The Search & Seizure Show

Can you compel somebody to give their fingerprint in order to unlock their cell phone?


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The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero Here Attorney and senior legal instructor with Blue to Gold Law enforcement training, bringing you to the roadside chat from Greenville, Tennessee, where I'm out here for the week teaching. Alright, so this question comes from an officer in South Carolina. And he's asking about, can you compel somebody to provide their fingerprints and or facial recognition to unlock their cell phone? And the answer is yes, the answer is yes. Because fingerprints and facial ID is not testimonial, there is no recognized privacy interests, you know, in your fingerprints in your in your face. So that's generally the case and other, you know, with my legal brain, I'm also thinking of mass facial recognition software, you know, that you're, you're putting downtown, and you're identifying everybody who's downtown, implicates a different constitutional principle, but that's not relevant here. So the point is, is that if you got a court order to basically compel a person to unlock their phone with their fingerprint or facial ID, that would be lawful, that's not a Miranda violation, because it's not testimonial, however, just to get a little more, you know, in depth here, having them provide their password, or even, you know, let's say those like those, the Android type of unlock right, the pattern, that would be a Miranda issue, because the person has to think about their answer. Right. And that's testimonial, and they could incriminate themselves. Now with that, one, you're not going to be able to compel them to provide their password or pattern, unless it's a foregone conclusion. So that's what the doctrine is called. foregone conclusion, a foregone conclusion essentially says this, if you can prove to the court that you know it's on the phone, right, it's not, it's not that you don't know what's on the phone, so that you need the evidence to bolster your case and to prove your elements, then, most likely, they're going to give you a a warrant to basically compel the person to provide their, their password. Now, let me give an example. Let's say a friend of the defendants saw child porn on his phone, he knows his child porn, the guy, the defendant was bragging about it, and so forth...

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The Search & Seizure ShowBy Anthony Bandiero

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