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FBI Wants to Search My Phone – Can I Say No
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Your phone knows more about you than your spouse does. It knows where you sleep, who you talk to at 2 AM, what you search for when you think nobody’s watching, and what you deleted because you never wanted anyone to see it. The FBI agent standing in front of you knows all of this. That’s exactly why they want in.
Welcome to Spodek Law Group. We’re going to tell you something most lawyers won’t say directly: you can refuse. The legal answer to “Can I say no?” is yes. The practical answer is far more complicated. What happens after you say no determines whether that refusal was brilliant or catastrophic. And the distinction depends on factors you probably don’t understand yet.
Here’s what nobody explains until it’s too late. The FBI doesn’t actually need your cooperation to get into your phone. They have tools – expensive, sophisticated, constantly updated tools – that can bypass your password entirely. When they ask for your passcode, they’re not asking because they need it. They’re asking because it’s faster, cheaper, and creates a consent record that eliminates your ability to challenge the search later. The question isn’t whether they can search your phone. The question is whether you’re going to make it easy for them.
Riley v. California Changed Everything – Except It Didnt
In 2014, the Supreme Court decided Riley v. California. It was unanimous. Nine justices agreed. Chief Justice Roberts wrote that cell phones are different from anything else police encounter during an arrest. He wrote that phones contain “the privacies of life” and deserve special protection. He wrote that the answer to what police must do before searching a phone is “simple – get a warrant.”
Thats the law. Its been the law for over a decade now. And yet.
Heres the reality that makes Riley almost meaningless in practice. The consent exception swallows the warrant requirement whole. In Illinois, researchers tracked every traffic stop for four years. They found that 85% of white drivers and 88% of minority drivers consent to searches when police ask. Think about that. Nearly nine out of ten people say yes when asked. The warrant requirement only protects the ten percent who know to refuse.
This consent doctrine comes from a 1973 Supreme Court case called Schneckloth v. Bustamonte. That case was decided before smartphones existed. Before the internet existed. Before anyone could imagine that the thing in your pocket would contain more personal information then your filing cabinet, your diary, and your photo albums combined. But that ancient precedent is what lets police bypass Riley entirely.
So when the FBI asks to search your phone, there asking becuase most people say yes. There asking becuase consent is faster then a warrant. There asking becuase once you consent, you cant challange the search later even if they find something that destroys your life.
Todd Spodek has sat across from clients who consented to phone searches and watched there entire case collapse around that single decision. The text messages they forgot about. The photos they thought they deleted. The location data that put them exactly where they said they werent. All of it was handed over in the thirty seconds it took to say “sure, go ahead.”
What Your Phone Actually Reveals
Before we talk about refusing searches, you need to understand what there actualy looking for. This isnt just about finding evidence of a crime. Your phone is a complete record of your existence.
Location data. Your phone tracks were you go, how long you stay, and what route you take. It knows your home address becuase thats were you sleep. It knows your work address becuase thats were you spend eight hours a day. It knows your mistresses apartment, your therapists office, your AA meetings. Location data can place you at a crime scene – or prove you werent there. It can establish patterns that suggest guilt or innocence. Prosecutors love location data becuase juries understand maps.
Communication records. Not just what you said, but who you said it to, when, and how often. Prosecutors build conspiracy cases by mapping communication networks. You called this person, who texted that person, who emailed this third person. Suddenly your part of a web you didnt even know existed. And “deleted” messages arnt realy deleted. There sitting in your phones memory untill the space gets overwritten.
Photos and videos. Everything you’ve ever photographed or recorded. Including screenshots of other peoples messages. Including photos of documents. Including videos you made and forgot about. Including images you received and never asked for. The metadata on those photos includes when and were they were taken. A photo of a document can establish you knew about something, even if you deny it.
Apps and app data. What apps you’ve downloaded tells a story. A encrypted messaging app suggests you wanted privacy. A VPN suggests you wanted anonymity. Dating apps reveal relationships. Banking apps reveal finances. The apps you use – and the data within them – create a comprehensive profile of who you are and what you do.
This is why Chief Justice Roberts wrote that searching a phone is fundamentaly different from searching a wallet or an address book. A phone is “a window into a persons life.” And the FBI wants to look through that window.
The Password Problem – What Happens When You Refuse
William Montanez got pulled over in Tampa, Florida for a minor traffic violation and some marijuana. He didnt try to hide the pot. He was arrested for the marijuana plus some small bottles police beleived contained THC oil – a felony. Having a gun in the car while committing that felony added another charge.
Five days after he bonded out, a Hillsborough County Sheriffs deputy tracked him down with warrants and demanded his phone passcodes. Montanez refused. The prosecutors went to a judge. The judge held him in contempt of court and threw him back in jail.
He spent 44 days locked up. Forty-four days for not giving up his password.
Eventually the THC and gun charges were dropped. The contempt order got tossed. He pleaded guilty to a misdemeanor pot charge. And he says he regrets nothing becuase he saw refusing as taking a stand against the abuse of his rights.
But heres what you need to understand about contempt of court: theres no maximum sentence. A judge can hold you in contempt until you comply. People have spent years – YEARS – in jail for refusing to provide passwords or encryption keys. Your sitting in a cell not becuase your convicted of a crime, but becuase your refusing to help the government convict you of a crime. Its a legal paradox that the courts have never fully resolved.
The Fifth Amendment says you cant be compelled to testify against yourself. Most courts have ruled that providing a passcode is “testimonial” – it requires revealing something from your mind. But prosecutors have a workaround called the “foregone conclusion” doctrine. If they can prove they already know whats on your phone, compelling you to unlock it doesnt add any new testimonial evidence. The contents are a “foregone conclusion.”
Heres how that plays out in practice. The government seizes your phone. They file a motion to compel you to provide the passcode. You invoke the Fifth Amendment. They argue foregone conclusion – they already know from other evidence that your phone contains incriminating material. Maybe a co-defendant told them. Maybe they have records from your cell carrier. Maybe they extracted data from someone elses phone that references conversations on yours. If the judge agrees the government already knows whats there, you loose the Fifth Amendment protection. Unlock the phone or go to jail for contempt.
The Third Circuit upheld exactly this in United States v. Apple MacPro Computer. A man refused to provide encryption passwords. The court held him in contempt. He sat in jail while his appeals failed. Eventually, after years of litigation, he was released – but the principle was established. If the government can show they know whats on your device, you can be forced to unlock it.
So your rights depend on whether prosecutors can convince a judge they already know whats on your device. If they can, you unlock it or go to jail. If they cant, you might be protected. Its not a clear rule. Its a fact-specific argument that varies case by case. And by the time the courts resolve it, you may have already spent months in custody.
Your Fingerprint Is Not Your Password
Heres the paradox that should keep you up at night. The same phone. The same data. The same constitutional rights. But your fingerprint unlocks it without Fifth Amendment protection, while your passcode might be protected.
Courts have ruled – almost uniformly – that fingerprints and facial recognition are “non-testimonial.” There physical characteristics, like providing a blood sample or a handwriting exemplar. Your face dosent reveal whats in your mind. Your fingerprint dosent require you to communicate knowledge. So police can force your finger onto the sensor, and many courts say thats constitutionally acceptable.
The Ninth Circuit took this to its logical extreme in United States v. Payne. Police physically grabbed the defendants thumb and pressed it to his phone. The court ruled this wasnt protected by the Fifth Amendment becuase the defendant didnt make any “act of production” – the police did it to him. They used his body as a key.
But the D.C. Circuit went the other way in United States v. Brown. That court said compelling someone to unlock there phone with biometrics IS testimonial, becuase it communicates access and control over the device. Being ordered to unlock is like being ordered to verbally provide the password.
So which rule applies to you? It depends on where you are. If your in the Ninth Circuit, your fingerprint offers no protection. If your in the D.C. Circuit, you might have a case. The Supreme Court hasnt resolved the split.
This means your constitutional rights are literally determined by geography.
At Spodek Law Group, weve seen clients who used fingerprint unlock get there phones searched in seconds. Weve seen other clients with passcodes hold the line. The technology choice you made when you set up your phone – something you probly didnt think about for more then thirty seconds – now determines your legal exposure.
The Tools They Use When You Say No
Lets say you refuse everything. You dont consent. You dont provide your passcode. You dont let them use your fingerprint. You sit in silence and wait for your lawyer.
What happens next depends on how much money the agency is willing to spend.
Cellebrite and GrayKey are the two dominant mobile device forensic tools. GrayKey costs between $15,000 and $30,000 per unit. Its been purchased by agencies in all 50 states, across 30 countries worldwide. The FBI uses both extensively. And so do local police departments you’ve never heard of. At least 2,000 law enforcement agencies have these tools.
Heres what they can do. GrayKey brute-forces your passcode. It tries every possible combination untill it gets in. A four-digit PIN can be cracked quickly. A six-digit PIN takes longer. An alphanumeric password with special characters might take months or years. The choice you made about your password affects whether they get in before your trial or after your release.
Once there in – wheather you helped or not – Cellebrite can perform what they call a “physical extraction.” Thats a complete image of your phones memory. Every photo. Every text. Every app. Every location point. And every piece of “deleted” data that hasnt been overwritten yet.
They can analyze 181 Android apps and 148 iPhone apps. There artificial intelligence can automatically flag pictures of guns, drugs, screenshots, and child-related content. You dont even have to be the one looking at your own evidence. The software does it for them.
And theres something called HideUI that should terrify you. GrayKey can install a covert agent on your phone that records your passcode when you type it. So police seize your phone, cant get in, hand it back to you, you unlock it thinking you’ve won, and their software captures the code. Next time they seize it, there in.
This isnt science fiction. This is standard law enforcement technology in 2025.
The Border Exception – Where Rights Disappear
Everything we’ve discussed changes completly the moment you cross an international border.
Under the “border search exception” to the Fourth Amendment, Customs and Border Protection can search your items without a warrant, without probable cause, and without any individual suspicion at all. CBP’s own policy divides searches into “basic” and “advanced.” A basic search – where they scroll through your phone manually – requires nothing. No suspicion. No reason. They can just do it.
In FY 2025, CBP processed over 419 million travelers. They searched the electronic devices of 55,318 of them. Thats about 0.013% – roughly one in 7,600. But if your that one, none of your normal rights apply.
Wilmer Chavarria is a naturalized U.S. citizen. Last July, he returned from Nicaragua through Houston. CBP agents detained him and demanded access to his smartphone, tablet, and laptop. He was held for over four hours. He was only released after he finally agreed to let them search everything. Thats coercion dressed up as consent.
CBP can hold your device for five days without returning it. That period can be extended indefinitely in seven-day increments. People have reported there phones being held for weeks or months. Your entire digital life, sitting in a government facility, being examined by people you’ll never meet.
Some courts are pushing back. In 2019, the Ninth Circuit ruled that a warrant is required for border device searches looking for anything other than “digital contraband.” In 2023, a New York district court made history by requiring a warrant for all cell phone border searches absent exigent circumstances. But these rulings are not consistent. The government appeals them. The law remains uncertain.
What You Should Actually Do
If the FBI or any federal agent asks to search your phone, you have options. None of them are perfect. Each path has consequences. Understanding those consequences is the first step toward making a decision you can live with.
Option 1: Consent. This is the worst legal option and the most common practical choice. 85% of people do this. Once you consent, you’ve eliminated any ability to challange the search. Everything found is admissible. You cant later argue the search was unconstitutional. You cant claim your rights were violated. You said yes. Thats the end of the story. The thirty seconds of pressure you felt – the agents standing there, waiting, making you feel like refusal is suspicious – that pressure is designed to produce consent. Dont do this.
Option 2: Refuse and provide nothing. This preserves your rights but may result in your phone being seized. If they have a warrant, there taking it anyway. If they dont, your refusal cant be used against you in court. But they may get a warrant based on other evidence, and then they use GrayKey. If you used a weak four-digit PIN, your refusal bought you nothing except time and maybe suspicion. If you used a strong alphanumeric password with special characters, your refusal might mean they never get in – or at least dont get in untill after your trial.
Option 3: Invoke the Fifth Amendment explicitly. Depending on your circuit, your passcode may be protected as testimonial evidence. Your fingerprint probly isnt, unless your in the D.C. Circuit. If you use fingerprint or Face ID unlock, consider switching to a complex alphanumeric password before any federal interaction you can anticipate. If you cant anticipate the interaction – if the FBI shows up unannounced – you can still invoke the Fifth. Say clearly: “I am invoking my Fifth Amendment right against self-incrimination and declining to provide my passcode.” This creates a record that you asserted your rights.
Option 4: Call a lawyer immediatly. This is always the right answer. Before you say yes, before you say no, before you make any decision. Call someone who understands your specific situation and your specific jurisdiction. A good federal defense attorney can advise you based on the law in your circuit, the facts of your case, and the realistic consequences of each choice. What works in one situation might be disastrous in another.
Heres what you should NOT do: lie about your passcode, claim you forgot it when you didnt, or destroy data after a seizure. Any of these creates new federal charges – obstruction of justice, destruction of evidence, making false statements. You can remain silent. You can refuse. But you cannot actively deceive federal agents or destroy evidence once they’ve expressed interest in it.
Todd Spodek tells clients the same thing every time: the law is complicated, but your silence is simple. You have the right to say nothing. You have the right to refuse consent. You have the right to demand an attorney. Exercising these rights is not an admission of guilt. Its the exercise of constitutional protections that exist precisely for moments like this. The agents in front of you know your rights. They are hoping you dont.
At Spodek Law Group, weve represented clients who refused and won. Weve represented clients who consented and lost everything. Weve represented clients who thought they had nothing to hide and discovered their phones contained evidence they never knew existed. The one thing all of them have in common is this: they wish they had called before they made the decision.
Call Spodek Law Group at 212-300-5196 before you hand over your phone. Before you type in your passcode. Before you make a decision you cant take back.
Your phone contains your life. Dont give it away in a moment of panic.