During a search, law enforcement cannot force an individual to divulge their smart phone passcode, but the use of biometric features to unlock a phone is another story. However, in a potentially landmark decision, a California judge recently ruled that police cannot force individuals to unlock their mobile phones with face or fingerprint recognition – a ruling that may have ripple effects across the country.
Many may not know, but giving up a smartphone passcode is considered testimonial and therefore granted Fifth Amendment protection. However, the use of body parts to open phones is widely seen as fair game. By providing law enforcement a way into possibly every aspect of a modern person’s life, an untold number of people might be vulnerable to prosecution depending on what they find.
However, in the case out of Oakland, California, feds were recently denied a search warrant requesting to open any phone at the location not only because the search was too broad – not limited to a particular person or device – but also because the judge found that “if a person cannot be compelled to provide a passcode to open a phone, the same goes for fingers, face, irises or other biometric features”. The judge added that “the government does not have the right to force suspects to incriminate themselves by unlocking phones with biometric features” and therefore the government would have to find other ways to access data without trampling on the Fifth Amendment.
Although the ruling may be overturned, it will likely not be the last time that the practice of forcing individuals to use biometrics to open their phones will be raised. With technology outpacing law, privacy concerns are front and center and more challenges are inevitable. However, for the time being, those concerned about government overreach into their personal lives via smartphone appendages are encouraged to stick with strong passcodes they will not be compelled to give up.
If you believe your rights under the U.S. Constitution were violated by a warrantless search or you have been subject to an illegal search and seizure resulting in an arrest, contact the Waukesha Criminal Defense Law Offices of Andrew C. Ladd LLC for help today at 262-542-3900.