Judge Steven C. Frucci in Virginia Beach recently decided that a criminal defendant could be forced to unlock his phone using his fingerprints .
Reporting of the decision has suggested that the police can make you unlock your phone whenever they feel like it. They can’t, and that wasn’t what the Virginia Beach decision was about.
The United States Supreme Court has already decided that police cannot search your cell phone without a warrant or an exception to the warrant requirement. That decision, Riley v. California , applied the Fourth Amendment’s guarantee against unreasonable searches and seizures. Judge Frucci didn’t decide otherwise.
Rather, Judge Frucci decided, correctly in my view, that it does not violate the Fifth Amendment’s protection against compelled self-incrimination to be forced to provide a fingerprint. Duh. His decision only applies in Virginia, and isn’t even binding there, but I expect that any judge would reach the same result.
It’s maybe a little closer question than it sounds like; Judge Frucci also decided, correctly in my view, that the defendant cannot be forced to provide a pass-code or PIN number to provide access to the phone. Providing a PIN would involve providing knowledge personal to the defendant, which would fall within the prohibition on compelled self-incrimination. Providing a fingerprint (or a DNA sample, or even a handwriting sample) does not require the defendant to reveal knowledge, and so it is unaffected by the prohibition on compelled self-incrimination.
That means that, if the police have a warrant or some other lawful basis to read the information your phone, they can make you provide a fingerprint to do so. But a police officer doesn’t get to look in your phone as part of stopping you for a traffic infraction. Like pretty much every criminal defense attorney, I think the Fourth and Fifth amendments provide essential protections from government invasion and overreach, and I don’t like to see those protections eroded by the courts. Judge Frucci did not erode those decisions in this case. Rather, his narrow decision was reported as a much broader holding than it actually was.
