November 22, 2017 By Wallin & Klarich

The Fifth Amendment to the U.S. Constitution protects you from incriminating yourself. However, the Fifth Amendment does not apply to physical evidence, such as your fingerprint. So, what happens when police ask you to use your fingerprint to unlock an iPad? Do you have to provide your fingerprint to police?

According to a recent court case, police have a right to ask you for your fingerprint. Why is providing your passcode to unlock your phone protected by the Fifth Amendment while your fingerprint is not?

Touch ID and Your Right to Your Fingerprint

Imagine you and a few friends rent a home. One day, the police knock on your door with a search warrant. They tell you and the other residents that they believe someone at your home is in possession of an iPad that is storing child pornography.

In order to confirm the iPad is storing child pornography, the police ask you and each one of your roommates to supply your fingerprint to unlock the device. Do you have to submit your fingerprint?

This is exactly what happened in a recent case reviewed by a U.S. District Court (Case No. 17 M 85). According to the court’s ruling, the police can require you and your roommates to submit a fingerprint to attempt to unlock the device.

Fingerprints or Pass Codes: The Limits of the Fifth Amendment

This ruling is part of a growing body of case law that narrows the scope of your Fifth Amendment protections when it comes to smart devices that can be locked with fingerprints and passcodes, such as iPhones. 

In this case and in other similar recent cases, courts have drawn a line between passcodes and fingerprints being used to unlock electronic devices. Courts have held that the Fifth Amendment does not apply to physical evidence, such as fingerprints, hair and skin samples, or other readily apparent physical characteristics unique to individuals.

The Fifth Amendment does apply to the facts known only to you in your mind. So, for example, your fingerprint is not protected from examination by law enforcement. However, since telling police your passcode would require you to communicate potentially self-incriminating information, you are legally able to refuse to tell police the passcode to unlock your iPhone.

This also means you do not have to tell police which finger you use to unlock your device. This is important because Apple and other tech companies often build a security feature into their devices that will not allow you to unlock a phone after a number of failed attempts.

Do You Think Your Fingerprint Should Be Protected?

With new technology, your fingerprint could prove to be very important in a criminal case. Do you believe law enforcement should be able to force you to provide your fingerprint for a device that doesn’t belong to you? Please share your thoughts in the comments section below.

If you or someone you love is accused of a crime, remember your Fifth Amendment rights. You should exercise your rights and contact an experienced criminal defense attorney immediately.

At Wallin & Klarich, our skilled criminal lawyers have more than 35 years of experience successfully defending clients facing criminal charges. With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Call our offices today at (888) 280-6839 for a free phone consultation. We will be there when you call.

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