Minnesota Supreme Court Finally Answers Questions Whether Police Can Force You to Unlock Your Phone with Fingerprint
We’ve previously addressed this issue here and here. The Minnesota Supreme Court has finally chimed in and appears to have settled the debate.
A FINGERPRINT IS DNA
The Court reasoned that the Fifth Amendment protection against self-incrimination does not apply in these circumstances because an individual is not being forced to reveal oral information. In other words, an individual is not being forced to make an incriminating statement – they’re just being forced to provide the equivalent of a DNA sample.
Courts have repeatedly upheld a state’s ability to gather forensic DNA evidence, most commonly done by swabbing the inner cheek, with a search warrant. The Minnesota Supreme Court said that forcing a person to put a finger on a phone is the same thing as a cheek swab.
POLICE CANNOT FORCE YOU TO VERBALLY STATE YOUR PASSCODE
I doubt the Minnesota Supreme Court would have reached the same conclusion if Diamond involved forcing the individual to state his passcode rather than provide a fingerprint. Revealing the passcode requires an individual to give a statement, to verbally say a passcode to police.
Such a statement would almost certainly be covered under the Fifth Amendment protection against self-incrimination. Police could not force a person to state the passcode to unlock a phone, even with a search warrant. If you have any doubt as to how you should lock up your phone or device, best to only use a passcode.
CHALLENGE THE SEARCH WARRANT
Even though the police may force a person to provide a fingerprint to unlock a phone, the person may still be in a position to challenge the search of the phone. Police must obtain a search warrant before forcing a person to provide a fingerprint. The search warrant application must establish sufficient probable cause that the police will find evidence of criminal activity on the phone or device to be searched.
In other words, a police officer must explain in writing what information he or she has that leads him or her to believe that there is evidence of a crime that is contained in a phone or device. The search warrant application is then submitted to a judge. The judge reviews the application and makes a determination whether there is sufficient probable cause of criminal activity.
Even if your phone or device is searched pursuant to a search warrant, you may still be able to argue there was insufficient probable cause to issue the search warrant. A successful challenge will result in
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