February 28, 2019 By Wallin & Klarich

Facial recognition. Retinal scans. Fingerprint sensors. These used to be the kinds of technology you would only see in a sci-fi movie. Now, they are all ways to unlock your smartphone.

Rapid changes in technology have left many important legal questions about what the police can and cannot do when it comes to searching your phone. Can law enforcement force you to unlock your cellphone? Should a phone that unlocks with a fingerprint or facial scan be treated differently than a phone that unlocks with a password?

Courts have previously ruled that cellphone passwords are protected by the Fifth Amendment because forcing a person to provide their password forces that person to turn over testimonial information known only to the owner of the phone. This violates the Fifth Amendment right to not testify against yourself.

But what about fingerprint or facial scan unlocking? Can law enforcement legally force you to unlock your phone these ways?

California Judge Denies Search Warrant for Fingerprint and Face Unlock

Courts have ruled that law enforcement can force you to use your fingerprints to unlock your cellphone because fingerprints are physical evidence and are not considered testimonial.

However, a judge in the Northern District Court of California recently denied a search warrant in a case where federal authorities were requesting the ability to search a suspect’s phones via facial recognition or a fingerprint or iris scan.

The judge ruled that the end goal of federal authorities in this case was the same as requiring someone to turn over a password: to unlock the device. The judge explained:

If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.

The undersigned finds that a biometric feature is analogous to the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.”

No Nationwide Standard Yet

The question of whether authorities can force you to unlock your phone via fingerprint or facial recognition has yet to come before the Supreme Court. However, the Supreme Court previously ruled in Riley v. California (No. 13-132) that police must obtain a warrant to search the contents of your phone. Thus, police cannot search your phone without your permission, even if they were to find it unlocked on your person during a search.

So, regardless of whether your phone was unlocked or law enforcement had to unlock it, any evidence they obtain could be inadmissible in court if they committed the search without a warrant and without your permission.

This court ruling only applies to the search warrant federal authorities were seeking in this particular case, but it is possible that this ruling will set precedent for future cases. That is why you should speak to an experienced criminal defense attorney who could argue that a search of your cellphone violated your constitutional rights if you are facing criminal charges based on evidence found in your phone.

Contact the Criminal Defense Attorneys at Wallin & Klarich Today

As the judge in this case wrote, “Technology is outpacing the law.” That is why you should seek the assistance of an experienced criminal defense attorney who can protect your constitutional rights if you are facing criminal charges. At Wallin & Klarich, our skilled criminal defense lawyers have more than 35 years of experience successfully defending clients facing criminal charges. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our offices today at (888) 280-6839 for a free phone consultation. We will get through this together.

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