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Search Warrants for Touch ID

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by: Ryan Scott • November 2, 2016 • 2 comments

If you haven't seen this yet, you will. And the courts still have not resolved compelling a defendant to provide his pin.

But, as always, Orin Kerr has something to say on this topic. He sets up the issue with these two hypotheticals:

Let’s start with an easy case, which I’ll label Case 1. The government orders a person to place a particular finger on a particular phone’s fingerprint reader. The Fifth Amendment is not implicated here because the person is not testifying. He is not saying anything about what is going on in his mind, so no Fifth Amendment testimony has been compelled. The police could force him to put the finger on the fingerprint reader if he were asleep or otherwise unconscious. No testimonial statement from the person is implied by the act of placing his finger on the reader.
Now consider Case 2. The police search a home with a warrant. The police find only one electronic device in the house — a single iPhone with Touch ID enabled — on the kitchen table. There are seven residents present at the house. When the police ask the seven residents who owns that phone, they all refuse to say. An officer approaches one of the residents and says: “I’m guessing that this is your phone. If you don’t go over there and unlock it with Touch ID, I’m going to arrest you for refusing my order.” It turns out the officer was right: It is that resident’s phone. The question is, does that resident have a Fifth Amendment right not to comply with the order?