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Cops Can Force Suspects to Unlock Phones via Fingerprint: Va. Court

By Brett Snider, Esq. on November 04, 2014 | Last updated on March 21, 2019

Police can force suspects to unlock their smartphones with a fingerprint, which is different than a passcode, according to a Virginia judge's recent ruling.

While the U.S. Supreme Court recently ruled that police officers may not search inside an arrestee's cell phone without a warrant, a Virginia state judge believes officers might be able to unlock it with a fingerprint. Judge Steven C. Frucci ruled that while a suspect may not be compelled to give up his or her secret code, a fingerprint is a completely different story.

Does this ruling spell ruin for fingerprint technology protecting cell phone privacy?

Fingerprints Are Not Testimonial

Here's what was at issue in this case: The Fifth Amendment provides defendants with the right against self-incrimination, meaning any suspect cannot be compelled to be a witness against him or herself. This means that the government cannot compel a suspect to produce testimony or information that would serve to incriminate him or her.

However, federal courts have interpreted "testimony" fairly narrowly, judging that many forms of evidence are "non-testimonial" and thus outside the Fifth Amendment's protections. Significant examples of non-testimonial evidence include:

  • Voice samples,
  • Writing samples,
  • DNA swabs, and
  • Fingerprints.

As attorney Marcia Hoffman explained in Wired, evidence is only testimonial "when it reveals the contents of your mind." Since fingerprints and similar forms of physical evidence aren't actually something you hold in your mind, police have legal authority to take them.

Using Fingerprints to Unlock Phones

The Supreme Court ruled in the late 1980s that there's a difference between being forced to give up a key to a locked box versus giving up a combination or passcode to a safe. Courts like Judge Frucci's have taken this ruling to heart, essentially finding that if a phone can be unlocked with an arrestee's fingerprint, it's like finding a key and a lockbox on a suspect.

This Virginia ruling does not mean that police can now search a fingerprint-unlockable smartphone without a warrant; the Supreme Court has said a warrant is typically required. However, where a suspect may not have been forced to give up his or her passcode, officers with a search warrant for a defendant's phone may force him or her to unlock the phone with a fingerprint.

Both the latest generation of iPhones and some Android devices have been equipped with fingerprint-unlocking features. However, Ars Technica reports that Apple devices require the user to enter a passcode "if the phone hasn't been used in 48 hours."

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