Criminals: Don’t Use the Fingerprint Scanner or Facial Recognition To Unlock Your Smart Phones

“Smartphones are ubiquitous in modern life.” Katelin Eunjoo Seo v. State of Indiana. There already countless reasons not to carry a smartphone if you happen to be involved in criminal activities. The smartphone keeps track of your location, just about everything you say, and the questions you want the answers to. It contains a list of your associates and their contact information. It contains video, audio, and photographs of your activities. And you think that information is safe because the company that manufactured that smartphone won’t help law enforcement get into your phone. Well, those companies might not, but a court can order you to do it.

It’s common knowledge that the police can get a search warrant to search your home, office, car, files, or underground lair. But can the police make you open your smartphone?

Unfortunately, the answer is probably, but for now, only if you use the fingerprint scanner or facial recognition. It is “ironic” that the “state of the art electronic security provided by physical characteristics such as facial recognition and retinal scans” might be the least secure from a legal perspective. Seo v. State.

The Indiana Court of Appeals recently decided the case of Katelin Eunjoo Seo v. State of Indiana, 29A05-1710-CR-2466 (August 21, 2018). In that case, the Hamilton County Sheriff’s Department and the Hamilton County Prosecutor’s Office sought to compel a woman to open her Apple iPhone 7 Plus. They requested a search warrant to require her to produce her smartphone and to unlock it so they could search it. She refused. They then requested that the Court hold her in contempt from refusing to unlock her phone. The Court did. She appealed.

The Court of Appeals ultimately held in her favor and held that “the trial court’s order requiring her to unlock her phone violated the guarantee against self-incrimination contained in the Fifth Amendment.” Although that is a victory for privacy today, the writing between the lines suggests that it is only a temporary victory. Two judges identified the irony concerning physical characteristics and smartphone security. The dissenting judge would have allowed the search.

It’s long been the law that you can be compelled to provide fingerprints, blood, hair, and other physical characteristics. While the Seo case prohibits compelling a person to open their phone with a passcode, at least until the Supreme Court reviews the case, it leaves open the possibility that a person might be required to present their fingerprint, eyeball, or face to unlock their phone. The passcode may be protected by the Fifth Amendment; your fingerprint, eyeball, and face are not.

Matthew Kestian prosecuted major felonies, sex crimes, and white collar crimes for over seven years. He prepared countless search warrants smartphones and computers for a variety of law enforcement agencies for local, state, and federal law enforcement agencies. He now practices as a criminal defense lawyer throughout central Indiana.

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