Unlocking Fifth Amendment Considerations in State v. Diamond

UNLOCKING FIFTH AMENDMENT CONSIDERATIONS IN STATE V. DIAMOND: WHY REMOVING THE FINGERPRINT PASSWORD CAPABILITY ON YOUR CELL PHONE IS IN YOUR BEST INTEREST

By: Jordan Dritz, Volume 102 Staff Member

In the age of smart phones, people regularly protect content on their devices through passcodes. Modern cellphones often offer the option of a fingerprint password in lieu of a numerical passcode. The newest iPhone X even allows users to unlock their cellular devices though face recognition technology.[1] When using traditional numeric or alphanumeric passwords, the state cannot compel divulgence of the password to access content on the device—even if the state has a warrant to access the information.[2] If someone has a fingerprint password, however, the results change dramatically. On January 17, 2018, the Minnesota Supreme Court ruled in State v. Diamond that the Fifth Amendment privilege against self-incrimination does not protect a person from being ordered to provide a fingerprint to unlock a seized cellphone because the compelled act is not a testimonial communication.[3] This ruling is significant because Minnesota is the first state supreme court to address this issue. What does this mean for Minnesotans? The answer is quite simple: they should remove the fingerprint password capability on their cellphones to protect the content within.

The Fifth Amendment of the United States provides that no person “shall be compelled in any criminal case to be a witness against himself.”[4] Colloquially known as the right against self-incrimination, the Fifth Amendment protects people from being compelled to provide testimony revealing the contents of their minds.[5]

The Supreme Court has held that certain acts, while incriminating, are not within the Fifth Amendment privilege: “[A] suspect may be compelled to furnish a blood sample; to provide a handwriting exemplar, or a voice exemplar; to stand in a lineup; and to wear particular clothing.”[6] The Supreme Court drew a distinction between the aforementioned nontestimonial acts of producing the body as evidence and testimonial acts of producing documents as evidence: “to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.”[7]

The Minnesota court’s opinion in State v. Diamond is unique because providing a fingerprint to unlock a cellphone does not fit neatly into either category of the Supreme Court’s distinction between the testimonial act of producing documents as evidence and the nontestimonial act of producing the body as evidence.[8] The issue in Diamond encompassed both producing a fingerprint (act of the body) and producing documents (the contents of the cellphone).[9] However, the court’s decision hinged on the proposition that providing a fingerprint elicits only physical evidence from a defendant’s body and does not reveal the contents of his mind. Therefore, the majority reasoned that the action is nontestimonial in nature and is not a violation of the Fifth Amendment.[10] This decision affirmed a court of appeals ruling, which emphasized that the district court did not compel the appellant to disclose whether a fingerprint would unlock his phone or which finger would unlock the phone, and therefore no testimonial action occurred.[11]

While this ruling represents the first time a state supreme court has considered the issue, lower courts in other states have ruled in line with the Minnesota court. In a Virginia circuit court case considering compelling fingerprints to unlock a cellphone, the court noted:

[t]he 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 nontestimonial, 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.[12]

The Virginia ruling was cited with approval in a Florida district court ruling which likewise held that compelling a fingerprint on an iPhone is not a protected act.[13]

Notably, one U.S. district court that considered the issue found that compelling production of fingerprints from all people present at the execution of a search warrant to unlock seized devices raised Fifth Amendment concerns.[14] In its opinion, the court in In re Application for a Search Warrant highlighted that an act may be testamentary in nature where the act concedes the existence, possession and control, and authenticity of information which tends to incriminate the person in question.[15] However, the court emphasized that its ruling in this case was highly fact-sensitive and was not meant to mean that the government’s request for forced fingerprinting will always be problematic.[16] Specifically, this court said that Fifth Amendment concerns are assuaged where “the nature of the electronic information sought is a foregone conclusion.”[17] In these situations, the federal district court agrees with case law neglecting to find a Fifth Amendment violation.[18]

In re Application for a Search Warrant can be distinguished from the State v. Diamond ruling in that the federal case considered compelling all people present at the time and location of a search warrant to provide a fingerprint.[19] Thus, in compelling a fingerprint of each person present, the person who owned the cellphone in question would be admitting he or she owned the cell phone. In contrast, the fact that Diamond owned the cell phone in question was a foregone conclusion. Thus, the Minnesota ruling is significant in that no court has reached an adverse conclusion on similar facts.

The upshot of this holding is that once the government obtains a proper search warrant for the contents of a cellphone, they can compel a fingerprint to unlock and reveal its contents. While providing a fingerprint and providing an alphanumeric passcode lead to the same result—that is, unlocking a cellphone—the legal distinction drawn by the Minnesota Supreme Court is correct given prior case law and the testimonial language in the Fifth Amendment. Providing an alphanumeric passcode clearly divulges the contents of one’s mind, while providing a fingerprint does not; it is a purely physical act. Thus, barring any substantial divergence from precedent on testimonial versus non-testimonial acts relating to the Fifth Amendment, other state and federal courts would be hard pressed to come to a result different from Diamond. One option for those who desire to keep the ease and convenience that goes along with a fingerprint passcode is to change the settings in their cell phone to require an alphanumeric passcode when the phone turns on or after a set amount of idle time. However, if the government obtains possession of the cell phone and manages to keep it powered “on,” the cell phone could be unlocked via fingerprint without violating the Fifth Amendment. Ultimately, the ruling in Diamond leaves Minnesotans—and, likely, citizens of other states as the issue is considered more broadly—vulnerable to hand over the contents of their cell phones unless they disable the fingerprint password capability in favor of an alphanumeric password.

  1. iPhone X, Apple https://www.apple.com/iphone-x/.
  2. Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014).
  3. State v. Diamond, 2018 WL 443356 (Minn. 2018).
  4. U.S. Const. amend. X.
  5. State v. Diamond, 2018 WL 443356, at *2 (Minn. 2018).
  6. Doe v. United States, 487 U.S. 201, 210 (1988).
  7. Id. (emphasis added).
  8. Diamond, 2018 WL at *4 (emphasis original).
  9. Id.
  10. Id. at *2.
  11. State v. Diamond, 890 N.W.2d 143, 151 (Minn. Ct. App. 2017).
  12. Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014).
  13. Florida v. Stahl, 206 So. 3d 124, 135 (Fla. Dist. Ct. App. 2016).
  14. In re Application for a Search Warrant, 236 F. Supp. 3d 1066, 1073 (N.D. Ill. 2017) (emphasis added).
  15. Id. at 1071 (citing Fisher v. United States, 425 U.S. 391, 410 (1976)).
  16. Id. at 1074.
  17. Id.
  18. Id.
  19. Id. at 1069 (emphasis added).