Recently, Virginia Circuit Court Judge, Steven C. Frucci ruled that police can make you unlock your phone with your fingerprint if you are using that biometric security feature on you cell phone. They cannot, however force you to turn over your numerical passcode if you are utilizing that method of security, the judge ruled. (Commonwealth of Virginia v. David Charles Baust) But why, and what is the difference? More importantly, does this apply in New Jersey?
As a New Jersey criminal defense attorney, I couldn’t disagree with the judge more (though admittedly my opinion is probably in the legal minority). The question is one of Constitutionally protected privacy, and requires a bit of legal analysis. The judge, in essence, was basing his opinion on the notion that you do not have an expectation of privacy with respect to your fingerprints, but you have a Fifth Amendment right not to testify against yourself, and therefore cannot be compelled to verbally tell police your pass code. The difference is semantic at best, and in my professional opinion, the judge failed to properly identify the thing that is protected. Namely, the content of the cell phone. That is, after all, why we have pass codes or biometric security; so we can protect the contents of the phone from the public. It is a lock, just like a lock on a briefcase (which would require a warrant to open), and it should make no difference what type of lock it is. It is an expression of your expectation of privacy, and it is that which should be protected.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. Amend. V. However, “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence.” Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976). Instead, “the privilege protects a person only against being incriminated by his own compelled testimonial communications.” Id., 96 S.Ct. at 1580. Although the privilege applies typically to verbal or written communications, an act that implicitly communicates a statement of fact may be within the purview of the privilege as well. United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043, 147 L.Ed.2d 24 (2000); Doe v. United States, 487 U.S. 201, 209, 108 S.Ct. 2341, “[a]lthough the contents of a document may not be privileged, the act of producing the document may be.” United States v. Doe, 465 U.S. 605, 612, 104 S.Ct. 1242, 1242, 79 L.Ed.2d 552 (1984) (Doe I). Production itself acknowledges that [a] document exists, that it is in the possession or control of the producer, and that it is authentic. Hubbell, 120 S.Ct. at 2043. In United States v. Kirschner, the court found that forcing a defendant to reveal his password requires a defendant to share ‘knowledge’ dissimilar to the production of a handwriting sample or a voice exemplar. United States v. Kirschner, 823 F. Supp 2d 665, 669 (2010). The court considered this to be “extortion of information” which forced him to “disclose the contents of his own mind” in a way that implicated the fifth amendment. Id.
In Baust, the Virginia Court followed the logic in Kirschner and Hubbell when it was called upon to determine whether the production of one’s passcode is testimonial communication and therefore subject to a defendant’s Fifth Amendment privilege against self-incrimination. The court came to the conclusion that cell phone passwords are protected under the fifth amendment, but fingerprints are not. The defendant was accused of assaulting his girlfriend. When officers arrived to his house, it was revealed that Baust had filmed sexual acts that transpired between the two of them on an electronic recording device in the room. The girlfriend informed the officers that the device might have recorded the assault, and that the device transmitted the data to the defendant’s cell phone. The state moved to compel the production of the defendant’s password and fingerprint to his cell phone. The court, echoing the logic in Kirschner and Hubbell, found that his password was protected under the fifth amendment, but that his fingerprint was not: The footage itself cannot be protected under the Fifth Amendment because it’s creation was voluntary, ie. Not compelled. As stated above, the Fifth Amendment only protects against “compelled” self-incrimination, therefore the contents of Defendant’s phone, created voluntarily, are not protected against disclosure. However, compelling defendant to provide access through his passcode is both compelled and testimonial and therefore protected . . . [t]he fingerprint, like a key, however, does not require the witness to divulge anything through his mental processes. On the contrary . . . the fingerprint of the defendant if used to access his phone is likewise non-testimonial and does not require Defendant to “communicate any knowledge” at all.]
So, does this apply to scenarios in New Jersey? Hard to say, as New Jersey has typically afforded citizens greater privacy protection than the United States Constitution, however this is a trend which appears to be changing as of late. Based on a 2013 State Supreme Court case, technically no. But it is not something I would personally count on, as the cases are not completely analogous. If a person found themselves in this situation with say, their iPhone, powering the phone down prior to seizure would be the best method to prevent access. When the phone powers back on, it will require a pass code to be entered, even if you have the biometric fingerprint security enabled. Better safe than sorry.
New Jersey Supreme Court Restricts Police Searches Of Cell Phone Data, New York Times, July 18, 2013