Pinellas County Florida Criminal Lawyer Blog

DOES DEFENDANT HAVE TO GIVE THE Department of Justice HER LAPTOP PASSWORD?

That is the question a federal court must answer when a Colorado woman goes on trial for bank fraud, wire fraud, and money laundering charges.

The woman, Ramona Fricosu, had her laptop seized after a federal investigation revealed that she and her husband allegedly tried to take title to foreclosed homes by fraud.

This case raises some fascinating issues about the Fifth Amendment, the Right to Privacy, and what actions by criminal defendants are considered "testimonial" and thus not subject to privacy. As you may or may not know to "plea the fifth" means to exercise your right against making statements that may incriminate yourself.
Apparently the woman's laptop has an encrypted code. The only way federal investigators can view the evidence is to have the woman enter this secret code on her laptop. But if she is forced to do this, is her right to privacy being violated? Is the passcode "testimonial"?
If she enters the password, she will incriminate herself.

Remember that under the Fifth Amendment, everyone has the right against self incrimination, but in today's modern world the records you keep could be considered a form of incrimination that requires Fifth Amendment protection. Don't second-guess yourself! When faced with a situation where you are being asked to turn over or reveal what could potentially be incriminating information, CALL US FIRST before you do anything that could jeopardize your freedom or liberty.

CAN THE POLICE SEARCH MY CELL PHONE BEFORE OR AFTER I'M ARRESTED?

    That answer is complicated - the US Supreme Court says yes, although most Federal and State courts say no.  

The only reason police have a right to search a person or a car after they've been arrested - WITHOUT A  SEARCH WARRANT- is for the preservation of evidence and officer safety (or if they impound your car which is an entirely different topic).  

For example, if you are arrested in your home, they do not have the right to search your entire house, unless they fear for their safety or they fear that evidence of the crime might be found in the house and if they don't search, it will possibly be destroyed. (guns and drugs are good examples of this).

In the case of a cell phone, there is clearly no officer safety issue, unless you've McGyver'ed your phone with a gun.  Also, the courts have ruled that a cell phone is not a container, which provides another exception to warrantless searches.

As to the issue of preservation of the evidence, once the police have confiscated your phone, and you no longer have access to it, there's no fear that any potential evidence, such as incriminating text messages, a phone log, or the address book - can be destroyed since the arrested person no longer has access to it.

There's a further issue of the expectation of privacy in a cell phone.  Prior appeallate court decisions have based their opinions on pagers - cell phones are much more sophisticated with emails, videos, pictures, etc.  Clearly people have all sorts of things on their cell phones that they intend to keep private, beyond things that are potentially illegal.

There's a recent case out of Brevard County, Florida, a Circuit Court case, where the judge writes a great narrative on the case history of searches.  (I found it on Florida Law Weekly Supp. and couldn't figure out how to get a public link for it)  It's called State v. Glasco and ultimately the court GRANTS the suppression of evidence found in Glasco's cell phone after his arrest. 

Circuit Judge John Harris writes:  "If courts continue to allow the unfettered exploration of this personal data, then courts are permitting the government to execute an unwarranted search of the cell phone user's life and habits.  This intruision cannot reasonable be justified by the rationales of officer safety and evidence preservation; therefore, a simple seizure of the cell phone must suffice until a WARRANT can be procured." 

I can only hope the judges in the Fifth, Sixth, and Thirteenth Circuits feel the same way. 

If your cell phone has been searched -CALL ME - you may have a good Motion to Suppress.

Something we're seeing more and more frequently in our practice are people who need to get rid of very old warrants in order to recieve their social security checks. 

If you have an outstanding warrant you cannot collect from social security - whether it's retirement income or disability. (See Social Security Administration Handbook)

This week, a 63 year old man turned himself in on a 20 year old warrant - a warrant from 1990 - for a VIOLATION OF PROBATION on a felony possession of marijauna charge. (St. Petersburg Times article)

The man left Florida years ago, moved to Tennessee and lived a normal life.  But when he wanted to collect his retirement income from Social Security,  they wouldn't allow it because of the outstanding warrant in Pasco County, Florida.

So without hiring a lawyer, the man turned himself in.  He now sits in Pasco County jail with a 0 bond. 

If you have an outstanding warrant - call us.  We might be able to prevent you from having to sit in jail for weeks or months pending the outcome of your case.  In some cases, depending upon the reason for the warrant - we might be able to prevent you from coming to Florida at all.