About 6 months ago, I posted about whether a suspect could be compelled to unlock his or her iPhone using Touch ID or whether the suspect could refuse on the basis of the Fifth Amendment privilege against self-incrimination. The answer, according to one federal district court, was that the witness could be compelled to do so because the act of unlocking the phone was not testimonial in nature.
Yesterday, a news report came along posing the question of whether police had acted properly in using the fingers of a dead man to attempt to unlock his phone. The deceased was shot and killed fleeing a police officer who smelled marijuana - according to the report - "wafting" out of his car. While at the funeral home, police attempted to use his fingers to unlock his phone in order to preserve data relevant to the decedent's death, as well as to aid in the investigation into another drug crime. It is not clear from the story if the officers had a warrant to search the phone or not. Nonetheless, they were not successful in unlocking it.
A legal expert interviewed by NBC News framed the question as one under the Fourth Amendment's protection against unreasonable search and seizures. He opined that the decedent had no reasonable expectation of privacy in the phone since he was dead. He left the door open as to whether the decedent's family had such a right. However, in the Sixth Circuit, at least, that door would appear to be closed; an unpublished Sixth Circuit case holds that there is no Fourth Amendment right exists in the deceased body of one's next of kin. See Collins v. Crabbe, 6th Cir. No. 97-6418, 1999 U.S. App. LEXIS 533 (Jan. 12, 1999).
As to the Fifth Amendment privilege against self-incrimination, obviously a dead person cannot invoke the privilege. Moreover, if the information can be obtained from the body of the dead person without that person uttering a word, this would give further support for the idea that being compelled to unlock one's phone via Touch ID is not a testimonial act, and therefore does not implicate the Fifth Amendment privilege.