{"id":7499,"date":"2023-10-27T15:24:18","date_gmt":"2023-10-27T15:24:18","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7499"},"modified":"2026-09-22T07:43:30","modified_gmt":"2026-09-22T14:43:30","slug":"unlocking-cellphone-with-fingerprint","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7499","title":{"rendered":"Unlocking Cellphone with Fingerprint"},"content":{"rendered":"

The answer is, \u201cYes<\/strong>.\u201d\u00a0 Because fingerprints and facial ID are not testimonial, there is no recognized privacy interest<\/a> in your fingerprints or in your face.\u00a0 So that’s generally the case.\u00a0 I’m also thinking of mass facial recognition software that you’re putting downtown, and you’re identifying everybody who is downtown.\u00a0 That implicates a different constitutional principle, but that’s not relevant here.<\/p>\n

Can police get a court order to make someone unlock a phone with a fingerprint?<\/h2>\n

So the point is that if you get a court order to basically compel a person to unlock their phone with their fingerprint or facial ID, that would be lawful.\u00a0 That’s not a Miranda violation<\/a>, because it’s not testimonial.\u00a0\u00a0 However, just to get a little more in depth here, having them provide their password, that would be a Miranda issue, because the person has to think about their answer. That’s testimonial, and they could incriminate themselves.<\/p>\n

Now with that one, you’re not going to be able to compel them to provide their password or facial pattern, unless it’s a foregone conclusion.\u00a0 So that’s what the doctrine is called; foregone conclusion.\u00a0 A foregone conclusion essentially says this, \u201cIf you can prove to the court that you know it’s on the phone, so that you need the evidence to bolster your case and to prove your elements, then most likely, they’re going to give you a warrant to basically compel the person to provide their password.<\/p>\n

What counts as a foregone conclusion for a phone password?<\/h2>\n

Now, let me give an example.\u00a0 Let’s say a friend of the defendant saw child porn on his phone, he knows it\u2019s child porn, the defendant was bragging about it, and so forth.\u00a0 So that’s a foregone conclusion.\u00a0 We know that we have the the testimony of the friend and that the evidence is on the phone.\u00a0 So we can most likely get a court order.\u00a0 Basically, I call it a search warrant.\u00a0 But really, it’s a court order, on threat of contempt, to provide the password in order to find the evidence.\u00a0 But that doesn’t necessarily mean that you’re going to have a free for all on that phone.<\/p>\n

The court order is going to allow you into the search bar and will allow you to recover the evidence that is the foregone conclusion. \u00a0But, if there’s other evidence on there, that you don’t know about, you’re not allowed to view it during the lawful search.\u00a0 You’re not going to just go hog wild on the whole phone and find any other evidence.\u00a0 And that’s really the challenge there.<\/p>\n

Is a phone locked with face ID easier to get into than one with a password?<\/h2>\n

So what’s interesting is if defendants use facial ID, then the phone is probably fair game.\u00a0 But if they use a password, then you have to have the foregone conclusion doctrine, usually, in order to get into it.\u00a0 And even then, it’s still a limited search for only things that are foregone.\u00a0 Does that make sense?\u00a0 Kind of weird, right?\u00a0 But that’s highly relevant in today’s digital age.<\/p>\n

There are more cases that are coming out and trying to set some proper boundaries and give the cops the constitutional tools that they need to get the evidence, but also not violate the person’s rights.\u00a0 So we’ll see how this area of the law turns out and develops, but there you go.\u00a0 A good question, and I hope the answer is useful to you.<\/p>\n

Related from Blue to Gold<\/h2>\n