the safety of the officer and others are the reasons. Of course, if the cops find a bloody glove in your pocket, or stolen credit cards in your purse, those can be logged as evidence.

The legalese for this procedure is called search incident to arrest (SITA). Your body, clothes, immediate possessions, and your reachable surroundings, all count as searchable by law enforcement after an arrest. In 1969, there was a case, Chimel v. California, that clarified what counts as “reachable surroundings” the police can search and what constituted “Get a Search Warrant” for a search of the room or home. The Court upheld the Fourth Amendment protection of a man's castle.

THE FOURTH AND THE FIFTH AMENDMENTS

The Riley case brilliantly extends Chimel into the digital world. Where Chimel said you can search the man you arrested, but not the house he was in (without a warrant), Riley says you can search the arrestee, and note that he has a phone, but that phone is a magical portal to the digital realm, and is sacrosanct, like a home. Fourth amendment, For The WIN!

Privacy is one thing, but the Fifth Amendment is your right to remain silent. It extends to protecting your phone's contents from incriminating you if you are forced into unlocking it with face or fingerprint. In her ruling, Judge Demarchi explained that such unlocking using biometrics implies certain points that are the equivalent of providing testimony. “Here, compelling an individual who is a target of the investigation to use his or her finger or face to unlock a device represents incriminating testimony within the meaning of the Fifth Amendment,” she said.

Know Your Rights

If you are ever questioned by the police, or placed under arrest, you have rights. Eventually the police will read them to you, but be prepared at first contact to recite and demand your rights. 1, I choose to remain silent. 2, I do NOT consent to a search. 3, Call my lawyer. Once that is done, continue to remain silent and to not consent to searches, and clam up until you see your lawyer.

Your phone is another matter. The little shiny Pandora 's Box is enticing to a cop who wants a reason to lock you up. Cops may try to trick or threaten you in to unlocking. There are any number of excuses officers use in testimony as to how they got into a suspect's phone. “It was unlocked already.” “He consented to a search.” “He voluntarily put his fingerprint on the button.” Putting a lock screen that expresses your wishes provides another barrier to your data being illegally used against you.

Use a Lockscreen Warning to Further Protect Your Privacy and Innocence

The lock screen examples provided above can help protect your privacy during arrest. The more verbose screens have very clear instructions written out. Others are cheekier and less wordy. If you use any of these on your phone as a lock screen, your attorney will be pleased. The more wordy, the more ammo your attorney will have in case of an improper search of your device without a warrant. Let your lawyer know about the lock screen so your defense is informed of the steps you have taken to protect yourself from overly-aggressive searches.

Now YOU know about Riley and phone privacy, PLUS the 5th Amendment protections. The open item is whether all the COPS out there know they are not supposed to dig through your phone after they arrest you? Use of a lock screen to remind police of your rights most certainly can't hurt. 

SUMMARY

The answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.

Criminal Defense Attorney Joseph Tully

Author and Lawyer Joseph Tully has a passion for law practice rarely seen among criminal defense lawyers, and it drives his extraordinary record of positive outcomes. The Tully & Weiss firm's criminal law office is in Martinez California, with a second law office in Redding.

Mr. Tully and team outwork and out-prepare prosecutors to combat the California's massive law enforcement and judicial advantages over an individual. This imbalance of power against the innocent is the topic of Mr. Tully's book California: State of Collusion. Joseph Tully is a Certified Criminal Law Specialist, an elite certification awarded to less than 1% of California lawyers by the California Board of Legal Specialization.

Contact Tully & Weiss here for legal help statewide.