Suspect Must Unlock Phone with Fingerprint, Judge Rules

[Marshall Honorof]

Virginia police can't force suspects to unlock phones with a password, a judge said, but making them do so with a fingerprint is legal.

Suspect Must Unlock Phone with Fingerprint, Judge Rules : Read more

 

[Neiihn]

This is actually interesting given SCOTUS ruled that except for exigent circumstances you need a court order to search a cellphone. So while they can forcibly compel you to unlock the device with a fingerprint would that not make any evidence they found inadmissible anyways if they did not obtain a warrant to search the device to start with?

 

[anthony8989]

Obtaining a warrant to search the device still does not compel the defendant to legally incriminate him/her self by offering the pass code to access the device. So the police would have to - in addition to the electronic search warrant - also have to forensically hack into the device. Which can be especially difficult on an iPhone.

The issue is the 5th amendment right to not incriminate one's self. No warrant can force you to incriminate yourself.

 

[ammaross]

The issue is the 5th amendment right to not incriminate one's self. No warrant can force you to incriminate yourself.

Your fingerprints are fairly "in plain view" anyway, so quite accessible. Having been arrested, the defendant would already have been compelled to give up fingerprints. Sure, your prints may unlock a phone which could be incriminating, and is thus a 5th Amendment concern, however, if you kept photos in a locked chest and kept the key on a necklace, would it be against your rights to use it to unlock the chest when conducting a lawful (warranted) search? If you think that would be in violation, what about using a photograph of that plainly-visible key to create a copy and thus unlock the chest? Divulging a password could border on self-incrimination (giving self-witness that you truly had access to the passworded resource in question), and can thus be more clearly protected by the 5th amendment.

 

[anthony8989]

You're misunderstanding what I said. I'm not saying requesting finger prints violates his 5th amendment rights. I'm saying (hypothetically) forcing him to use a pin code password to unlock his phone is a violation - according to US law and precedents set by the judges in courts of law - because he is engaging in an act of self incrimination. But since finger print acquisition is a standard practice in the act of arrest, finger print access to the phone is exempt from the protections of the 5th amendment.

 

[sandysfaves]

It seems to me that the fingerprint in this type of situation is a passcode so I don't understand why it isn't protected. Fingerprinting itself is just mainly intended to identify someone. Seems to me that fingerprinting and DNA are mainly used to try and match up evidence that is already present such as blood, hair, etc present at the scene of a crime, not evidence that may or may not exist so forcing him to unlock the phone could essentially be self incriminating. I don't know, it boggles my little pea brain and I have a hard time understanding some of the finer points of law anyway I guess.

 

[anthony8989]

I believe the reasoning is that the finger print information is in police and prosecution possession at the time of trial and therefore the data can be used to unlock the phone without violating his rights to not self-incriminate. A hypothetical pin code is never in police or prosecution possession and is only in the possession of the defendant who is attempting to defend themselves from charges.

 

[LordConrad]

I've been warning people of this since day one. Fingerprints and DNA can be subpoenaed, knowledge (such as passwords) are protected by the Fifth Amendment. While some courts may try to force you to give up a password, such actions would never hold up under appeal.

 

[Spanky Deluxe]

TouchID on the iPhone only works if the device has been used in the last 48 hours, hasn't been restarted since last entry or three failed attempts at fingerprint scanning haven't occurred. The chances of this ever actually being used in a case are next to none due to this.

 

[anastasios912]

Time to subpoena the Mythbusters crew I guess (that one episode where they dupe the fingerprint scanners...)

 

[f-14]

ammaross in america, if you build a government proof anything, by law even with a warrant they can not legally compel you do let them in or access anything. the warrant just removes your legal right to refuse entry with out you killing them in the door way.
the judge is wrong and there is no checks and balances on the judges, police or court system to deal with immediate abuses except the laws on the books concerning false arrest, conspiracy, sedition, and treason laws which allow any one to forcibly stop government workers of any position in some cases with deadly forces if required. it's been ruled constitutional by a great many supreme court cases, not very recently since party line appointed judges have been installed into power however.
corrupt judges can only be removed by a superior court panel and only in a review of previous actions. the wheels of justice are slow. that's why we have the court of appeals...incase you get stuck with a corrupt or dumb judge.
a smart justice official would have already unlocked this phone using the booking print on file of an arrested suspect, if the suspect was never arrested tho... the court is SOL.

 

[MarkW]

I see this as the Judge attempting to force this man to testify against himself. Everything in his phone is his. He did it. He saved it. Its him. Just as much as his brain is his. So if we cannot force him to testify against himself, then he should not be forced to unlock his phone so that can be used against him either.

 

[cats_Paw]

This is a hard one. But to be fair every device that is not protected by self created software is rather easy to break into.

 

[Christopher1]

The issue is the 5th amendment right to not incriminate one's self. No warrant can force you to incriminate yourself.

Your fingerprints are fairly "in plain view" anyway, so quite accessible. Having been arrested, the defendant would already have been compelled to give up fingerprints. Sure, your prints may unlock a phone which could be incriminating, and is thus a 5th Amendment concern, however, if you kept photos in a locked chest and kept the key on a necklace, would it be against your rights to use it to unlock the chest when conducting a lawful (warranted) search? If you think that would be in violation, what about using a photograph of that plainly-visible key to create a copy and thus unlock the chest? Divulging a password could border on self-incrimination (giving self-witness that you truly had access to the passworded resource in question), and can thus be more clearly protected by the 5th amendment.

With all due respect, it is more expecting you to hand over the key to a coded document, when the key to the coded document is only in your head or in a locked bank box in the Cayman's.
The Supreme Court has already ruled WAY back in the 1920's that you did not have to hand over the keys to coded documents, that goes against your Fifth Amendment rights.
Now, they can try your fingerprints on your phone, that is permissible if they have a proper warrant for the data on your phone. But you should not be required to tell them "Oh yeah, my right index finger unlocks my phone!" or what series of fingerprints (yes, some people are working on a series of fingerprints to unlock your phone for anything but regular calls) will unlock your phone.

 

[Don Reid]

This is another case of the courts reinterpreting the Constitution. Self-incrimination means self-incrimination. The law cannot make you do anything to incriminate yourself. What is being attempted here is the police looking for a way to circumvent the law because there 'may' be some videos on this guy's phone. They have no evidence to present. There may also be text messages and phone records on the phone, but I am sure they wouldn't look at those. If they were to find something on his phone, it would be no different than 'extracting' a confession.

The guy may be a scum-bag, but the judge and police aren't much better. This is another reason not to go to Virginia.

 

[HollywoodMozart]

And the door to your house