Cell Phone Fifth Amendment Rights By State
Cell Phone Fifth Amendment Rights
Cell phones are ubiquitous, but states do not agree on how Fifth Amendment rights apply to them. The Supreme Court has not clarified the issue yet, so this page serves to break down how different states treat Fifth Amendment rights as they relate to cell phones.
Some states have not yet had cases that clarify how the state will treat cell phones when it comes to the fifth amendment. For those in these states, they can look at New Jersey [1] and [1] to help understand the range of interpretations available.
Foregone Conclusion States
In many states, the state can require you to give up a passcode if the consequences of giving up a passcode are considered a "foregone conclusion". Which varies by state. Most of these courts require that two things are established before a passcode can be required: ownership and existence. Some courts require proof that a file exists and is owned by an individual, that is to say, the government must be able to show it knows the "location, existence, and authenticity of the purported evidence with reasonable particularity”[1]. While others simply require proof that the individual is capable of unlocking the device (this often comes up as proving ownership of the device).[1][2][3]
Location/Path/File Required States/Territories
- Puerto Rico[4]
Ownership Required States/Territories
- New Jersey[2]
- Massachusetts[5]
- Vermont[6] (see In re Boucher)
Ownership Required Circuits
Scratch Area [7]
https://law.justia.com/cases/federal/appellate-courts/ca3/17-3205/17-3205-2020-02-06.html
References
- ↑ 1.0 1.1 1.2 1.3 TODO add link Cite error: Invalid
<ref>tag; name ":0" defined multiple times with different content - ↑ 2.0 2.1 Cite web |last=hlr |date=2021-04-12 |title=State v. Andrews |url=https://harvardlawreview.org/print/vol134/state-v-andrews/ |access-date=2025-04-29 |website=Harvard Law Review |language=en-US Cite error: Invalid
<ref>tag; name ":1" defined multiple times with different content - ↑ Cite web |last=Lee |first=Timothy B. |date=2020-08-11 |title=NJ Supreme Court: No 5th Amendment right not to unlock your phone |url=https://arstechnica.com/tech-policy/2020/08/nj-supreme-court-no-5th-amendment-right-not-to-unlock-your-phone/ |access-date=2025-04-29 |website=Ars Technica |language=en
- ↑ "United States of America v. Reynoso, No. 3:2025mc00068 - Document 20 (D.P.R. 2025)". Justia Law. Retrieved 2025-04-29.
- ↑ Farivar, Cyrus (2014-06-26). "Massachusetts high court orders suspect to decrypt his computers". Ars Technica. Retrieved 2025-04-29.
- ↑ Sanchez, Julian (2009-03-02). "Court: self-incrimination privilege won't protect password". Ars Technica. Retrieved 2025-04-29.
- ↑ 7.0 7.1 Cite journal |last=Watson |first=Kirstyn |date=2022-01-01 |title=Under Digital Lock and Key: Compelled Decryption and the Fifth Amendment |url=https://elibrary.law.psu.edu/pslr/vol126/iss2/7/ |journal=Penn State Law Review |volume=126 |issue=2
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