Giving Law Enforcement the Finger – Does the 5th Amendment Apply?

In the password protected world, having the authority to search is not enough if the cell phone, tablet or computer is secured by a password.  And many now, in lieu of typing in a password to unlock their phones and tablets, use biometric protections like fingerprints.  Can officers ask courts to compel a suspect to provide his fingerprint to unlock their devices? 

We have come a long way from when Starsky & Hutch (the TV show, not the movie) needed to pull over their Ford Gran Torino to make a call from a phone booth.  Cellphones have developed quickly over the last decade since the first iPhone release on June 29, 2007.  Cellphones are no longer just for making phone calls.  People now store vast amounts of information from bank and medical records to photo files, and with that, the Court’s have had to determine what a reasonable expectation of privacy applies to the information stored on cellphones.  In addition to privacy issues, courts must tackle whether ordering a suspect to disclose his password or provide a fingerprint to law enforcement so they can conduct a lawful search of his devices violates the suspect’s right against self-incrimination. The Fifth Amendment provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself[.]” Amend. V, U.S. Const. But this privilege against self-incrimination only applies to protection from compelled testimonial communications.  Doe v. United States, 487 U.S. 201, 207, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988).  “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” Doe, 487 U.S. at 210, 108 S.Ct. 2341 (footnote omitted).

The U.S. Supreme Court has not directly addressed this issue, but many jurisdictions across the country have applied the Court’s analysis in Doe v. United States, 487 U.S. 201(1988) to passwords and fingerprints.  In Doe, the U.S. Supreme Court held that compelling the Defendant to sign a consent directive allowing records to be released to law enforcement did not violate his 5^th Amendment rights because it was not testimonial in nature.  The communication itself was not incriminating and had no testimonial value. The Court found it akin to producing handwriting samples or voice samples, which do not relay any actual disclosure of knowledge.

Jurisdictions split on their application of Doe to disclosure of passwords.  In State v. Stahl, the Florida court held that “compelling a suspect to make a nonfactual statement that facilitates the production of evidence” for which the State has otherwise obtained a warrant based upon evidence independent of the accused’s statements linking the accused to the crime does not offend the privilege. State v. Stahl, 206 So. 3d 124, 134 (Fla. Dist. Ct. App. 2016) Whereas, in Michigan, the court held that “the government is not seeking documents or objects—it is seeking testimony from the Defendant, requiring him to divulge through his mental processes his password—that will be used to incriminate him.” United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010).

Compelling a suspect to provide his fingerprint to unlock a cellphone seems to be landing more akin to the voice and handwriting exemplars, deemed not a violation of the 5^th Amendment.  In Stahl, the court was not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number combinations than to individuals who use their fingerprint as the passcode. Compelling an individual to place his finger on the iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar. Stahl at 135.  Similarly, the Minnesota Supreme Court analyzed this issue saying, “[u]nlike the acts of standing in a lineup or providing a blood, voice, or handwriting sample, providing a fingerprint to unlock a cellphone both exhibits the body (the fingerprint) and produces documents (the contents of the cellphone). Providing a fingerprint gives the government access to the phone’s contents that it did not already have, and the act of unlocking the cellphone communicates some degree of possession, control, and authentication of the cellphone’s contents. But producing a fingerprint to unlock a phone, unlike the act of producing documents, is a display of the physical characteristics of the body, not of the mind, to the police.” State v. Diamond, 905 N.W.2d 870, 875 (Minn.), cert. denied, 138 S. Ct. 2003, 201 L. Ed. 2d 261 (2018).  In Diamond, the court ultimately held that providing a fingerprint to police to unlock the cellphone was not testimonial communication protected by the 5^th Amendment.

What does this mean for you?  So, the courts are still split as it relates to compelling passwords.  The courts appear to be leaning that the ordering of a suspect to provide his fingerprint to law enforcement to unlock a phone does not implicate his 5^th Amendment rights.  What is consistent about all the cases is that officers used search warrants to compel a suspect to give up his password or biometrics.  Hint, hint!