Under the Constitution, we are given certain rights that cannot be infringed on. One of the most important is the right to not be a witness against yourself. This right comes from the Fifth Amendment and applies to situations where statements are compelled, testimonial, and incriminating. If any evidence obtained by law enforcement violates this amendment, the evidence can potentially be excluded from being used against you at trial.
In Riley v. California, 573 U.S. ____ (2014), the Supreme Court ruled police officers must obtain a warrant to search the digital contents within a phone and they cannot force you to give up your passcode. Giving a passcode is seen as an intrusion into the mind. Because the Constitution protects us from testifying against ourselves, the Supreme Court ruled that a digital passcode is protected under the Fifth Amendment.
But last year, in Virginia v. Baust, No. CR14-1439 (Va. Cir. Ct. October 28, 2014), a Virginia Judge ruled that the police can compel someone to unlock his or her cell phone by using a fingerprint as the passcode. The Judge ruled that the Fifth Amendment does not apply here because it only applies to testimonial statements, not biometric. Because a fingerprint does not cause an “intrusion into the mind” like presenting a numerical passcode, the police in Virginia can now compel its citizens to open their cell phones if the fingerprint option is available.
The Law In Texas
So far, Texas Courts have not yet had to rule on whether police can compel citizens to open their phones through their fingerprints. But because of the Virginia ruling, the possibility exists that Texas could soon follow.
It has long been held that physical evidence usually is not protected under the Fifth Amendment. Whether that is trying on a shirt or glove during a trial. Because the Virginia Court ruled that a fingerprint is not protected under the Fifth Amendment, many of you may be subjected to giving up evidence on your phone to police officers
It is always questionable when a person is forced to give up information to a police officer. One thing I know for sure—if you consent to an officer’s request to search through your phone, it is much more likely the court will consider that a valid search. It is important to immediately contact an attorney if you are arrested, but especially if you think your Fifth Amendment rights have been infringed upon.
As technology continues to advance, police officers continue to find new techniques to get the evidence they need. For an experienced Criminal Defense Lawyer in Fort Worth, Call Stephen Handy today at (817) 284-2262.
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