There is no question that the law is ever changing and many of those changes are in response to changing technologies. One such area of the law where courts struggle with changing technologies concerns the application of the rights and protections afforded by the United States Constitution. At the time the Constitution was adopted, the Framers were certainly not discussing whether a bump stock could be regulated without violating the Second Amendment, whether the Fourth Amendment protected a person’s DNA, and certainly not whether the Fifth Amendment protects a person’s biometric data. Nevertheless, the constitution has withstood the test of time with these changing technologies but it hasn’t been without conflict. One area of influx right now is centered on the compelled use of biometrics for purposes unlocking a smart device in order to execute a search warrant.
It has been said that modern cell phones “are now such a pervasive and insistent part of daily like that the proverbial visitor from Mars might conclude that were an important feature of human anatomy.” Riley v. California, 573 U.S. 373, 385 (2014). Thus, it is no surprise there has been an increasing amount of litigation in the courts about whether the Government can compel a person to unlock their smart device in order to execute a search warrant. Generally, this happens when law enforcement attempts to force an individual to provide a numeric passcode, a fingerprint, or a facial scan in order to gain access to that person’s smart device to determine if there is evidence of a crime on those devices. When incriminating evidence is found, the admissibility of that evidence is often challenged by the suspected criminal filing a motion to suppress in which they allege the evidence was obtained in violation of either the Fourth or Fifth Amendment of the United States Constitution.
It is important to note that the United States Supreme Court has required search warrants in order to lawfully search a cell phone if the person does not consent to the search. Id. It always amazes me the number of criminal cases our office handles where our clients voluntarily turn over their cell phone only to have evidence obtained from the phone and used against them. Many people believe that turning the phone over won’t implicate them because it is either password or biometric protected. However, law enforcement routinely uses technology that can sometimes bypass these protections. The primary technologies used to do this Grayshift’s Gray Key and Cellbrite. Thus, if asked requested to voluntarily provide you smart device(s) knowing that the intent is to search for evidence of criminal wrongdoing, the appropriate response is always “get a warrant!”
Nevertheless, this article is not about whether you should turn over your smart device to law enforcement- that answer is always no. This article is about whether law enforcement can compel a person to provide a passcode or biometric data to unlock the device when that device is the subject of a search warrant and they have been unable to access the phone with their conventional techniques. The challenges lodged against this compulsion are generally grounded in either the Fourth Amendment and/or Fifth Amendment of the United States Constitution. Thus, lets take a quick look at how the courts have been handling this situation under each constitutional protection.
The Fourth Amendment of the United States Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Thus, one question facing courts is whether the Fourth Amendment of the United States Constitution protects an individual from being compelled to provide their biometrics or alphanumeric code to law enforcement so a search warrant can be executed. In an effort to solve this equation, courts first need to decide whether capturing physical characteristics such as a fingerprint constitutes a search. Fortunately, the United States Supreme Court has determined that capturing physical characteristics of a person such as a fingerprint constitutes a search. Hayes v. Florida, 470 U.S. 811, 816-17 (1985).
The next question is what constitutional standard of protection should be applied to protect a person from being compelled to provide their biometric data. The emerging standard is to allow officers to compel biometric information in order to execute a search warrant if (1) the procedure is carried out with dispatch an in the immediate vicinity of the premise to be searched, (2) at the time of the compulsion law enforcement has reasonable suspicion that the individual has committed the criminal act that is the subject of the search warrant and (3) reasonable suspicion that the individual’s biometric features will unlock the device (i.e. that the person being compelled is the owner or user of the device). See In Re Search Warrant No. 5165, 470 F.Supp.3d 715, 722 (2020); Matter of Search of [Redacted] Washington, D.C. 317 F. Supp. 3d 523 (2018).
The practical considerations of this standard have yet to be significantly exercised which leaves some open questions. For example, can police compel the person to provide the biometrics if they do not have a search warrant which specifically authorizes the compulsion? Can the person be physically forced to provide the information or can they simply be held in contempt for refusing to do so? Are they allowed to consult with an attorney before being compelled to provide any information? Iowa Code Section 808.6 may provide a person in Iowa some protections from being physically forced to provide this information as that code section addresses the “forcible execution” of search warrants and generally only applies to structures and vehicles and not people. Similarly, Iowa Code Section 808.7 provides that officers may “detain and search” any person during the execution of a search warrant in order to (1) protect the searcher from attack, (2) prevent the disposal or concealment of any property subject to seizure in the warrant, or (3) remove any items which is capable of causing bodily harm or can be used to resist arrest or facilitate escape.
Suffice it to say that there appears to be some support for protections under the Fourth Amendment but only time will tell how extensive and realistic those protections will be.
The Fifth Amendment of the United States Constitution provides that “no person…shall be compelled in any criminal case to a be a witness against himself.” This is generally known as the privilege against self-incrimination. For this protection to apply there must be (1) compelled, (2) incriminating, (3) testimony. Thus, it is no surprise that courts have been tasked with determining whether the Fifth Amendment precludes law enforcement officers from compelling a person to provide biometric data to unlock a smart device for purposes of executing a search warrant.
In attempting to unlock this Chinese finger cuff, the courts are generally focused on whether the collection and/or use of biometrics is testimonial. This is because there is no question that law enforcement is attempting to compel this information and if there is nothing incriminating on the device then the search becomes moot. To be testimonial under the Fifth Amendment “an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201 (1988). However, under the “act of production” doctrine announced in Fisher v. United States, 425 U.S. 391 (1976), the protections of the Fifth Amendment are extended to the production of items if the production reveals the contents of the persons thoughts or impressions. Following the decision in Fisher, the United States Supreme Court revisited this doctrine three more times and what has emerged is a fixation on whether the information provided is akin to the person providing the Government with a combination or a key that unlocks the protected area.
This combination and key distinction is what has driven many courts to conclude that compelling a person to provide biometric data is akin to a key and therefore is not testimonial and does not have Fifth Amendment protections. On the other-hand courts have found that biometrics are no different passcode and therefore apply Fifth Amendment Protections. See United States v. Wright, 431 F. Supp.3d 1175 (2020). In reaching this conclusion the courts have urged that the compelled use of biometrics is testimonial because it shows ownership/control of the phone when the phone is unlocked. The only thing certain right now is the uncertainty with which the courts are rending opinions on this issue. I expect that changes will continue both in the law and with technology as these issues are further vetted.
Iowa has yet to address either the Fourth or Fifth Amendment issues in our State Appellate Courts however when they do, I would expect to see challenges under both the State and Federal Constitutions. If you are looking for a deep read on this subject check out this law review article from BYU. For now, it is important to remember that (1) you should not voluntarily provide your smart device to law enforcement without speaking to an attorney absent a valid search warrant, (2) you should not voluntarily provide any passcode or biometric information to law enforcement officers if you are the target of a criminal investigation without first seeking the assistance of an experienced attorney, (3) there is an open question as to what the officers can actually force you to provide the information or if they can simply hold you in contempt until you comply, and (4) cell phones are readily capable of providing lots of information that may be pieced together to assist in a criminal investigation. To be safe, all smart devices should be secured with a passcode or passcode AND biometrics as the courts have steadfastly been in agreement that compelling a passcode is testimonial and will be afforded protections under the Fifth Amendment.