Refusing Consent To Search Phone Can’t Be Used Against You At Trial

The Fifth Amendment of the United States Constitution guarantees you the right to remain silent. That means if you’re under arrest, nothing you say in response to police questioning can be used against you. Interestingly, your post-arrest silence can’t be used against you either. So if you say nothing after a question, the prosecutor can’t tell the jury you refused to answer.

But what happens when a person under arrest refuses to give his cellphone password and won’t consent to the search of his phone? Can those refusals be admitted into evidence? The Fourth District Court of Appeal in West Palm Beach, Florida answers that question in McRoberts v. State.

After arresting McRoberts for sex offenses, police ask him for his phone pin. They also seek permission to search his phone. Without a warrant, the police need permission to search. McRoberts refuses both requests.

McRoberts files a motion to keep this evidence from the jury, but the judge lets both refusals in. At trial, the prosecutor comments strongly on the refusals and the jury convicts McRoberts. On appeal, the Fourth District reverses his convictions for the following reasons.

The Fifth Amendment protects you from sharing your phone password. Similarly, the Fourth Amendment protects you from warrantless searches. Therefore, the prosecutor should not have introduced the refusals into evidence. To maintain the conviction, the State of Florida must prove beyond a reasonable doubt that the errors did not contribute to the verdict. Because the State fails to meet its burden, the Court reverses the convictions and remands for a new trial.

Read the McRoberts opinion here!

Talk to An Experienced Florida Criminal Defense Attorney!

Talk to Jared at Brown Legal PLLC about refusing to consent to cellphone searches! He’s an Ivy League educated former prosecutor with over 15 years experience! The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. He’s represented people as far away as Pensacola and as far south as Key West. Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

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