My understanding is that cops can’t make you enter a passcode to unlock a phone, but can force you to use facial recognition or fingerprint unlocks.
Suppose my phone doesn’t recognize my face unless I have my glasses on. I’m not wearing them right now; I don’t need to and don’t want to. Can police force me to put my glasses on? Suppose I’m wearing gloves and it’s ten below. Can they make me take off my gloves to unlock my phone?
The logic as I know it of the legal principles involved make me feel like these are just on the edge, and I wanted to clarify my understanding.
Frankly, although the US Court of Appeals for the 9th Circuit upheld the decision based upon the rationale “that the compelled use of Payne’s thumb to unlock his phone (which he had already identified for the officers) required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking,” this is both legally and logically nonsense (notwithstanding that a blood draw generally requires consent or a clear statement of probable cause and exigent circumstances). The point of securing the phone via some biometric method is to prevent unauthorized and unwarranted access to the device and the information stored upon it, and forcing someone’s thumbprint on the reader to access the phone without consent or a court-issued search warrant is such a patently obvious violation of 4th Amendment protections (and not anything like taking fingerprints, which doesn’t activate or release anything) that it boggles the mind how a three judge panel could have come to such a conclusion. If the suspect had secured physical photos in a portable safe with a biometric lock and forced the suspect to open the container, would the court find that the officers had not conducted an illegal search by compelling the suspect to open the safe?
However, given that decision by the 9th, then yes, it would seem to be permissible for officers to force a suspect to use face recognition to provide access to a phone or other device, even if it means putting on or taking off accessories such as glasses or gloves similar to what might be done during a booking procedure involving fingerprinting and photographing.
The police already had the right to search any of the guy’s property, with or without cause, as condition of his parole. The real only question is whether use of the biometrics represented a violation of his privilege against self-incrimination. And, fairly obviously, it wasn’t. He was also obligated to give up any lock codes, which under normal circumstances would violate the right to self-incrimination, except that again this was a condition of his parole.
They’d certainly have the right to take a house/car/safe key off his person, for instance. Biometrics hardly seems much different.
AIUI, IANAL -The logic of requiring a warrant to search a phone (or consent) was that modern phones are akin to a home - they contain so much that may or may not be directly relevant to the probable cause for the search, that rooting through a phone is like allowing the police to search everything in your house, whether relevant or not. So it’s not about whether they can use your thumb to unlock, it’s whether they have the right and need to search your phone at all.
Automobiles are an exception to this, can be searched with probably cause, because unlike a house they can drive off. If the police believe there is evidence in the house, they can watch it from outside until they obtain a warrant.
Police do not need to search your phone immediately, because they already arrested you on probable cause and took your phone, they can wait for a judge. If they didn’t have probable cause without the phone contents, what right do they have to take the phone? If they need your thumbprint, the phone evidence was not “in plain sight”.
But the logic of unlocking with a thumbprint or face as opposed to demanding a passcode is exactly that - you can’t be forced to testify, and telling the police something is testifying. You can “not remember” your password, you can’t not remember your thumbprint or face, absent a horrible accident.
And that Trumps (sorry) any protection he would otherwise have.
A similar case I recall reading about was some fellow coming across the border. Customs saw some inppropriate material on his laptop when he opened it, but then he closed it and wouldn’t give the password. They then got a court order demanding he open it. The logic was this - the order was to show what was on the laptop, not to tell his password. Since customs had seen the material, it was a subpoena similar to being ordered to produce some document already known to be in his possession.(i.e. produce your passport).
But, if you’re being pulled over, power off your iphone immediately. Whenever you turn your phone back on, it will default back to password mode. Just deny that you have facial recognition set up.
Unless you’re on parole and always subject to search and questioning, because You Are a Criminal.( not you personally, MW)
Ones that are apt to do other illegal activity.
What the crap to do care or have to hide?
I having guiding principal: Don’t do crime.
Nothing to hide, here.
OTOH, if I was predisposed to do crimes, I damn sure wouldn’t put it on something so easily searchable, as a phone.
Won’t work if they hold it up to your face. (Classic scene in Blade Runner 2049 where after beating the police officer to death, the perp holds her head up to use her face to unlock her police computer and login…) I’ve seen a similar stunt in some police shows where they hold the perp’s phone up to his face…
You don’t need to power it off, you can just turn off the biometric validation quickly by pressing a volume button and the side button for 2 seconds. That’s for the iPhone, an Android probably has something similar.
That way you can still use the camera to record the stop if you feel it’s advisable.
Don’t mean to hijack the thread, but I think this is related enough. As a variation, what about the legality of, say, someone is killed and has a phone with fingerprint or face recognition, and the police or someone acting on their behalf uses the dead person’s finger/face to unlock their phone to find out who they may have been communicating with prior to being killed?
Sounds Hollywoodish, but I’ve seen it done IRL and wondered about it.
Powering off your iPhone is more secure than holding/mashing the side button because while the latter does force a passcode entry, the encryption keys are still loaded in memory. At a traffic stop it doesn’t make much difference, but if your phone is seized then they have means to break into it that are easier if it’s already in a “logged in” but locked state. A freshly rebooted phone that hasn’t yet been unlocked by the passcode is essentially “logged out” and is more secure.
The law similarly says that doing field sobriety tests (such as the walk and turn, or one legged stand), or giving a DNA sample (in Florida, compelled by law whenever you are arrested for a felony) is not being a witness against yourself, subject to the strictures of the 5th Amendment.
I vehemently disagree, but that doesn’t rule the day whenever the issue arises in court.
But, if you do them after you are in custody (I’ve seen defendants handcuffed and brought down to the station, for some other offense, and only then are given FSTs), you aren’t entitled to a Miranda warning first.
[Moderating]
Just a reminder that this thread is in FQ. The topic, therefore, isn’t what should be true, or how people should feel about police, or anything else subjective like that.