Fingerprints, Facial Recognition, Retinal Scans, Passcodes and the Fifth Amendment

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Whether facing an investigation into human trafficking, drug distribution, criminal gang violence, or child sexual exploitation, investigators must come to grips with the Fourth and Fifth Amendment rules impacting access to digital evidence. Maybe once upon a time only financial fraud investigators needed to be well-versed in wire transfers and communications fraud, but today nearly every major crime has some association with digital evidence. Consider the tragic case of the New Zealand mosque mass murders, where the suspect live-streamed his killing spree and the preceding rants on social media—that’s critical digital evidence. Accessing that kind of digital evidence in the United States requires familiarity with emerging constitutional doctrines. As an illustration, consider the following cases.

Commonwealth v. Jones, 2019 (Mass. 2019)

A woman reported Dennis Jones had stolen her purse at a hotel and asked the police for their help to retrieve it. In the course of the investigation, she admitted she met Jones through an online dating service. After losing her housing, she agreed to work for Jones as a prostitute in exchange for a place to live, but soon became fearful and tried to leave him. She showed police her cell phone and pointed out texts and calls from Jones’ phone used to arrange for prostitution encounters.

The woman called Jones to arrange for a meeting. When Jones showed up, officers arrested him and seized two cell phones from his pants pocket. An LG phone stored the same number the woman used to call Jones. The phone number from the same LG phone also appeared on Backpage.com advertisements for an escort service. Jones remained silent about the ownership of the phone, its use, and whether it was protected by a passcode.

The officers obtained a warrant to compel Jones to provide the passcode for the LG phone. Jones argued providing the passcode, assuming he knew it, would violate his privilege against self-incrimination guaranteed under the Fifth Amendment. The prosecution countered it was a “foregone conclusion” Jones knew the passcode.

The Fifth Amendment privilege against self-incrimination protects against compelled incriminating testimonial communications. A silent act, such as providing a passcode, may be testimonial in nature if the act has “communicative aspects.” If providing the passcode communicated Jones controlled the cell phone, his Fifth Amendment rights might be implicated. On the other hand, if the prosecution could show the government already knew Jones controlled the cell phone and possessed the passcode, that would add little or nothing to what the prosecution knew and would not be testimonial communication.

The Supreme Court articulated the “foregone conclusion doctrine” in Fisher v. United States (425 U.S. 391 (1976)). The Court held when the testimonial communication from a compelled act “adds little or nothing to the sum total of the Government’s information,” the implied testimonial communication is essentially a “foregone conclusion” and does not violate the privilege against self-incrimination. Courts applying the foregone conclusion exception to the privilege against self-incrimination require the prosecution to show the government already knows of the existence of the evidence, the subject possesses or controls access to the evidence, and the evidence is authentic.

The prosecution argued it was a foregone conclusion Jones controlled access to the LG phone. In support, the prosecution presented these facts:

  • The woman conversed directly with Jones by calling the LG phone.
  • She exchanged text messages about prostitution with Jones via the LG phone.
  • Jones’ name and LG phone number were listed in the woman’s cell phone contact list.
  • Jones listed the LG cell phone number as his on an unrelated arrest just one month prior.
  • The billing information for the LG cell phone listed a secondary cell phone number, listed in Jones’ name.
  • The cell site location information for the LG cell phone showed the phone in locations where Jones was known to be present.

Based on these facts, and reasonable inferences drawn therefrom, the court held Jones’ “knowledge of the password is therefore a foregone conclusion and not subject to the protections of the Fifth Amendment” and ordered Jones to provide the passcode.

Matter of Residence in Oakland, California, 354 F.Supp.3d 1010 (N.D. Cal. 2019)

In another recent case in Oakland, Calif., a federal judge declined to apply the foregone conclusion doctrine to compel touching a finger or giving a facial biometric scan to access digital devices seized during execution of a search warrant. Two unnamed suspects were believed to be extorting a third person, communicating by Facebook Messenger. The suspects sent threatening communications via using the Facebook application, claiming to have an embarrassing video they would broadcast unless the victim gave them money.

Officers sought a warrant to search the suspects’ home, asking to seize all digital devices and to compel all persons present at the time of the search “to press a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition, for the purposes of unlocking the digital devices.” The court granted the warrant to search the residence but limited the scope of the permissible seizure and refused to compel biometric scans for the persons present.

The judge agreed with the officers that probable cause existed to search the suspect’s home. However, the judge ruled the request to seize and search digital devices found on anyone present was “overbroad” and violated the Fourth Amendment. The judge suggested the officers craft a more narrowly defined warrant, seeking authority to search only “those devices reasonably believed by law enforcement to be owned or controlled by the two suspects identified in the [initial] affidavit.”

The Fourth Amendment’s probable cause analysis focuses on the “place to be searched” and the “things to be seized,” not on who owns or controls the place. In a separate but related case (Matter of Search of [Redacted] Washington, D.C., 317 F.Supp.3d 523 (D.D.C. 2018)), a court authorized a search of premises for any digital device located at the location that could reasonably contain evidence or information related to the subject of the search warrant. The court also ordered any persons present to provide biometric features to unlock the digital devices.

The court ruled, “when attempting to unlock a telephone, computer or other electronic device during the execution of a search warrant authorizing a search of the device, the government may compel the use of an individual’s biometric features,” when the following factors are met:

“(1) the procedure is carried out with dispatch and in the immediate vicinity of the premises to be searched, and if, at time of the compulsion, the government has (2) reasonable suspicion that the suspect has committed a criminal act that is the subject matter of the warrant, and (3) reasonable suspicion that the individual’s biometric features will unlock the device, that is, for example, because there is a reasonable suspicion to believe that the individual is a user of the device.”

The court also observed, “the line between testimonial and non-testimonial communications under the Fifth Amendment is not crystal clear.” Indeed, a multitude of cases from state and federal courts have reached differing approaches and conclusions on the Fourth and Fifth Amendments of requiring biometric features and passcodes to decrypt digital devices. (See also Matter of Search of a Residence in Aptos, California, 2018 (N.D. Cal. 2018), where the court ruled the foregone conclusion doctrine applied to compel decryption of iPhone and other devices containing child pornography).

The judge in the Oakland case ruled compelling suspects to communicate passcodes or provide biometric features would violate the suspects’ Fifth Amendment rights. How the judge reached this conclusion bears close attention—I believe her logic has far-reaching implications.

The judge cited the recent Supreme Court decision in Carpenter v. United States (138 S. Ct. 2206 (2018)), in which the Court observed the Fourth Amendment application to advances in technology “does not fit neatly under existing precedents,” and that lower courts should “take account of more sophisticated systems that are already in use or in development.”

The judge also ruled the foregone conclusion doctrine could not apply because the officers could not anticipate what evidence would be found on the digital devices. Perhaps not. We don’t have the full facts of the affidavit, but it seems to be a debatable proposition given the operation of Facebook Messenger.

The judge said, “technology is outpacing the law” and reached a conclusion about applicability of the Fifth Amendment privilege against self-incrimination before either suspect claimed a violation. A bedrock principle of Fifth Amendment jurisprudence is that the privilege against self-incrimination “generally is not self-executing” and any person who seeks the protection of the privilege “must claim it” (see Minnesota v. Murphy, 465 U.S. 420 (1984)). Is the judge in this case attempting to take the caution about advancing technology and place it ahead of clearly established Supreme Court precedence?

Maybe once upon a time only financial fraud investigators needed to be well-versed in wire transfers and communications fraud, but today nearly every major crime has some association with digital evidence.

One other question I’ve not yet seen raised in court relates to border searches. Computers, cell phones, and other digital devices are routinely searched at the border. Current U.S. Customs and Border Protection regulations instruct agents to seize any device if the owner does not comply with instructions to “open” the device with a passcode or biometric feature. No reasonable suspicion or probable cause is necessary because of the broad and powerful Fourth Amendment border search exception. If courts apply Fifth Amendment protections against compelled passcodes or biometric features, and the border search doctrine does not apply, what of evidence discovered during a search after compelled access to the device?

Stay tuned. These questions are certain to work their way through the appellate courts, perhaps eventually reaching the Supreme Court.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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