Month: March 2018

Five Reasons Louisiana May be the Next State to Repeal Capital Punishment

Author: Sarah M. Lambert*

 Fewer people are being sentenced to death in Louisiana.  Of those who are sentenced to death, even fewer are being executed.  In the past fifteen years, only one person has been executed in Louisiana.  The decline in capital punishment reflects a broader trend throughout the United States and around the world.  Public support for the death penalty is the lowest it has been in forty years, with less than half of Americans now supporting the practice.[1]  Bipartisan support for repealing capital punishment is on the rise across the nation, including in Louisiana.  During the 2017 Regular Legislative Session, Democratic Representative Terry Landry introduced House Bill 101 in Louisiana’s House of Representatives, and Republican Senator Dan Claitor introduced a companion, Bill 142, in the Louisiana Senate.  The overarching goal of both bills was to repeal capital punishment in Louisiana.

The Senate Bill passed the Judiciary C Senate Committee with only one senator voting in opposition, while House Bill 101 was one vote short of passage in the House’s Criminal Justice Committee, with a final vote of 8 to 9.  These setbacks have not deterred Louisiana lawmakers from their efforts to abolish capital punishment.  Two similar bills will soon be debated in the 2018 Regular Legislative Session: House Bill 162, introduced by Representative Terry Landry, and Senate Bill 51, introduced by Senator Jean-Paul Morrell.  The goal remains the same: to repeal capital punishment in Louisiana.  Like the 2017 bills, House Bill 162 and Senate Bill 51 provide for the prospective abolition of the death penalty in Louisiana.  Specifically, they propose to eliminate the district attorney’s option to seek a capital verdict for any offenses occurring on or after August 1, 2018.  Since the bills do not provide for retroactive application, the sentences of more than seventy prisoners currently on death row in Louisiana would not be impacted, absent gubernatorial commutations.

This year, only one additional vote is needed for the bills to make it to the respective floors for debate. Louisiana is on track to join the nineteen U.S. states and Washington, D.C. that have already eliminated the death penalty entirely.  Louisiana may seem like an unlikely candidate for the next repeal given its status as a conservative state in the deep south and the world’s leading incarcerator.  However, several key factors make Louisiana the state most likely to next abolish capital punishment.  These factors include: the religious values of Louisiana’s citizens, the state’s death row exoneration and reversal rate, its current financial crisis, its history of prosecutorial misconduct, and its arbitrary application of capital punishment.

  1. Louisiana’s religious values could contribute to the state repealing the death penalty.

Religion is a highly valued aspect of life in Louisiana.[2]  Approximately 26% of adults in Louisiana identify as Catholic.[3]  Catholics generally oppose the death penalty, which is reflected in the abolition movement.  Importantly, states that have a high population of Catholics have repealed the death penalty at significantly higher rates than other states.[4]  Whereas 38% of states have repealed the death penalty overall, 70% of the ten most Catholic states have repealed capital punishment.  Louisiana is in the small 30% minority that has not.

For example, 42% of adults in Rhode Island identify as Catholic, and Rhode Island repealed the death penalty.[5]  Adult Catholics make up 34% of the population in Massachusetts, New Jersey, and New Mexico, and all three of these states have repealed the death penalty.  Connecticut has a Catholic population of 33% and it has ended capital punishment. With a Catholic population of 31%, New York has also ended punishment by death. North Dakota, which has a 26% Catholic population, put an end to the death penalty long ago.  Of the ten states with the highest percentages of Catholic citizens, California (28%), Louisiana (26%), and New Hampshire (26%) are the only three states that have not yet abolished capital punishment.  However, both New Hampshire and Louisiana introduced abolition bills this year.

Bishop Shelton J. Fabre, of the Diocese of Houma-Thibodaux, testified at both hearings last year in support of the abolition bills and expressed the value of human life.[6]   This is in accordance with the view of the Catholic Church, as Pope Francis recently received national attention when he spoke out strongly against capital punishment on behalf of the Catholic Church, stating:

Nowadays the death penalty is inadmissible, no matter how serious the crime committed.  It is an offence against the inviolability of life and the dignity of the human person, which contradicts God’s plan for man and society, and his merciful justice, and impedes the penalty from fulfilling any just objective.  It does not render justice to the victims, but rather fosters vengeance.[7]

Pope Francis further explained, “For the rule of law, the death penalty represents a failure, as it obliges the state to kill in the name of justice. . .. Justice can never be wrought by killing a human being . . . .”[8]

The Catholic Church is not the only religious group that opposes capital punishment.  In fact, many religious leaders have denounced the death penalty, including the American Baptist Church, the Evangelical Lutheran Church in America, and the United Methodist Church.  Additionally, all major Jewish movements in the United States oppose the practice in some form.  The religions that maintain support for capital punishment include the Southern Baptist Convention, the National Association of Evangelicals, and some Protestants.

  1. Louisiana’s high death row exoneration rate coupled with its reversal rate of death sentences could contribute to the state repealing the death penalty.

Most would agree that protection of the innocent is an essential element of any effective justice system.  Unfortunately, Louisiana has the highest exoneration rate in the country.  It has sentenced more innocent people to death per capita than any other state.[9]  Eleven innocent people have been exonerated from death row in Louisiana in the past thirty years: Larry Hudson (wrongfully imprisoned for almost 30 years); Curtis Kyles (wrongfully imprisoned for over thirteen years); Shareef Cousin (wrongfully imprisoned for three years); Michael Graham (wrongfully imprisoned over thirteen years); Albert Burrell (wrongfully imprisoned for over thirteen years); John Thompson (wrongfully imprisoned for eighteen years); Dan Bright (wrongfully imprisoned for eight years); Ryan Matthews (wrongfully imprisoned for over five years); Damon Thibodeaux (wrongfully imprisoned for fifteen years); Glenn Ford (wrongfully imprisoned for almost thirty years and sadly died from cancer one year after he obtained his freedom); and Rodricus Crawford (wrongfully imprisoned for over three years).

The reversal rate of Louisiana death sentences is also overwhelming.  From 1974 to 2015, 76% of Louisiana’s death sentences were reversed and 6% resulted in exoneration.[10]  This means there was an 82% error rate and only 18% of Louisiana’s death sentences were upheld.  Proven cases of innocence along with the lingering fear of condemning an innocent person to die have resulted in increased support for abolition of the death penalty.

  1. Louisiana’s financial crisis could contribute to the state repealing the death penalty.

Louisiana is in the midst of a budget crisis with an estimated $994 million budget deficit.[11]  Many residents and organizations—including college students, disabled persons, hospitals, district attorneys, and sheriffs—are uncertain “about the future of their state funding.”[12]  Studies among a number of jurisdictions reveal that a trial seeking death costs at least $1 million dollars more than a trial seeking life without the possibility of parole.[13]  States with capital punishment pay this higher rate each time a prosecutor seeks a death sentence—whether one is actually handed down and even if the defendant is not actually executed.  The trial phase is just one phase of the capital system.  Once a defendant is sentenced to death, the state must bear the financial burden of the capital system every year thereafter until the inmate is executed (which is unlikely) or dies in prison (which is much more likely).[14]

Though an extensive study of the cost of Louisiana’s capital punishment system has not been conducted, Louisiana has spent almost $100 million on capital defense alone in the past ten years (this equates to ten million dollars per year).  And this amount only accounts for a small part of the capital punishment system—this does not include prosecution costs, incarceration costs, maintenance of death row, the lengthy mandatory appeals process, or other associated expenses. Therefore, the state likely expended millions of dollars on the 82% of Louisiana capital cases that were ultimately reversed.  While prosecution costs are not tracked, in some districts, individual prosecutors are paid $150 an hour for their work on capital cases.[15]

G. Ben Cohen, a criminal defense attorney for the Promise of Justice Initiative in New Orleans, reported that “[a]s of today, the people on death row currently in Louisiana have spent 17.3 years there. On average.”[16] Since executions are often not carried out, the length of time inmates spend on death row will only grow longer, as will the expenses associated therewith.  Cohen estimates the cost of maintaining the death penalty system long enough to secure an execution would be over $230 million without taking into account the costs of prosecuting the cases, as well as the expenses imposed on the courts and the Department of Corrections.

When Kansas was in the midst of a state budget deficit, Republican State Senator Carolynn McGinn attempted to address the shortfall by sponsoring a bill that would replace the death penalty with life sentences.[17]  She discussed the high financial cost that Kansas bears in maintaining a capital system and highlighted the costs of capital investigations, lengthy trials, and frequent capital appeals.  Louisiana bears similarly extensive financial costs.  Removing the death penalty from the books in Louisiana could be the way out of the state’s current economic crisis.

  1. Louisiana’s history of prosecutorial misconduct could contribute to the state repealing the death penalty.

A study of Louisiana death row exonerations in the past decade revealed that the number one contributing cause to wrongful convictions was official misconduct, which was found in 82.4% of capital cases.[18]  Many scholars and the media have expressed a deep concern for this misconduct, as prosecutors hold wide-ranging authority and discretion but appear to have very little oversight.[19]  Prosecutors are held accountable under state attorney disciplinary systems in theory, but many have questioned their success in punishing unethical prosecutorial conduct.

Prosecutorial misconduct in Louisiana has been wide-ranging and highly publicized.  This history includes failing to disclose exculpatory evidence, hiding and/or destroying evidence, intimidation of witnesses, use of unreliable witnesses, withholding crucial information about witnesses, making improper statements to the jury; discrimination in jury selection, and more.[20]  Sources report that official misconduct has been present in all of the death sentences in Louisiana that were later proven wrongful.[21]

Despite many documented instances of prosecutorial misconduct, only one prosecutor in Louisiana, Roger Jordan, has ever been disciplined.[22]  His punishment for withholding evidence in a death penalty case was a three-month suspension that was deferred in its entirety.[23]  Even in the recent case where Assistant District Attorney Ronald Seastrunk was found to have withheld exculpatory evidence, he was merely “publicly reprimanded.”[24]

Though there are many ethical, rule-abiding prosecutors in Louisiana, it only takes one unethical prosecutor to impact the entire system, particularly in the context of the death penalty.  Capital prosecutors in Louisiana have engaged in their fair share of questionable conduct.  Former Caddo Parish District Attorney Dale Cox, who has been recognized as the tenth “deadliest prosecutor” in the nation, was responsible for one-third of Louisiana’s death sentences from 2010 to 2015,[25] and he prosecuted the most recent death row exoneree, Rodricus Crawford.[26]  Cox is quoted as saying, “I think we need to kill more people. . . . We’re going the wrong way with the death penalty . . . we need it more than ever and we’re using it less now.”[27]  Due to the public backlash he received following these controversial statements, Cox decided not to run for re-election.[28]

Former Orleans Parish prosecutor Jim Williams kept a model electric chair on his desk and attached pictures of the five men he sent to death row on the chair; two of these men were later exonerated, two had their death sentences commuted to life, and the last was granted a new trial.[29]  Referring to his work as a prosecutor, Williams once said, “There was no thrill for me unless there was a chance for the death penalty.”[30]  These actions bring into question the level of discretion that should be afforded to one person, particularly when a person’s life is at stake.

  1. Louisiana’s documented arbitrary application of capital punishment could contribute to the state repealing the death penalty.

U.S. Supreme Court Justice Stephen G. Breyer has continually expressed his belief that it is time to revisit whether the death penalty can be applied in a reliable manner.[31]  One of his main concerns is arbitrary application of death sentences.

Louisiana’s application of the death penalty shows that this most severe form of punishment is not reserved for “the worst of the worst.”  The severity of the crime is not the determining factor in whether a defendant will be sentenced to death.  Rather, it seems that a Louisiana defendant’s likelihood of being punished by death has more to do with where the defendant is being prosecuted, the defendant’s race, and the victim’s race.

In Louisiana, there is a direct correlation between the likelihood of a death sentence and the place of prosecution.  In the past fifteen years, only twelve of Louisiana’s sixty-four parishes have sent defendants to death row, with Caddo and East Baton Rouge Parishes responsible for almost half of these death sentences.

There is also a direct correlation between the likelihood of a death sentence and the defendant and his victim’s race.[32]  No white person has been executed in Louisiana for a crime against a black victim since 1752, yet a black person was last executed for killing a white victim in 2000 (the third most recent execution in Louisiana).  A black male who kills a white female in Louisiana is thirty times more likely to be sentenced to death than a black male who kills a fellow black male.[33]  Defendants with white victims are over six times more likely to be sentenced to death than those with black victims and defendants with white victims are fourteen times more likely to be executed once sentenced to death than those with black victims.[34]  Defendants whose victims are white are also less likely to have their cases reversed during the appeals process than those whose victims are black.

Conclusion

Statistics show a drastic decrease in the use of the death penalty at the national and regional level, as well as in in Louisiana.  The aforementioned factors make Louisiana uniquely situated to be the next state to abolish capital punishment.  These factors should weigh heavily on the minds of legislators as they decide whether abolition of the death penalty is in Louisiana’s best interest.  Abolishing the death penalty would embrace the moral values of many of Louisiana’s residents and it could mean saving millions—even billions—of dollars.  This could lead to greater access to education, higher quality healthcare, more services for the disabled, and safer public roads.  Perhaps college students, disabled persons, hospitals, district attorneys, and sheriffs would no longer be “uncertain” about the future of their state funding.  Repealing the death penalty could ultimately lead to a happier, healthier, more prosperous Louisiana.

 

 

* Sarah M. Lambert is a part-time, fourth-year law student at Loyola University New Orleans College of Law and a former member of the Loyola Law Review.  She can be contacted at smlambe2@my.loyno.edu for more information on this topic.

[1] See Baxter Oliphant, Support for death penalty lowest in more than four decades, PEW RESEARCH CTR. (Sep. 29, 2016), www.pewresearch.org/fact-tank/2016/09/29/support-for-death-penalty-lowest-in-more-than-four-decades/.

[2] See Importance of Religion in One’s Life Among Adults in Louisiana, Pew Research Ctr., http://www.pewforum.org/religious-landscape-study/state/louisiana/importance-of-religion-in-ones-life/, (last visited Mar. 3, 2018) (In 2014, 71% of adults in Louisiana listed religion as “very important”).

[3] See Religious Landscape Study: Adults in Louisiana, Pew Research Ctr., http://www.pewforum.org/religious-landscape-study/state/louisiana/, (last visited Mar. 3, 2018).

[4] See Religious Landscape Study: Catholics—Catholics by State, Table, Pew Research Ctr., http://www.pewforum.org/religious-landscape-study/religious-tradition/catholic/, (last visited Mar. 3, 2018) (data reflects information collected in 2014).

[5] See id.

[6] See Louisiana House of Representatives, Archived Video (May 17, 2017), http://house.louisiana.gov/H_Video/VideoArchivePlayer.aspx?v=house/2017/may/0517_17_CJ; see also Louisiana State Senate Broadcast Archives, Channel 84.1 Senate Committee Room F, http://senate.la.gov/video/videoarchive.asp?v=senate/2017/04/042517JUDC_0.

[7] See Pope Francis: No matter what the crime, ‘the death penalty is inadmissible’, Catholic News Agency

(Mar. 20, 2015), https://www.catholicnewsagency.com/news/pope-francis-no-matter-what-the-crime-the-death-penalty-is-inadmissible-89127.

[8] Id.

[9] See Exonerations by State, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx (last visited Mar. 3, 2018).

[10] See generally Frank R. Baumgartner & Tim Lyman, Louisiana Death-Sentenced Cases and their Reversals, 1976-2015, S.U. J. Race Gender & Poverty, Vol. 7, 2016 (April 26, 2016)

available at https://www.unc.edu/~fbaum/articles/JRGP-DeathRowReversals-2016.pdf.

[11] See Julia O’Donoghue, Louisiana Legislature Adjourns Special Session Early, Doing Nothing to Fix Budget Crisis, Times-Picayune (Mar. 5, 2018).

[12] Id.

[13] See Kelly Phillips Erb, Death and Taxes: The Real Cost of the Death Penalty, Forbes (Sept. 22, 2011), https://www.forbes.com/sites/kellyphillipserb/2011/09/22/death-and-taxes-the-real-cost-of-the-death-penalty/#32934d2d673e.

[14] See  U.S.A. Executions – 1977-Present, Louisiana, DeathPenaltyUSA, http://deathpenaltyusa.org/usa/state/louisiana.htm, (last visited Mar. 3, 2018) (showing Louisiana has only executed four people in the past 20 years).

[15] See Radley Balko, How a Fired Prosecutor Became the Most Powerful Law Enforcement Official in Louisiana, Wash. Post (Nov. 2, 2017), https://www.washingtonpost.com/news/the-watch/wp/2017/11/02/how-a-fired-prosecutor-became-the-most-powerful-law-enforcement-official-in-louisiana/?utm_term=.1a231558058a.

[16] Interview with G. Ben Cohen, The Promise of Justice Initiative, (Mar. 3, 2018).

[17] See NEW VOICES: Republican Senator Says Kansas Death Penalty “Too Costly,” Death Penalty Info. Ctr., https://deathpenaltyinfo.org/new-voices-republican-senator-says-kansas-death-penalty-too-costly, (last visited Mar. 3, 2018).

[18] See Causes of Wrongful Convictions, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/causes-wrongful-convictions, (last visited Mar. 3, 2018).

[19] Prosecutors have the authority to decide who to charge with a crime, what crime to charge them with, what evidence should be disclosed, how investigatory resources should be used, if a plea bargain should be made, if the defendant should go to trial, how to proceed at trial, and what sentence should be recommended (including one of life or death). See, e.g., Michelle Ghetti & Paul Killebrew, With Impunity: The Lack of Accountability of A Criminal Prosecutor, 13 Loy. J. Pub. Int. L. 349 (2012); see also See Radley Balko, The Untouchables: America’s Misbehaving Prosecutors, And The System That Protects Them, Huffington Post (Aug. 1, 2013), https://www.huffingtonpost.com/2013/08/01/prosecutorial-misconduct-new-orleans-louisiana_n_3529891.html (updated Dec. 6, 2017).

[20] See Ghetti & Killebrew, supra note 19 at 377–89 (appendices listing Louisiana cases where prosecutorial misconduct was found to have occurred).

[21] See U.S. Supreme Court Grants New Trial to Louisiana Death Row Inmate, Death Penalty Info. Ctr. (reporting that official misconduct was present in all 10 death row exonerees’ cases—prior to Rodricus Crawford’s exoneration); see also Rodricus Crawford, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5123, (last visited Mar. 3, 2018). (reporting that official misconduct was a contributing factor in Rodricus Crawford’s case).

[22] See generally In re Jordan, 2004-2397 (La. 6/29/05), 913 So. 2d 775.

[23] Id. at 784.

[24] See generally In re Seastrunk, 2017-0178 (La. 10/18/17).

[25] See America’s Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty, Fair Punishment Project (June 2016), available at http://fairpunishment.org/wp-content/uploads/2016/06/FPP-Top5Report_FINAL.pdf.

[26] See Zach Beaird, Dale Cox Brings Bad Press to Caddo, Shreveport Times (July 15, 2015), https://www.shreveporttimes.com/story/news/local/2015/07/15/dale-cox-brings-bad-press-caddo/30223399/.

[27] See Vickie Welborn, UPDATED: ADA on Death Penalty: ‘We need to kill more people’, Shreveport Times (Mar. 27, 2015), https://www.shreveporttimes.com/story/news/local/2015/03/27/glenn-ford-dale-cox-charles-scott-caddo-parish-death-penalty-execution-marty-stroud/70529188/.

[28] See Zack Beaird, supra note 26.

[29] See Radley Balko, The Untouchables, supra note 19.

[30] Id.

[31] See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting); see also Tucker v. Louisiana, 136 S.Ct. 1801, 195 reh’g denied, 137 S. Ct. 16, 195 L. Ed. 2d 888 (2016) (Breyer, J., dissenting from the denial of certiorari).

[32] See generally Baumgartner & Lyman, supra note 10.

[33] See id. at 69–70.

[34] Id.

THUMBS DOWN: THE TROUBLE WITH COMPELLED FINGER PRINT ACCESS TO SMART DEVICES

Author: Reagan Charleston

I. INTRODUCTION

Smart devices have become an extension of ourselves.  Take a walk, sit in the park, ride the subway, go to a restaurant, look around you while you sit in traffic; you will likely find that nearly everyone walks, sits, and drives with their phone in their hand.  Your smartphone likely sits near you as you read this piece.  Even our sleep is effected by our smart phone use.[1]  Today, hand injuries from excessive cell phone use have become commonplace.[2]  We are fixated on our phones, and we do not “unplug” when we get home.[3]  According to a 2014 Civic Science report, the average American spends over twelve hours a day engaged in smart phone use.[4]  We know what it means for our eyes, but what does it mean for our constitutional rights?[5]

In a unanimous decision, the Supreme Court held that cell phones were constitutionally protected from unreasonable search and seizure because they are a “pervasive and insistent part of daily life,”[6] such that, as Chief Justice Roberts noted, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”[7]  Despite this decisive holding, many lower courts have held that there are few, if any, constitutional barriers to law enforcement officials’ ability to compel access to the contents of an individual’s smart phone.  Technological advancements, now readily available to the public in the form of biometric authentication on smart devices,[8] have turned a convenience and novelty into what may be a degradation of fundamental constitutional rights.[9]  As it stands, in certain jurisdictions, numeric or alphabetical passcodes are protected by the Fifth Amendment, while biometric authentication in the form of fingerprint passcodes are not.[10]  Therefore, in these jurisdictions, law enforcement officers may compel an individual to unlock a device that is protected by a fingerprint or thumbprint passcode entry, but not a device that utilizes only a standard numeric or alphabetical passcode.[11]

Additionally, courts have reached different conclusions on whether police officers may compel a suspect to unlock a device by forcibly entering the suspect’s fingerprint pursuant to a warrant that does not name a specific individual.[12]  Before his death, Justice Scalia predicted that the Supreme Court would soon have to decide whether digital data itself is an “effect” under the Fourth Amendment.[13]  This Comment argues that mobile devices and the information contained within are precisely the effects as pondered and articulated by the drafters of the Constitution, and any searches thereof should be based on probable cause and sufficiently particularized in a valid warrant, approved by a detached, neutral magistrate, absent exigent circumstances.[14]  Thus, in contemplation of fundamental Fourth Amendment rights, merely being present at a premise where there is suspected criminal activity should not thus subject an individual to search and possibly seizure of his mobile device.  Further, biometric access should receive the same protections as a numeric or alphabetical passcode under the Fifth Amendment, and an individual should not be compelled to produce his fingerprint because doing so would violate rights guaranteed by the Fifth Amendment.[15]  This line of decisions misapplies Fourth and Fifth Amendment doctrine by improperly applying dated jurisprudence and law regarding the fingerprint, and further, that proper recognition of these important protections is needed to prevent unbridled and arbitrary government access to the smart devices with which we are intimately connected.

Part II provides an overview of the Fourth and Fifth Amendments and how these amendments have functioned in the context of mobile devices.  Part III analyzes the doctrinal history of the fingerprint in light of Fourth and Fifth Amendment jurisprudence.  Part IV proposes a standard for entry of biometric passwords consistent with Supreme Court precedent regarding mobile devices.  Finally, Part V considers the risks created as a result of the Court failing to take action.

II. THE FOURTH AND FIFTH AMENDMENTS: BACKGROUND IN THE CONTEXT OF SMART DEVICES

In 2014, the Supreme Court helped to clarify what sort of ties our smartphones have to our constitutional guarantees.[16]  In articulating the constitutional protections afforded to cellular devices, the Court looked back to an 1886 Supreme Court decision regarding the rights afforded by the Fourth and Fifth Amendments.[17]  Chief Justice Roberts declared:

Modern cell phones are not just another technological convenience.  With all they contain and all they may reveal, they hold for many Americans “the privacies of life.”  The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.  Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.[18]

In Riley v. California, the Court held that cell phones are subjected to a higher Fourth Amendment protection that requires a police officer to obtain a warrant before searching its digital contents.[19]  However, despite the Riley decision, divergent decisions have followed in response to novel issues prompted by the emergence of new smartphone technology, leaving insecure the reverence Riley delivered to our smartphones.  After Riley, compelled access to smartphones has been challenged on Fourth and Fifth Amendment grounds, with mixed success.

The following section presents brief background of Fourth and Fifth Amendment doctrine, as well as recent law in the context of personal digital devices.

A. Fourth Amendment Doctrine

The Fourth Amendment protects citizens from unreasonable searches and seizures by requiring that any and all warrants be issued pursuant to probable cause and must sufficiently particularize the persons or things to be searched or seized.[20]  The particularity requirement protects against broad, exploratory searches.[21]  Accordingly, in Ybarra v. Illinois, the Supreme Court found that under the Fourth Amendment, “it follows that a warrant to search a place cannot normally be construed to authorize a search of each individual in that place.”[22]   Specifically, the Court held as follows:

A search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.[23]

Further, if the warrant gives the officer discretion over the person searched and what is seized, the warrant fails for overbreadth—although the Court has acknowledged that there are some exceptions to this rule.[24]

As to smartphones, the Supreme Court held in Riley v. California that the Fourth Amendment requires a warrant in order to search the contents of a cellular phone.[25]  Chief Justice Roberts asserted in Riley that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”[26]  In Riley, the Court expounded upon the intrusiveness on the search of an individual’s cellphone due to the gross amount of personal information contained therein.[27]  Therefore, the Constitution requires that searches of cell phones be executed pursuant to a valid warrant that is supported by probable cause and sufficiently particular as to the persons and items being searched.[28]

B. Fifth Amendment Doctrine

The Fifth Amendment to the United States Constitution states that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]”[29]  Specifically, the privilege against self-incrimination protects a person only from communications that are deemed to be testimonial in nature.[30]  In Doe v. United States, the Supreme Court defined “testimonial communications” as any act or oral or written statement “that explicitly or implicitly, relate[s] a factual assertion or disclose[s] information” to the government.[31]  Specifically, the privilege is invoked when the information garnered from the act or statement is the product of the individual’s own thoughts, such that it can be considered the “contents of his own mind.”[32]  In addition to proving that the information produced was testimonial in nature, the party asserting the privilege must also prove that the information was coerced and incriminating.[33]  The privilege is not extended to acts or statements, whether oral or written, when the only information disclosed to the government is merely a physical fact.[34]  However, even where the compelled production is found to be testimonial in nature, it may still be outside the scope of the Fifth Amendment’s self-incrimination privilege if the Foregone Conclusion Doctrine applies.[35]

The Foregone Conclusion Doctrine applies where the State has independently established the “existence, possession, and authenticity” of the information, such that the testimony of the individual adds “little or nothing to the sum total of the government’s information,” and as a result, the compelled testimony is nothing more than a foregone conclusion.[36]  Therefore, “in order for the foregone conclusion doctrine to apply, the State must show with reasonable particularity that, at the time it sought the act of production, it already knew the evidence sought existed, the evidence was in the possession of the accused, and the evidence was authentic.[37]  For example, where a defendant taxpayer attempted to invoke his Fifth Amendment self-incrimination privilege, the Supreme Court held that because the government independently knew of the existence of incriminating tax-returns and the defendant’s knowledge thereof, the defendant’s constitutional right to abstain from self-incrimination had not been infringed upon.[38]

Thus, where any compelled statements or acts that may incriminate an individual or unveil incriminating evidence that has been independently verified by the government such that the evidence does not add to the government’s knowledge of criminal activity, the foregone conclusion doctrine applies and an individual is not shielded by Fifth Amendment immunity from self-incrimination.[39]

With the recent advent of security features on mobile devices, the smart phone has become a topic associated with Fifth Amendment rights.[40]  Scholars and courts alike have noted that the compelled production of a smart phone security code violates the Fifth Amendment self-incrimination clause.[41]  In Commonwealth v. Baust, where a defendant was under investigation for video voyeurism, the court held that a defendant could not be compelled to enter the numeric passcode to his phone pursuant to a demand by law enforcement.[42]  However, that court also held that an individual could still be compelled to unlock his device using touch identification because

the fingerprint like a key, however, does not require the witness to divulge anything through his mental processes. On the contrary, like physical characteristics that are non-testimonial, the fingerprint of Defendant if used to access his phone is likewise non-testimonial and does not require Defendant to “communicate any knowledge” at all. Unlike the production of physical characteristic evidence, such as a fingerprint, the production of a password forces the Defendant to “disclose the contents of his own mind.[43]

Likewise, in State v. Stahl, the court granted a petition for a writ of certiorari and quashed an order following a trial court’s denial of the State’s motion to compel the production of the defendant’s passcode to unlock his iPhone.[44]  The court declared that it saw no distinction between a numeric or alphabetical passcode and a touch identification passcode.[45]  The court asserted that neither manual passcode nor fingerprint passcode should receive Fifth Amendment protection.[46]  Specifically, the court asserted that compelling an individual to provide access to a source that may contain incriminating information does not offend the privilege provided by the Fifth Amendment self-incrimination clause.[47]  Additionally, the court held that the government met its burden of proof and showed with reasonable particularity that the incriminating evidence was on the device, thereby sufficiently invoking the foregone conclusion doctrine.[48]

Not all courts have followed this rationale, however.  In response to a similar motion to compel a passcode, a Maine court denied the motion and held that compelling a defendant to unlock his smartphone by providing the passcode or opening it himself would require the defendant to divulge the contents of his mind and “would violate his privilege against self-incrimination protected by the Federal and Maine Constitutions.”[49]  Outside the context of cellular devices, other courts have also held that providing a password to an electronic device is indeed testimonial because an individual acknowledges control via his knowledge of the password and subsequently his control and knowledge of the underlying computer files.[50]  Clearly, the inconsistencies involving Fourth and Fifth Amendment protections and passcode-protected devices require guidance and resolution to provide courts with clarity.

III. FINGERPRINTING UNDER THE FOURTH AND FIFTH AMENDMENT: UNCONTROVERSIAL IN THE HISTORICAL SENS

In review of the aforementioned inconsistencies surrounding a smart phone and the constitutional protections afforded to the device and its user, the fingerprint is a common subject.  Fingerprint doctrine, while historically uncontroversial in either the Fourth or Fifth Amendment context, is in unchartered territory in the face of readily available biometric security features.  Upon review of the seminal cases, it is difficult to reconcile the historical context of fingerprinting with the technological features currently available to, and used by, society at large.

A. The Fourth Amendment and the Fingerprint

Unlike smartphones and mobile devices, fingerprints are associated with nearly a century of constitutional history.  Courts have long held that fingerprinting is permissible under the Fourth Amendment.[51]  By the middle of the Twentieth Century, fingerprinting had become part of routine booking procedure practiced by law enforcement agents.[52]  Fingerprinting as a practice is completely uncontroversial under the Fourth Amendment; however, in order for fingerprinting to remain non-violative of the Fourth Amendment, it must adhere to the quality that made it such—namely,  that it be part of a routine procedure.[53]  The routine practice of fingerprinting began in the early twentieth century when it became apparent that the Bertillon measurement method (the Nineteenth Century practice of indexing and cataloging criminal suspects’ biometric dimensions, such as the circumference of the head or the length of the middle finger, for purposes of identification)[54] was an insufficient and unreliable way to document and trace the identifications of criminals.[55]  In United States v. Kelly, Judge Augustus Hand explained that fingerprinting did not violate the Fourth Amendment because it had become the most prevalent form of identifying a person due to its certainty and reliability.[56]

Fingerprinting has administrative roots; it has historically been used in identifying an arrested person.[57]  However, with the advent of database technology, purely administrative purposes have expanded to include the use of fingerprinting as a tool to crack unsolved cases.[58]  Despite technological advances that have rendered fingerprinting a more valuable asset than merely as a tool for identifying arrested persons, fingerprinting has remained virtually uncontroversial for several reasons.  First, fingerprinting is essential to identifying not only who an arrestee is, but also what sort of criminal background he may have.[59]  Second, fingerprinting is a non-intrusive measure.[60]  Finally, the information that could be gained from the analysis of a fingerprint has been, until very recently, limited to one feature only—identification.[61]  In Mississippi v. Davis, the Supreme Court articulated that the Fourth Amendment did not prohibit fingerprinting during detentions that were not supported by probable cause because

Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.[62]

Despite the Supreme Court’s acknowledgement of technological advances such as touch identification and biometric security that have effectually made the fingerprint a tool to access all of the intricacies of a citizen’s private life, fingerprinting still remains a constitutionally approved tool.  Furthermore, even though technology has given rise to methods more reliable and preferable than fingerprinting for identification and criminal investigation, courts today still employ the same analysis used for over a century.[63]  Without a doubt, those very courts that first articulated the constitutional permissibility and value of fingerprinting could not have imagined a day where it could be possible that every personal detail of an individual’s life—his communications, contacts, fancies, medical history, financial information, most frequently visited locations, etc.—could be accessed by a fingerprint.  Technological advancements demand legislative and doctrinal attention.

B. Fingerprinting and the Fifth Amendment

Likewise, fingerprints have not received Fifth Amendment protection because they are considered purely physical.[64]  Courts have held that the compelled production of the fingerprint discloses only a physical characteristic, and such a compelled production of physical evidence does not equate to testimony for Fifth Amendment purposes.[65]  The rationale follows a 1910 opinion by Justice Holmes regarding a case wherein the petitioner asserted that his Fifth Amendment privilege against self-incrimination had been violated when he was compelled to model a blouse during his trial for murder.[66]  In Holt v. United States, Justice Holmes famously called this an “extravagant extension of the 5th Amendment,” and rejected the petitioner’s complaint.[67]  Justice Holmes held that the privilege only pertained to extorted “communications,” and did not extend to the government’s compelled use of the petitioner’s body as evidence where it was material.[68]  Despite the enormous technological and societal changes since the decision over a century ago, Justice Holmes’s Holt communicative versus physical testimony distinction still dominates self-incrimination analysis in the century following the holding.[69]  As a result, this legal standard has recently been called into question.[70]

C. Once Uncontroversial, Now Uncertain

In what was called an unprecedented move, the Department of Justice sought a warrant authorizing permission to force any individual present at the subject’s premise to provide his fingerprint or thumbprint to access his smart phone device.[71]  The memorandum in support of the application, which was subsequently approved by the Central District of California, stated:

While the government does not know ahead of time the identity of every digital device or fingerprint (or indeed, every other piece of evidence) that it will find in the search, it has demonstrated probable cause that evidence may exist at the search location, and needs the ability to gain access to search them.[72]

In support of this request, the government asserted that such a search did not violate either the Fourth or Fifth Amendment.[73]  Specifically, the memorandum stated that the Fourth Amendment does not prohibit the taking of fingerprints where the taking is supported by reasonable suspicion,[74] and compelling a person to provide his fingerprint does not violate the Fifth Amendment because a fingerprint supplies no testimonial information.[75]  According to the Central District of California, an individual can arm himself with all of the heightened encryption and security available on his device, but at the end of the day, biometric security features may actually make it easier for law enforcement agents to obtain access—whether the individual is directly suspected of a crime or merely present at a location to be searched pursuant to a warrant.

A similar warrant application was presented to the Northern District of Illinois Eastern Division court, wherein the government sought “the authority to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints ‘onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device.’”[76]  However, unlike the constitutional interpretation employed by the Virginia Circuit in Baust and the warrant application in the Central District of California Courts, Northern District of Illinois Magistrate Judge M. David Weisman denied the warrant application for the compelled fingerprint access request.[77]  Judge Weisman found that the warrant application failed because it did not establish probable cause for such an overly broad and insufficiently particularized request under the narrowly construed Fourth Amendment, and because the compelled fingerprint unlocking of a biometrically protected smart device violates the Fifth Amendment guarantee to be free from self-incrimination.[78]

In light of these diametric points of view, there must be some resolution to guide citizens, law enforcement, and the lower courts.

IV. PROPOSAL

It is generally known, and begrudgingly accepted, that the law lags behind the times, especially with regards to technology.  While patience is usually appropriate, here, action is required.  The special and unique challenges presented by smart devices are pressing and require a swift update.

A. Fourth Amendment Protections Against Unreasonable Searches of Cell Phones Must Be Fortified

Riley held that cell phones deserved more constitutional protection because of their pervasiveness and association with the intimacies of citizens’ private lives and that the searches thereof must be pursuant to a warrant which is sufficiently particularized.[79]  Courts must consider Riley when they reconcile modern day technological advances with traditional doctrinal theory.  As noted by Judge Weisman in his order denying the warrant application, “the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment.”[80]  Because we live and interact in a digital and virtual realm, the law must evolve and address these changes, especially where great amounts of information are portable and accessible by the touch of a finger.

B. The Fifth Amendment Testimonial Distinction Articulated in Holt Is Outdated and the Standard Must Be Re-Evaluated

Current law is unclear on whether compelled smartphone access is testimonial and what exactly constitutes a foregone conclusion sufficient to override the testimonial privilege.[81]  The 2014 Baust decision held that a numeric or alphabetical passcode is sufficiently communicative and therefore testimonial under the Fifth Amendment.[82]  However, applying the physical characteristic distinction delineated in Holt[83] and United States v. Wade[84], the Court held that compelled biometric fingerprint (touch identification) access does not force the individual to disclose or divulge the contents of his mind and is thus non-testimonial and beyond the reach of the Fifth Amendment.[85]  Like Holt, the Wade decision was made many decades before the advent of biometric security and should not guide modern court decisions.[86]  Neither Court could have comprehended the enormous technological advances that would occur by leaps and bounds in the years to come.  Therefore, applying Wade in the wake of great technological advances is improper.  It is a common scholarly complaint that the law lags behind technology.[87]  Despite this, courts should take note that scholars are not merely complaining but are expressing important concerns regarding advanced technology and the erosion of constitutional protections.[88]

C. A Solution: Biometric Self-Authentication Should Be Considered in Its Own Special Context

The Stahl court was correct in asserting that numeric and alphabetic passcodes should indeed be considered exactly the same as fingerprint biometric access.[89]  However, in declaring that neither variety of authentication is testimonial in nature, the court veered off course.  Similarly, the Baust court considered self-authentication in the context of early and mid-twentieth century jurisprudence.[90]  This line of analysis sets forth a troubling precedent and opens the door to an erosion of fundamental Fourth and Fifth Amendment protections.  It is clear that the fingerprint can no longer be viewed merely as a physical characteristic as articulated in Holt and Wade.  The fingerprint is unlike a voice exemplar or a writing sample.  It does not merely identify an individual but provides access to all of the details of an individual’s personal life—precisely the opposite of why the Supreme Court has held that fingerprinting is a reasonable and permissible practice under the Fourth Amendment.[91]  Therefore, it must first be established that providing a passcode in any form to unlock a digital or electronic personal device may be testimonial in nature.  Second, fingerprints must be viewed as having the capability of providing testimonial information such as knowledge and control.  For these reasons, courts and legislators can no longer consider touch identification in the context of dated cases that regard fingerprinting as part of routine booking procedures.  Legislators and courts must recognize that self-authentication in the form of biometric access to mobile devices may be self-incriminating and is therefore protected by the Fifth Amendment.  In sum, biometric authentication of smart phones should be considered standing alone and outside of the context of traditional fingerprint doctrine.

IV. CONCLUSION

How are Americans to know how to secure their smart phones?  And should law-abiding citizens need to worry?  A California warrant’s approval would suggest they should.  Although a Chicago court rejected a similar warrant application, the opinion provided the government with a work-around: namely more specific warrants.[92]  The law must address technological and societal changes to prevent an erosion of our constitutional protections.

Without precise guidance from the Supreme Court, legislators will be left to enact arbitrary laws applying to the search of cellphones and mobile devices.  The United Kingdom and Singapore have enacted legislation to punish those who refuse to unlock their smartphones pursuant to law enforcement order.[93]  Could similar legislation could be on the horizon in the United States? Especially problematic is that legislators will be left guided by outdated jurisprudence.[94]  As mentioned in Part IV, frequently cited jurisprudence is either pre-smart phone or prior to the existence of biometric accessibility features.  Clearly, it is of no question whether a cell phone is itself an “effect,” however, because technology allows individuals to transport large amounts of data and information in pocket-sized devices, the courts must create a legal framework that addresses personal technology and constitutional protections.

The Constitution contemplated privacies as being contained in personal papers and effects, such as diaries, journals, accounts, and the like.  Our Founding Fathers likely never imagined ordinary citizens carrying their effects in their pockets or purses every day, everywhere.  Imagine leaving home every day with your journal, diary, medical history, bank statements, fancies, fantasies, business dealings, and financial stature along for the ride.  It seems absurd, but in fact, that is what nearly every individual who has upgraded from a flip phone is actually doing.  The fact that technology has turned a physical characteristic into a tool to quickly access what would normally be required by the manual entry of a passcode should spurn legislative update.  But, just like the much-maligned iOS updates, legislators are hesitant to update their own operating systems.  The current constitutional questions pertaining to personal mobile devices in the context of Fourth and Fifth Amendment law require a mandated security update for the American operating system.  No longer can American courts hold that fingerprints are merely physical characteristics outside the scope of the Fifth Amendment privilege whereby an individual cannot be a witness against himself.  Courts must properly recognize that the act of self-authentication may be self-incrimination, and authorization by the use of a fingerprint may as a result be testimonial in nature.  By utilizing the biometric fingerprint access, an individual admits control, and may thereby incriminate himself by making an admission of a connection to or knowledge of any incriminating evidence on the device.

In closing, this Comment suggests that the Court look to traditional notions of Fourth Amendment protection in regard to search warrant applications in the mobile device context, and also asserts that the Court must re-evaluate the physical distinction in determining whether an act is a testimonial communication in this digital age.

 

FOOTNOTES

        [1].  See Shana Lebowitz, Why You Shouldn’t Check Your Smartphone Before You Go to Bed, Business Insider (March 16, 2016), http://www.businessinsider.com/
dont-check-your-smartphone-before-bed-2016-3.

        [2].  A. Pawlowski, Is Your Smartphone a Pain? How to Prevent It From Causing Your Hands to Suffer, Today (March 29, 2015), http://www.today.com/health/
smartphone-use-can-lead-hand-pain-t23161.

        [3].  See Steve Petrow, Desire to Unplug Resonates in New Year, USA Today (Jan. 11, 2015), http://www.usatoday.com/story/news/nation/2015/01/10/digital-detox/2135
5829/.

        [4].  Id.

        [5].  See Smartphone Overuse May ‘Damage Eyes’ Say Opticians, BBC (March 28, 2014), http://www.bbc.co.uk/newsbeat/article/26780069/smartphone-overuse-may-damage-eyes-say-opticians.

        [6].  Riley v. California, 134 S. Ct. 2473, 2484 (2014).

        [7].  Id.

        [8].  “Biometric verification is any means by which a person can be uniquely identified by evaluating one or more distinguishing biological traits. Unique identifiers include fingerprints, hand geometry, earlobe geometry, retina and iris patterns, voice waves, DNA, and signatures.” Margaret Rouse, Biometric Identification, TechTarget, http://searchsecurity.techtarget.com/definition/
biometrics (last visited Mar. 7, 2018).

        [9].   See Commonwealth v. Baust, 89 Va. Cir. 267, 271 (Va. Cir. Ct. 2014).

      [10].  Id.

      [11].  Commonwealth v. Baust, 89 Va. Cir. 267, 271 (Va. Cir. Ct. 2014).

      [12].  Id.

      [13].  Maureen E. Brady, The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection, 125 Yale L. J. 946, 956 (2016).

      [14].  Id.

      [15].  See Kara Goldman, Note: Biometric Passwords and the Privilege Against Self-Incrimination, 33 Cardozo Arts & Entm’t L. J. 211 (2015).

      [16].  Riley v. California, 134 S. Ct. 2473, 2495 (2014) (quoting Boyd v. United States, 116 U.S. 616, 625 (1886)).

      [17].  See Boyd, 116 U.S. at 637 (“But where the owner of the property has been admitted as a claimant, we cannot see the force of this distinction; nor can we assent to the proposition that the proceeding is not, in effect, a proceeding against the owner of the property, as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture, and it is his property which is sought to be forfeited; and to require such an owner to produce his private books and papers, in order to prove his breach of the laws, and thus to establish the forfeiture of his property, is surely compelling him to furnish evidence against himself.”).

      [18].  Riley, 134 S. Ct. at 2495 (quoting Boyd, 116 U.S. at 630).

      [19].  Id.

      [20].  “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

      [21].  Coolidge v. N.H., 403 U.S. 443, 467 (1979).

      [22].  Ybarra v. Illinois, 100 S. Ct. 238, 342–43 n. 4 (1979) (holding that it was impermissible to search a patron of a tavern pursuant to a warrant authorizing the search of the tavern and its owner).

      [23].  Id. at 342.

      [24].  See United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).

      [25].  Riley v. California, 134 S. Ct. 2473, 2493 (2014).

      [26].  Riley v. California, 134 S. Ct. 2473, 2493 (2014).

      [27].  The Court noted that searching a cell phone discloses the most personal and private intricacies of an individual’s life: photos, videos, e-mails, phone logs, text messages, internet browsing history – which the court noted could reveal an individual’s “private interests or concerns – perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” Id. at 2490. Chief Justice Roberts cautioned against making routine law enforcement officer’s access to this private information, saying, “Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, rather than a container the size of the cigarette package in Robinson.”). Id. at 2489

      [28].  Id. at 2495; United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).

      [29].  U.S. Const. amend. IV.

      [30].  Doe v. United States, 487 U.S. 201, 210 (1988).

      [31].  Id.

      [32].  Id. at 211 (quoting Curcio v. United States, 354 U.S. 118, 128 (1957)).

      [33].  Fisher v. United States, 425 U.S. 391, 410 (1976); In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1341 (11th Cir. 2012).

      [34].  Examples of compelled acts that fall outside of the Fifth Amendment self-incrimination privilege include: providing a blood sample, handwriting sample, or voice sample; standing in a police line-up; and trying on an item of clothing. In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1345, 1345 n. 24 (11th Cir. 2012).

      [35].  State v. Stahl, 206 So. 3d 124 (Fla. Dist. Ct. App. 2016).

      [36].  Id. at 135.

      [37].  Id. (citing In re Grand Jury Subpoena, 670 F.3d at 1344).

      [38].  Specifically, the Court stated, “The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons ‘no constitutional rights are touched.’ The question is not of testimony but of surrender.” Fisher v. United States, 425 U.S. 391, 410–11 (1976).

      [39].  Fisher v. United States, 425 U.S. 391, 411 (1976).

      [40].  Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from a Search Incident to Arrest?, 96 Iowa L. Rev. 1125, 1171 (2011) (“Courts have repeatedly held that producing tangible evidence . . . can be testimonial even in the absence of any verbal language. This is because producing such tangible evidence demonstrates the existence, control, and location of those items, which amounts to testimony. In the cell-phone context, this is significant because clever police officers could attempt to avoid a Fifth Amendment problem by demanding that an arrestee either provide a written copy of his password or simply enter the password himself without the officer seeing it. Indeed, in one of only two cases addressing the compulsion of computer passwords, prosecutors offered to have the individual enter his password without any onlookers, so that he would not have to make a testimonial statement in violation of the Fifth Amendment. The magistrate assigned to the case refused to accept this option, explaining that even entering the password privately would be testimonial because it would demonstrate knowledge of the password and access to the underlying computer files.”).

      [41].  Id.; State v. Trant, No. 15-2389, 2015 LEXIS 272, at *11 (Me. 2015) (“The court finds that the foregone conclusion exception does not apply in these circumstances, and accordingly finds that compelling Defendant to divulge the contents of his mind—either by compelling him to surrender the passcodes or compelling him to himself open the phones—would violate his privilege against self-incrimination protected by the Federal and Maine Constitutions.”).

      [42].   Commonwealth v. Baust, 89 Va. Cir. 267, 271 (Va. Cir. Ct. 2014) (“[C]ompelling Defendant to provide access through his passcode is both compelled and testimonial and therefore protected. Contrary to the Commonwealth’s assertion, the password is not a foregone conclusion because it is not known outside of Defendant’s mind. Unlike a document or tangible thing, such as an unencrypted copy of the footage itself, if the password was a foregone conclusion, the Commonwealth would not need to compel Defendant to produce it because they would already know it.”).

      [43].  Commonwealth v. Baust, 89 Va. Cir. 267, 270 (Va. Cir. Ct. 2014).

      [44].  State v. Stahl, 206 So. 3d 124, 136–37 (Fla. Dist. Ct. App. 2016).

      [45].  Id. at 135.

      [46].  Id.

      [47].  Id.

      [48].  Id. at 135–36.

      [49].  State v. Trant, No. 15-2389, 2015 LEXIS 272, at *11 (Me. 2015).

      [50].  In re Grand Jury Subpoena (Boucher), 2009 U.S. Dist. LEXIS 13006, at *9 (D. Vt. 2009).

      [51].  See United States v. Kelly, 55 F.2d 67, 68 (2d Cir. 1932) (“We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely known and frequently practiced.”).

      [52].  Maryland v. King, 133 S. Ct. 1958, 1976 (2013).

      [53].  United States v. Guevara-Martinez, 262 F.3d 751, 756 (8th Cir. 2001).

      [54].  Alexander T. Nguyen, Article: Here’s Looking at You, Kid: Has Face-Recognition Technology Completely Outflanked the Fourth Amendment?, 7 Va. J.L. & Tech. 2 (2002).

      [55].  Cory Preston, Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475, 486 (2010) (“The only serious alternative to fingerprinting for criminal identification was the Bertillon method, which had proven both administratively and scientifically suspect.”).

      [56].  United States v. Kelly, 55 F.2d 67, 69 (C.A.2 1932) (“Fingerprinting seems to be no more than an extension of methods of identification long used in dealing with persons under arrest for real or supposed violations of the criminal laws.  It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.”).

      [57].  Preston, supra note 55.

      [58].  Id. (“Admittedly, the value of routine fingerprinting as a tool for seeking “cold hits” with unsolved cases has expanded with law enforcement’s ability to cross-reference and search enormous databases.”).

      [59].  Maryland v. King, 133 S. Ct. 1958, 1971 (2013) (“A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.  It is a common occurrence that ‘people detained for minor offenses can turn out to be the most devious and dangerous criminals.’”).

      [60].  See Maryland v. King, 133 S. Ct. at 1976; Davis v. Mississippi, 394 U.S. 721, 727 (1969) (stating that detentions for fingerprinting are less intrusive because the fingerprinting does not involve probing into an individual’s private life or thoughts.).

      [61].  Preston, supra note 55, at 490-91 (“The genius of fingerprinting for identification purposes, according to forensic expert Simon Cole, is that fingerprints have proven over time to offer no valuable or personal information beyond the mere identity of the individual they belong to. Despite substantial research seeking to prove a hereditary or racial link to fingerprints, no such link has been found. This lack of depth in fingerprint evidence, Cole argues, has been essential to its staying power as strong evidence of identification, in that fingerprint experts asked to testify at criminal trial are not influenced by traits that may indicate a particular type of suspect.”).

      [62].  Davis v. Mississippi, 394 U.S. 721, 727 (1969).

      [63].  See generally Commonwealth v. Baust, 89 Va. Cir. 267, 271 (Va. Cir. Ct. 2014).

      [64].  Schmerber v. California, 384 U.S. 757, 763–64 (1966) (“It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting . . . The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”).

      [65].  Schmerber v. California, 384 U.S. 757, 763–64 (1966).

      [66].  Holt v. United States, 218 U.S. 245, 252 (1910).

      [67].  Id.

      [68].  Id. at 252–53.

      [69].  Goldman, supra note 15, at 218.

      [70].  In re Application for a Search Warrant, 236 F. Supp. 3d 1066, 1073 (N.D. Ill. 2017) (“By using a finger to unlock a phone’s contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.”); Goldman, supra note 14, at 235-36 (“Applying the law to issues of first impression involving modern technology requires flexibility and reinterpretation of precedential case law. Seminal Fifth Amendment case law, including Doe and Hubbell, are illustrative of the Court’s struggle to account for the testimonial qualities of compelled physical actions. However, under the proper circumstances, it is evident that a physical compulsion, such as a signature or even a fingerprint, could maintain the requisite level of testimonial quality deserving of Fifth Amendment protection.”).

      [71].  Thomas Fox-Brewster, Feds Walk Into A Building, Demand Everyone’s Fingerprints To Open Phones, Forbes, https://www.forbes.com/sites/thomas
brewster/2016/10/16/doj-demands-mass-fingerprint-seizure-to-open-iphones/#63b21e 9b1288 (last visited Mar. 11, 2017).

      [72].  Notice of Filing Memorandum of Points and Authorities in Support of Search Warrant Application, Central District of California 1 (2016), https://assets.
documentcloud.org/documents/3143273/Mass-Fingerprint-Case-Redacted-Copy-1.pdf.

      [73].  Id. at 3–5.

      [74].  Id. at 5.

      [75].  Id. at 3.

      [76].  Order and Opinion, In re Application for a Search Warrant, No. 1:17-mc-00081 (N.D. Ill. Feb. 16, 2017), https://assets.documentcloud.org/documents/3472990/
NDIL-Opinion-Rejecting-TouchID-SW-on-4A-amp-5A.pdf.

      [77].  Order and Opinion, supra note 76, at 1

      [78].  Id. at 1-13.

      [79].  Riley v. California, 134 S. Ct. 2473 (2014).

      [80].  Order and Opinion, supra note 76, at 7.

      [81].  Report on Smartphone Encryption and Public Safety: An Update, Manhattan District Attorney’s Office 17 (Nov. 2016), https://assets.documentcloud.
org/documents/3222483/White-Paper-2-0.pdf (“The constitutionality of ordering a person to unlock his device, or to provide a plaintext copy of its contents, is the subject of much debate. Even though the users are not required to give ‘testimony’ in these scenarios, which would be prohibited by the Fifth Amendment, users may still enjoy a Fifth Amendment privilege to refuse to unlock their phones. That is because by complying with the order, a user effectively confirms the existence and authenticity of the records sought.”).

      [82].  Commonwealth v. Baust, 89 Va. Cir. 267, 271 (Va. Cir. Ct. 2014).

      [83]Holt v. United States, 218 U.S. 245, 253 (1910).

      [84].  United States v. Wade, 388 U.S. 218, 222–23 (1967) (“It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial’ nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt.”).

      [85].  Baust, 89 Va. Cir. at 271.

      [86].  Wade, 388 U.S. at 222-23.

      [87].  Lyria Bennett Moses, Recurring Dilemmas: The Law’s Race to Keep Up With Technological Change, 7 U. Ill. J.L. Tech. & Pol’y 239, 241 (2007) (“The tension between law and technology has been observed by multiple authors and is often reflected in metaphors involving competitors in a race with law the inevitable loser. Those using these metaphors are generally concerned about the law’s failure – whether or not they regard it as inevitable – to cope with technological change, especially rapid or accelerating change. Scholars have used metaphors of the law falling behind technology in contexts as diverse as railroads, in vitro fertilization, computers, and the Internet.”).

      [88].  Goldman, supra note 15.

      [89].  State v. Stahl, 206 So. 3d 124, 124 (Fla. Dist. Ct. App. 2016).

      [90].  Id. at 136–37.

      [91].  Riley v. California, 134 S. Ct. 2473, 2490 (2014).

      [92].  Order and Opinion, supra note 76.

      [93].  Report on Smartphone Encryption, supra note 82, at p. 27.

      [94].  Davis v. Mississippi, 394 U.S. 721, 721 (1969).

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