On behalf of Rosenblum Schwartz & Fry posted in Sex Crimes on Thursday, January 24, 2019.
Here’s a hypothetical we pose for readers that we suspect many of them will challenge on the grounds of skewed logic.
The cops have probable cause to search a home pursuant to a criminal investigation. They demand that targeted criminal suspects open their smartphones for government scrutiny by unlocking them with personal passcodes. A court rules that impermissible because a passcode or other such information that must be “willingly and verbally supplied” is testimonial in nature. A criminal suspect needn’t divulge it, given the seminal protection against self-incrimination that is provided under the Constitution’s 5th Amendment.
Now, on to hypothetical part two: The same situation as above applies, except that this time the police seek phone access via suspects’ so-called “biometric” features (think a fingerprint or facial recognition). The court has no problem with that, deeming such features non-testimonial and outside the scope of constitutional protection. The phones are opened, incriminating evidence is found, and their owners are convicted on criminal charges.
A recent national article addressing evolving technology and government searches queries whether there should be any distinction at all between a passcode, face or finger under such a scenario. After all, “any of the three can be used to unlock a device and expose a user’s private life.”
One lower-rung federal court recently took up that argument and issued a ruling that the above Forbes piece terms “a potentially landmark decision.”
The court parted ways with other tribunals that have failed to grant no-self-incrimination rights in biometrics-linked search cases. The judge found the password/biometrics distinction flatly illogical, especially in an era where “technology is outpacing the law.” She ruled that things like facial recognition and fingerprints must be accorded the same protections granted passcodes and other evidence deemed as testimonial.
It remains unclear presently whether the ruling will be appealed. If it is, we will timely pass along to our readers in Missouri and elsewhere any key details that emerge.