Court Rules that State May Compel Fingerprint, but Not Passcode, Access to Cell Phone

encryption2.pngA Virginia judge issued an important ruling regarding how the Fourth and Fifth Amendments intersect with the latest cell phone technology in Virginia v. Baust, No. CR14-1439, order (Va. Cir. Ct., Va. Beach, Oct. 28, 2014). Police and prosecutors often seek access to a defendant’s cell phone during an investigation. While the Supreme Court ruled last year in Riley v. California, 573 U.S. ___ (2014), that police must obtain a warrant to search the digital contents of a suspect’s cell phone, the question of whether a person may be compelled to unlock security encryption to give law enforcement access to his or her phone remains largely unresolved.

Smartphones, such as Apple’s iPhone, have become an indispensable tool for many people. Besides being a phone, people use them for text messaging, email, web browsing, personal finance, photographs and videos, games, and countless other functions. Our smartphones tend to accumulate a substantial amount of personal information, which makes them very attractive to law enforcement investigations.

The Supreme Court established the requirement for a warrant in Riley, but what happens if police have legal authority to access a smartphone, but they are unable to do so because of security encryption? Most phones allow users to set a passcode, usually a four-digit number, to unlock the phone. Some newer phones, such as the latest iPhone models, allow users to unlock the phone with their fingerprints. This question came before a Circuit Court judge in Virginia Beach, Virginia in Baust, when prosecutors moved to compel the defendant to provide the passcode to his phone, or use his fingerprint to allow access. The defendant argued that this would violate his Fifth Amendment right against self-incrimination.

The court granted the motion to compel the fingerprint, but it denied the motion to compel the passcode. It drew on a dissenting opinion by Justice Stevens in Doe v. United States, 487 U.S. 201 (1988), which distinguished between physical evidence connected to a person, like a fingerprint, and a person’s knowledge. Justice Stevens wrote that “intrusion upon the contents of the mind of the accused” would violate the Fifth Amendment. Id. at 219, n. 1 (J. Stevens, dissenting). The court in Baust cited cases holding that compelling a defendant to reveal a password is compelled testimony. The Eleventh Circuit Court of Appeals, for example, has ruled that the government could not compel a defendant to produce encryption codes for a computer hard drive. In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. 2012).

A fingerprint, unlike a passcode, does not require a person to “communicate knowledge,” according to the court. Baust, order at 4, citing United States v. Kirschner, 823 F.Supp.2d 665, 669 (E.D. Mich. 2010). The court noted another Supreme Court opinion from Justice Stevens that made a distinction between “telling an inquisitor the combination to a wall safe” and “being forced to surrender the key to a strongbox.” United States v. Hubbell, 530 U.S. 27, 43 (2000). Surrendering a key is not testimonial and therefore not covered by the Fifth Amendment. The Baust court applied this part of the analogy to the defendant’s fingerprint.

A person facing criminal charges needs the assistance of a knowledgeable and experienced criminal defense attorney. Michael J. Brown has spent more than 20 years fighting for the rights of west Texas defendants in state and federal criminal cases. Contact us today online or at (432) 687-5157 to schedule a confidential consultation to see how we can help you.

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Photo credit: Dustwin [Public domain, CC0 1.0], via Openclipart.