Should Americans face jail time for refusing to surrender their passwords to police, or is the request alone a violation of their Fifth Amendment right against self-incrimination? According to one judge in Florida, the former is the correct answer.
Christopher Wheeler, 41, was sentenced to 180 days in jail by Broward Circuit Court Judge Michael Rothschild for failing to reveal the correct passcode to his iPhone.
Wheeler was initially arrested on charges of child abuse in March, after he was accused of hitting and scratching his young daughter. The catch is that police are claiming the evidence of this abuse—multiple photos of repeated injuries to the child—can only be found on Wheeler’s locked iPhone.
After he was held in criminal contempt of court by Judge Rothschild in early May, Wheeler did provide a passcode to the iPhone, it just wasn’t the right one.
“I swear, under oath, I’ve given them the password,” Wheeler insisted when he appeared in court on Tuesday.
Wheeler’s case was determined on the basis of an appeals court decision, which separated the phone’s passcode from incriminating photos or videos located on the device.
In December 2016, the Florida Court of Appeal’s Second District ruled that a passcode is not related to any criminal evidence found on the phone:
“Providing the passcode does not ‘betray any knowledge [Stahl] may have about the circumstances of the offenses’ for which he is charged. Thus, ‘compelling a suspect to make a nonfactual statement that facilitates the production of evidence’ for which the state has otherwise obtained a warrant based upon evidence independent of the accused’s statements linking the accused to the crime does not offend the privilege.”
As Wheeler was sentenced to 180 days in jail for failing to provide the passcode to his iPhone, another Florida man was facing similar demands. Wesley Victor appeared in court on Tuesday as a suspect in an extortion case that surrounded a sex-tape scandal involving Miami social-media celebrity YesJulz.
In contrast, Miami-Dade Circuit Judge Charles Johnson chose not to hold Victor in contempt of court, ruling that he should not be expected to remember his phone’s passcode more than 10 months after his initial arrest.
Critics of the appeals court decision argue that such a requirement violates the individual’s Fifth Amendment right against self-incrimination.
The Fifth Amendment to the U.S. Constitution states:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Florida Supreme Court has yet to address the issue of whether police should have the right to demand a suspect’s passwords.
In Wheeler’s case, he will eventually have an opportunity to post bond, following an appeal. However, Judge Rothschild made it clear that there was one “Get Out of Jail Free Card” which would result in his temporary release: the correct passcode to his iPhone.