S.D.N.Y.: There’s a privacy interest in a cell phone passcode, but its disclosure here under a ruse does not lead to suppression

There is a privacy interest in one’s cell phone passode protected by the Fifth Amendment. Here, however, defendant’s disclosure of the passcode in responding to a CBP ruse after a flight from Mexico was not compulsion. United States v. Shvartsman, 2024 U.S. Dist. LEXIS 50597 (S.D.N.Y. Mar. 20, 2024), motion denied 2024 U.S. Dist. LEXIS 54265 (S.D.N.Y. Mar. 25, 2024):

This motion to suppress requires the Court to apply these well-established principles to a factual context that has divided state and federal courts alike over the past decade: a suspect’s disclosure of the passcode for her cellphone to government agents. Drawing on act-of-production precedents, several courts have applied the foregone conclusion doctrine and held that the government may compel a suspect to disclose the passcode to his cellphone without transgressing the Fifth Amendment. See United States v. Smith, 2023 U.S. Dist. LEXIS 221870, 2023 WL 8611259, at *3 (S.D.N.Y. Dec. 13, 2023); United States v. Cheng, 2022 U.S. Dist. LEXIS 6437, 2022 WL 112025, at *9 (S.D. Tex. Jan. 12, 2022); State v. Andrews, 243 N.J. 447, 234 A.3d 1254, 1274 (N.J. 2020); Commonwealth v. Jones, 481 Mass. 540, 117 N.E.3d 702, 718 (Mass. 2019); State v. Stahl, 206 So. 3d 124, 137 (Fla. Dist. Ct. App. 2016); see also People v. Sneed, __ N.E.3d __, 2023 IL 127968, ¶ 102 (Ill. 2023). In the view of those courts, the suspect’s verbal act of telling an agent the passcode for a cellphone is indistinguishable from her physical act of unlocking the cellphone. However, other courts have concluded that the Fifth Amendment forbids the government from forcing a suspect to utter the code to her phone. See United States v. Spencer, 2018 U.S. Dist. LEXIS 70649, 2018 WL 1964588, at *2 (N.D. Cal. Apr. 26, 2018); United States v. Sanchez, 334 F. Supp. 3d 1284, 1298-99 (N.D. Ga. 2018); Matter of Search Warrant Application for [Redacted Text], 279 F. Supp. 3d 800, 806 (N.D. Ill. 2017); SEC v. Huang, 2015 U.S. Dist. LEXIS 127853, 2015 WL 5611644, at *3 (E.D. Pa. Sept. 23, 2015); State v. Valdez, __ P.3d ___, 2023 UT 26, ¶ 73 (Utah 2023).

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Thus, precedential, practical, and purposive considerations alike demonstrate that the Government cannot justify Garelick’s disclosure of his phone passcode as a foregone conclusion. See Danaher, 2020 U.S. Dist. LEXIS 232546, 2020 WL 7264454, at *4; Spencer, 2018 U.S. Dist. LEXIS 70649, 2018 WL 1964588, at *1-2; Valdez, 2023 UT 26, ¶ 9; Davis, 220 A.3d at 550. Perhaps to some, the requirement that the Government find other means to access a suspect’s cellphone will appear inefficiently “based on form rather than substance.” Andrews, 234 A.3d at 1274. But the form protects a principle that is both profound and enduring: “our respect the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life.” Doe, 487 U.S. at 212 (quoting Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 55, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964)). The inviolability of the human personality and the private enclave inheres in each individual’s right to the privacy of his own mind. It does not protect against every Government request with respect to the movement of his body. See Muniz, 496 U.S. at 591 (recognizing the “distinction between ‘testimonial’ and ‘real or physical evidence’ for purposes of the privilege against self-incrimination”).

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In sum, the “totality of the circumstances” demonstrate that Garelick voluntarily disclosed his passcode to Officer Gonzalez. Kourani, 6 F.4th at 352 (quoting Haak, 884 F.3d at 409). Although Officer Gonzalez employed “a ruse” to lull Garelick into a false sense of security and disclose his phone passcode, United States v. Mitchell, 2013 U.S. Dist. LEXIS 166368, 2013 WL 6175849, at *8 (W.D.N.Y. Nov. 22, 2013), Garelick’s “will was [not] overborne” by that deception, Dickerson, 530 U.S. at 434 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)). The Fifth Amendment right against self-incrimination “only protects ‘compelled’ statements,” Rivera v. Samilo, 2018 U.S. Dist. LEXIS 59165, 2018 WL 1701935, at *12 (E.D.N.Y. Mar. 30, 2018), so the Government did not violate that right here.

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