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Is Your Fingerprint Protected by the Fifth Amendment?

By Jonathan R. Tung, Esq. on May 09, 2016 | Last updated on March 21, 2019

By now, everyone's heard of the case of Paytsar Bkhchadzhyan, the 29 year old woman whose number of crimes nearly match her age. Last February, she was court-ordered to submit her fingerprint in order to access her iPhone that was seized at an Armenian Power gang member's residence in Glendale, California. But what are the legal implications?

Court Orders

Paytsar Bkhchadzhyan was served court orders in February to provide her fingerprint in order to unlock her cell phone that was seized in a Glendale apartment that allegedly belonged to her boyfriend who also happened to be a member of a notorious Armenian gang.

The phone is currently on lockdown because Paytsar set the phone to only be onlocked with her thumbprint.

Questions

Currently, neither Bkhchadzhyan's name nor her boyfriend's name show up in a search of federal court records, which means that charges are either sealed, have not yet been filed, or have been lost. We've ruled out the last option.

But the case is fraught with civil rights issues. Several legal critics have opined that a passcode can be a form of testimonial evidence since it can be written down or uttered. And since the divulging of a passcode can certainly lead to apparently self-incriminating material, these same commentators have pushed the idea that such codes deserve Fifth Amendment protection.

But since fingerprints do not have to be uttered or written down (indeed, they can't be), they are not testimonial and thus, at least to some, fall outside of Fifth Amendment protections. In other words, fingerprints belong to the general body of evidence as if they were found at the scene of a crime.

Personal Take

Although the logic regarding the utterability of fingerprints appears flawless, there is a problem.

We're already squarely within the age in which fingerprints can be stored digitally and not just by analog means. Since digital storage is just 1s and 0s, this theoretically means that one could actually utter a series of 1 and 0s that would reveal their fingerprint -- and even write it down. This basically drags back a fingerprint back into the realm of Fifth Amendment protection.

What's more, the analogy of fingerprints being left at a crime scene is a stretch. When fingerprints are found at a crime scene, the suspect left those prints there willingly -- albeit, stupidly. When a court orders a suspect to surrender a fingerprint, what it's really doing is ordering her to surrender possession of her finger for a few moments against her will. The circumstances are completely different, and people ought to give this debate some more thought.

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