Cell Phone Passcode Refusal Cannot Be Used to Imply Guilt, Major Florida Court Rules

December 4, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 4th District Court of Appeal reversed a defendant’s conviction because prosecutors improperly introduced evidence that he initially refused to give law enforcement his cell phone passcode. 

In Florida, someone may face charges of traveling to meet a minor (Fla. Stat. 847.0135(4)), solicitation of a minor (Fla. Stat. 847.0135(3)), and unlawful use of a two-way communications device (Fla. Stat. 934.215). Occasionally, these allegations stem from law enforcement sting operations, during which officers pose as minors online. For more on this, click here.

This “unholy trinity” of charges is extremely serious. In Florida, traveling to meet a minor is a second-degree felony (up to 15 years in prison and a $5,000 fine). Solicitation of a minor and unlawful use of a two-way communications device are third-degree felonies (up to 5 years in prison and a $5,000 fine).

Note: In some cases, solicitation and unlawful use charges may be dismissed before trial on the grounds that bringing these violates the defendant’s Fifth Amendment protection against double jeopardy. For more information on this key legal issue, click here.

When someone is taken into custody after being accused of solicitation of a minor or traveling to meet a minor (or both), one of the first things law enforcement may do is seize the suspect’s cell phone (or attempt to). Police may ask a suspect if they consent to have their phone searched. For officers to access the device, they may request the suspect provide their passcode.

Though police may pursue a warrant for a cell phone once they seize it, it is within your rights under the Fourth Amendment to refuse consent unless they obtain a warrant. Even if someone gives consent for law enforcement to access their phone, they may limit the scope of the search (e.g. tell them they can only access particular apps). Florida v. Jimeno, 500 U.S. 248 (1991)

Following an arrest in Florida (for offenses such as traveling to meet a minor, possession of child pornography, etc.) a suspect may initially refuse to allow police to perform a consensual search of their device. Again, this is well within their rights. But subsequently, one of the following may occur:

• The suspect changes their mind and allows the police to conduct a full search of the device with their consent (and without a warrant)
• The suspect partially changes their mind and allows the police to conduct a limited search of the device
• Law enforcement obtains a warrant and is permitted to perform a complete search

Sometimes, the State may attempt to introduce evidence from a defendant’s cell phone at trial. If the defendant initially refused to allow police to perform a search of the device (did not consent), prosecutors have occasionally elicited testimony from law enforcement officers discussing the fact that the defendant initially did not want them to search the phone.

This is done for the purpose of illustrating “consciousness of guilt” – essentially, to get the jury to infer that the defendant did not want police to search the device because they were scared of them discovering what was on it. But can the State legally use a defendant’s initial refusal to let officers search their device against them at trial?

A major Florida court recently held that the answer to that question is – NO. Let’s take a look at the 4th District Court of Appeal’s ruling in McRoberts v. State, 333 So. 3d 240 (Fla. 4th DCA 2022) and what it means for this key legal issue in Florida.

KEY CASE: McRoberts v. State, 333 So. 3d 240 (Fla. 4th DCA 2022)

In McRoberts, the defendant (McRoberts) was charged with and convicted of traveling to meet a minor after he was ensnared in a law enforcement sting operation. 

When police initially took McRoberts into custody, they read him his Miranda rights. He waived his rights and made a statement denying that he had ever engaged in sexual conversations with a minor. Law enforcement officers then asked if he would consent to provide the passcode to his cell phone so they could conduct a full warrantless search of it.

McRoberts refused, citing confidential work product on the device. Shortly thereafter, however, McRoberts agreed to allow the officers to unlock the phone for the sole purpose of them taking screenshots of the alleged messages he exchanged with the fictional 13-year-old minor (actually an undercover detective).

At trial, the State called two officers to testify as to the search of the cell phone, which recovered direct evidence that McRoberts had been in fact texting the fictional minor. The officers testified that McRoberts initially refused to consent to the phone search. The State also introduced a video of the interrogation of McRoberts, which showed him initially refusing consent.

In closing arguments, the State used McRoberts’s initial refusal to provide the phone’s passcode against him (“[Appellant] knows we did not get into his phone because of the passcode and so now he can craft a defense where he’s the victim…”). McRoberts was found guilty.

McRoberts appealed to the 4th DCA (Miami area), arguing that his Fifth Amendment privilege against self-incrimination had been violated by the fact that evidence of his refusal to consent to the phone search was introduced. McRoberts asserted that it was lawful for him to refuse the search (Fourth Amendment) and that the State impermissibly implied his guilt for doing so.

The 4th DCA agreed, reversing McRoberts’s conviction on these grounds and remanding the matter to the lower court for a new trial. The 4th DCA noted:

“Under the Fourth Amendment of the United States Constitution, a defendant has a constitutional right to refuse a request for a warrantless search. See Amend. IV, U.S. Const. Additionally, under the Fifth Amendment of the United States Constitution, ‘[n]o person … shall be compelled in any criminal case to be a witness against himself ….’ Amend. V, U.S. Const. This includes ‘being forced to produce a password [which] is testimonial and can violate the Fifth Amendment privilege against compelled self-incrimination.’ G.A.Q.L. v. State, 257 So. 3d 1058, 1061–62 (Fla. 4th DCA 2018).”

The 4th DCA noted that the State cannot present “evidence or argument” relating to someone’s decision to exercise their rights (e.g. remain silent or refuse a search), because doing so can raise “an inference of guilt” that violates the right to a fair trial:

“It is impermissible for the State to present evidence or argument that references a defendant’s invocation of either of these rights because such comments can prejudice the defendant by raising an inference of guilt. … As in Kearney, here the State strongly suggested that Appellant impeded the government’s investigation and prosecution. Kearney, 846 So. 2d at 620–21. 

“For instance, in closing argument, the State engaged in a discussion as to why it did not forcibly obtain the evidence, during which it stated, ‘Believe me, [the officers] wanted to,’ but ‘the Fourth Amendment protects all of our personal and privacy rights and that’s something we take very seriously.’ The implication, of course, is that Appellant’s refusal to provide the evidence and the Constitution itself hampered the State’s case.”

Finding that the State could not prove beyond a reasonable doubt that the error was “harmless” (did not influence the eventual verdict), the 4th DCA found that the trial judge’s admission of the evidence was improper – and that a new trial was required:

“The trial court erred in denying Appellant’s motion in limine and allowing the State to present evidence and argument referencing Appellant’s refusal to provide his cellphone PIN and his refusal to consent to a warrantless search of his entire cellphone. The State has not demonstrated beyond a reasonable doubt that the error did not contribute to the guilty verdict, thus it cannot be said that the error was harmless.  Accordingly, Appellant’s conviction for traveling to meet a minor to commit an unlawful sex act is reversed and the case is remanded for a new trial.” 

In sum, McRoberts v. State, 333 So. 3d 240 (Fla. 4th DCA 2022) is a significant development in Florida’s corpus of case law surrounding cellphone search refusals, particularly in traveling to meet a minor cases. 

The 4th DCA held that the State could not use McRoberts’s initial refusal to provide his passcode against him at trial, as this violated his privilege against self-incrimination. The court reiterated that a defendant’s lawful exercise of a constitutional right (e.g. remaining silent post-Miranda, refusing a warrantless search) cannot be used at trial to imply their guilt.

Even if law enforcement later obtains incriminating materials from a device, the fact that the defendant refused the search at first is not admissible at trial. This is critical for Florida defense attorneys and defendants to understand in these cases.

If someone is arrested and formally charged in Florida with traveling to meet a minor and seeks to raise an entrapment defense or exclude evidence, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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