Cellphones regularly have posed perplexing issues to courts struggling to apply our constitutional rights to this ubiquitous and overwhelmingly important modern technology.
Fifth Amendment Protection of Cellphone Passwords Remains Murky As Supreme Court Declines to Weigh In
When law enforcement seeks to compel a subject to provide a passcode to allow them to rummage through a cellphone, courts have not spoken with a unified voice. Some, including New Jersey's highest court, have arrived at the dubious conclusion that requiring an individual to communicate cellphone passcodes to the government does not warrant Fifth Amendment protection. Commentators had hoped that the U.S. Supreme Court would reject that expansive view, however, the Supreme Court declined to wade in, seemingly guaranteeing that continued uncertainty on this critical issue will continue to bedevil criminal practitioners.
By
Robert J. Anello and Richard F. Albert
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