Katie Basalla, Associate Member, University of Cincinnati Law Review
Like all areas of the law, Fourth Amendment doctrine must adapt to ever-changing technologies. This becomes increasingly difficult in an era of social media and smartphones. One device can hold thousands of pieces of information, ranging from finances to intimate conversations. Traditionally, the Supreme Court has held that an individual does not have a privacy interest in information divulged to third parties. In Riley v. California, the Court held that due to the fast amount of information stored on a cell phone and its unique character, people have privacy interests in information stored on their cell phones, despite the fact that it was exposed to third parties.  The implication of this ruling is that officers may seize a cell phone from a person as a search incident to arrest, but may not search the cell phone’s contents without a warrant.
Post-Riley, many questions remain about how an officer may proceed with a search warrant for a cell phone. Many smartphones are equipped with password-protected capabilities, such as a numerical password, fingerprint reader, facial recognition, and other security features. May the officer force the phone’s owner to turn over the password? May the owner unlock the phone without giving up the password? May officer call him down to the station to use his thumbprint or face to unlock the phone? While there is no specific case on point, a series of cases, taken together, suggest that when the warrant requirement is properly fulfilled, officers may direct an individual to unlock the phone, but may not force an individual to reveal the password to law enforcement.
As technology advances and more information becomes password protected, the question of how law enforcement may access protected data becomes increasingly important. Riley makes it clear that information on a cell phone is not immune from all searches, but that a warrant is generally required before a search. What is unclear post-Riley is how law enforcement may proceed with a valid search warrant for a phone that is password protected.
The Supreme Court has not addressed the issue of whether a person must reveal a password to a law enforcement officer. A series of Circuit Court and District Court decisions may shed light on how the Supreme Court would rule in this area. The Fifth Circuit held that if a person voluntary provides the password to law enforcement, the officers may use it to search the phone. The District Court for the District of the Virgin Islands, St. Croix Division held that officers were incorrect in telling a phone owner that if he did not unlock the phone, “the phone would be seized, unlocked by a ‘lab,’ and examined whether or not [he] unlocked it.” Nonetheless, that search was ruled constitutional because the officers were operating in a good faith reliance on an exception to the warrant requirement. While there have been multiple cases where an individual refused to give over a password following an officer’s demand, these cases do not address whether it is permissible for the officer to demand the password in the first place.
Courts seem reluctant to address the question of whether an officer may require an individual to reveal a password so that an officer may search the phone. In both Thomas-Okeke and Poccia, officers demanded that the individual give over the password, rather than merely unlock the phone themselves. The courts decided each case on separate grounds and left the question of forcing an individual to give up a password untouched.
Many smartphones can also be unlocked by means other than typing in a password. Before the age of smartphones, the Supreme Court left open the possibility that detentions for the sole purpose of fingerprinting may be permissible under the Fourth Amendment. In Davis v. Mississippi, the Court mentioned that under specific circumstances, detentions for the purpose of fingerprinting may “be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense.”
Although information on a smartphone is highly sensitive and deserves heightened protections, if an officer has a valid search warrant for the phone specifically, that warrant should carry with it inherent ability to unlock the phone. Looking at the policy reasons behind Riley and the dicta in Davis help settle the question of whether an individual must turn over a phone’s password. While an officer may not require an individual to reveal the password, if the standard set out in Riley is to have any significance, a warrant for a cellphone should carry inherent authority to access the phone. This may be by the individual unlocking the phone for law enforcement, or, as Davis suggests, it may be permissible for law enforcement to use an individual’s fingerprints to unlock a phone.
To carry out a search warrant for a cellphone, law enforcement may ask the individual to unlock the phone or may ask for him to voluntarily give over the password. As the Fifth Circuit held in Venegas, voluntarily giving up a password is equivalent to consenting to the search. The main issue focuses on whether law enforcement may force an individual to reveal a password when he refuses to do so voluntarily.
The importance of privacy interests in cellular data was made clear in Riley. Since the Riley decision in 2014, the storage capacities and abilities of smartphones has increased. As more things become password-protected, privacy interests in one’s password becomes increasingly important. Many individuals use the same password across various accounts, including their cell phones, banking pins, or social media accounts. However, this should not mean that officers are not able to carry out the warrant or have to hack into the phone merely because it is locked. Just as law enforcement does not obtain the right to possess the keys to a house with a search warrant, officers do not gain the right to possess the password to a locked phone, but may nonetheless be given temporary access to the phone.
An individual should be required to unlock the phone if an officer has a valid search warrant. As Davis stated, detaining an individual to use his thumbprint may not violate the Fourth Amendment in certain circumstances. Although non-existent at the time of Davis, one of these narrowly defined circumstances could be using a fingerprint to unlock a phone to fulfill a legitimate search warrant. Not only would using a fingerprint in this circumstance be necessary to carry out a valid search warrant, it is even less of an intrusion than physically being fingerprinted because the individual has the choice of unlocking the phone for law enforcement through other means, whether it be voluntarily giving up the password or merely typing in the password himself.
While courts have not addressed how an officer may carry out a warrant for a cell phone, the Court’s reliance in Riley on the ability of a phone to be searched with a warrant suggests that Riley was meant to create a workable standard. This standard would be frustrated if officers could not access a locked phone, even with a warrant. Having a legitimate search warrant for a locked smartphone could be compared to having a valid search warrant for a locked home. Even though the Supreme Court has continuously granted the greatest protections to one’s privacy in his own home, the officer is not simply out of luck if the door is locked.
Turning over a password to law enforcement is an invasion of privacy that goes beyond a warrant to search the phone. If officers obtain a valid search warrant for an individual’s cell phone, that warrant should include the authority to direct the individual to unlock the phone. However, an officer may not force an individual to reveal the password. If an individual refuses to type in the password, officers may require him to use his thumbprint or facial recognition (if applicable) to unlock the phone.
 See, United States v. Miller, 425 U.S. 435, 443 (1976).
 573 U.S. 373 (2014).
 Riley v. California, 573 U.S. 373, 386, (2014). By using “generally” the Court left open the possibility that officers may search a phone without a warrant in exigent circumstances. Id. at 402. This Article will refer to instances where there are no exigent circumstances, and therefore a warrant is required before searching a phone.
 United States v. Venegas, 594 F. App’x 822, 826 (5th Cir. 2014).
 United States v. Thomas-Okeke, No. 2018-0008, 2019 U.S. Dist. LEXIS 92345, at *22 (D.V.I. June 3, 2019).
 Id. This case focused on whether or not the officers needed a warrant to search the phone. It still left open the question of whether or not the officers had the authority to direct the individual to unlock it.
 See, Gold v. Poccia, No. 17-104WES, 2018 U.S. Dist. LEXIS 161933, at *9 (D.R.I. June 29, 2018).
 394 U.S. 721, 727 (1969). Although mainly dicta, the Court focused on the lack of personal intrusion giving a fingerprint involves. Id.
 United States v. Venegas, 594 F. App’x 822, 827 (5th Cir. 2014).
 Riley v. California, 573 U.S. 373, 403 (2014). “Our 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.” Id.
 See, Silverman v. United States, 365 U.S. 505 (1961). “At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Id. at 511 (emphasis added); see also Florida v. Jardines, 569 U.S. 1 (2013). “But when it comes to the Fourth Amendment, the home is first among equals.” Id. at 6.