To anyone who knows me, this won’t be news, but for several years in my career, I practiced alongside a great federal white collar criminal defense attorney (and great friend). One observation I took away from those years is that (alleged) white collar crimes do not occur in a vacuum, and that there is almost always some party seeking to file civil claims against the accused. Well, in our office, when that happened, I and other civil litigators were thrust into those civil matters on behalf of the accused (or an affiliated business). I had to learn the nuances of the Fifth Amendment’s privilege against self-incrimination and how it applied in civil matters – which I did. So, even though I am not a criminal defense lawyer, I do have an interest in the Fifth Amendment privilege against self-incrimination, and that topic will appear in this blog from time to time.
A recent story caught my eye about a case in Chicago involving a new, novel Fifth Amendment issue. Does one have the right under the Fifth Amendment’s privilege against self-incrimination to refuse to unlock one’s iPhone using one’s finger. Put more simply, if you are being investigated and/or arrested, and a law enforcement officer or agent hands you your iPhone and says, “unlock it,” can you refuse under the Fifth Amendment?
There are some threshold questions that must be answered to determine whether the Fifth Amendment privilege against self-incrimination can be invoked, not the least of which is whether one has “reasonable cause to apprehend a real danger of incrimination” from answering a question. In re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983). Another issue that is highly relevant to the iPhone question is that the Fifth Amendment privilege applies only as to evidence that is testimonial in nature - i.e., “when the accused is compelled to make a testimonial communication that is incriminating.” Fisher v. United States, 425 U.S. 391, 408 (1976). The content of documents is not deemed “testimonial” in nature. Butcher v. Bailey, 753 F.2d 465, 468-469 (6th Cir. 1985). However, under certain circumstances, the act of producing the documents may be testimonial if such act functionally admits the existence, possession (by the producing party) or authenticity of the documents. Balt. City Dep't of Social Services v. Bouknight, 493 U.S. 549, 555 (1990); Butcher, 753 F.2d at 468-69 (“Production of documents may be testimonial in any of three ways: by acknowledging that the documents exist; by acknowledging that they are in the control of the person producing them; or by acknowledging that the person producing them believes they are the documents requested and thereby authenticating them.”). However, if the existence, possession, or authenticity of the documents is a foregone conclusion, then the act of production will not be deemed testimonial. Butcher, 753 F.2d at 469. Of course, the distinction between the act of production of incriminating documents being “testimonial” in nature, and content of the documents not being “testimonial” is quite blurry. In the criminal context, don’t expect the accused to get the benefit of the doubt on the question.
As we so often see in cases where courts are adapting to new technologies, the arguments immediately resort to analogy to known technology. According to the AP report of the Chicago iPhone case, the analogy used for unlocking an iPhone was (perhaps unsurprisingly) a safe. Courts permit suspects to refuse to disclose safe lock combinations on Fifth Amendment grounds because doing so amounts to testifying against one’s self. However, requiring suspects to hand over a key to a lock does not raise the same self-incrimination concerns.
The decision in this Chicago case (available at In re Search Warrant Application, 2017 U.S. Dist. LEXIS 169384) fleshes this out a bit (and actually shows that the safe analogy was, to the court at least, barely more than a throw-away line at the end of the analysis). At the outset, the history of this case involved a United States magistrate judge finding that the compelled pressing of the suspect’s fingers against the Touch ID sensor of the phone would violate the Fifth Amendment because it implicitly communicates that the phone (or iPad) is under that person’s possession and control. This reasoning comports with the idea that if the act of producing the document admits possession of the document, it is testimonial in nature.
The magistrate’s ruling was reviewed and reversed by the district judge. The district judge found that the use of fingerprints was no more testimonial than the observation by law enforcement of any physical characteristic of the suspect – i.e., no different than providing a blood sample, a voice exemplar, a handwriting exemplar, or (of course) fingerprints. Significantly, the court noted that it is the government agents that would be picking the fingers to press against the Touch ID, and therefore, the suspect would not be expressing anything about whether the chosen finger does or does not unlock the phone. This is how the court distinguished the issue before it from the act of producing documents, explaining that the act of receiving a subpoena and producing documents in response reflects the thoughts of the subpoena recipient in determining which documents are responsive to the subpoena. If the suspect was going to be required to identify the correct finger for unlocking the phone, perhaps he could refuse by asserting his Fifth Amendment privilege against self-incrimination.
Two final notes here:
One, this decision does not implicate the same issues decided by the United States Supreme Court in Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), in which the Supreme Court held that, generally speaking, law enforcement must obtain a warrant to search a smart phone. In In re Search Warrant Application, a search warrant had been issued for the content of the iPhones and iPads suspected to be at a residence, and that probable cause determination was not challenged.
Second, telling of how close a call this was and how unsettled the law is, the district judge recommended that the government use a “screen team” to review the contents of the devices to guard against tainting the investigation if his decision was appealed and overruled. I've read a lot of opinions and decisions in nearly 20 combined years of practicing law, and before that, working as a law clerk doing research. I've never seen a judge hedge his bets like that.