The territory of the Ninth Circuit (Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana
Islands, and sometimes American Samoa) is now free of pesky clauses of
the Fourth and Fifth Amendments, the ones protecting against warrantless
searches and self incrimination.

Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone
The 9th Circuit determined that forcibly mashing a suspect's thumb into
his phone to unlock it was akin to fingerprinting him at the police
station.
by Joe Lancaster
Reason
4.19.2024 12:50 PM
https://reason.com/2024/04/19/appeals-court-rules-that-cops-can-physically-make-you-unlock-your-phone/

Steve Lehto video if you don't want to read the article:
https://www.youtube.com/watch?v=quV4JSKnf9Y

Note that the appellee was a parolee, but nothing about this ruling
truly limits it to persons who are not in prison but still under
sentence like probation or parole.

The contents of a cell phone were searched without a warrant. Because
the phone's owner used a biometric to unlock -- thumbprint -- the court
ruled that the phone's owner had NO PRIVACY as obtaining the fingerprint
placed it in the same category as taking fingerprints at booking.

(The ruling also said it was akin to "drawing blood", even though there
is a 2016 Supreme Court ruling that warrantless blood tests of suspects
in North Dakota law are unconstitutional.)

California Highway Patrol pulled over a vehicle for a window tinting
violation. The driver admitted to being on parole. He was handcuffed.
They took his cell phone. While handcuffed, they forced him to provide
the thumbprint to unlock the phone.

Now, parole conditions he was subject to allow warrantless seizure of
electronic devices. However, unlocking the device was not a parole
condition.

They found a video in which they saw blue pills which they suspected
were fentanyl. I guess an experienced police officer might say the pills
looked like contraband but I have no idea how he can claim to know what
contraband it is from an image. On the phone was a map to an address,
which they suspected was a home address. (It doesn't say they confirmed
with parole records that this was the man's home.) Using his own keys,
they entered, searched, seized drugs. The man was charged with
possession with intent to distribute.

The man argued that forcibly obtaining the thumb print was a compelled
testimonial communication in violation of the self-incrimination clause
of the Fifth Amendment, and because it happened while in custody, the
privilege against self-incrimination is jeopardized and the Fourth
Amendment also provides self incrimination protection (from Miranda).

He lost.

Judge Tallman, who wrote the opinion, made a bizarre distinction of when
the right against self incrimination is PRESERVED under the Fourth and
Fifth Amendments:

Tallman does note the peculiar circumstances of the case: "Our
opinion should not be read to extend to all instances where a
biometric is used to unlock an electronic device." But, he adds,
"the outcome...may have been different had [the officer]
required Payne to independently select the finger that he placed
on the phone" instead of forcibly mashing Payne's thumb into it
himself.

Let's think about this. Because the police officer took control of the
bodypart, the person in custody lacks protections of the Fourth and
Fifth Amendments against self incrimination. But if the person is in
custody but the police officer doesn't use physical force in the
biometric unlock, just a verbal command, then the evidence would have
been suppressed.

What if a retina scan were the required biometric unlock? With a
completely uncooperative suspect trying to preserve his privacy because
he thinks the constitution still applies, could the police have cut
out an eye?

In article <v03mg2$ekkk$1@dont-email.me>,
"Adam H. Kerman" <ahk@chinet.com> wrote:

> The territory of the 9th Circuit (Alaska, Arizona, California, Hawaii,
> Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana
> Islands, and sometimes American Samoa) is now free of pesky clauses of
> the 4th and 5th Amendments, the ones protecting against warrantless
> searches and self incrimination.
>
> Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone
> The 9th Circuit determined that forcibly mashing a suspect's thumb into
> his phone to unlock it was akin to fingerprinting him at the police
> station.
> by Joe Lancaster
> Reason
> 4.19.2024 12:50 PM
>
> Note that the appellee was a parolee, but nothing about this ruling
> truly limits it to persons who are not in prison but still under
> sentence like probation or parole.
>
> The contents of a cell phone were searched without a warrant. Because
> the phone's owner used a biometric to unlock -- thumbprint -- the court
> ruled that the phone's owner had NO PRIVACY as obtaining the fingerprint
> placed it in the same category as taking fingerprints at booking.

Which is why I've always eschewed the face/fingerprint unlock features.
Always go with a code.

> California Highway Patrol pulled over a vehicle for a window tinting
> violation. The driver admitted to being on parole. He was handcuffed.
> They took his cell phone. While handcuffed, they forced him to provide
> the thumbprint to unlock the phone.
>
> Now, parole conditions he was subject to allow warrantless seizure of
> electronic devices. However, unlocking the device was not a parole
> condition.
>
> They found a video in which they saw blue pills which they suspected
> were fentanyl. I guess an experienced police officer might say the pills
> looked like contraband but I have no idea how he can claim to know what
> contraband it is from an image. On the phone was a map to an address,
> which they suspected was a home address. (It doesn't say they confirmed
> with parole records that this was the man's home.) Using his own keys,
> they entered, searched, seized drugs. The man was charged with
> possession with intent to distribute.
>
> The man argued that forcibly obtaining the thumb print was a compelled
> testimonial communication in violation of the self-incrimination clause
> of the 5th Amendment, and because it happened while in custody, the
> privilege against self-incrimination is jeopardized and the 4th
> Amendment also provides self incrimination protection (from Miranda).

So if he'd used a code, none of this would have happened to him. They
would have shouted at him on the side of the road for 10 minutes,
demanding the code, but so long as he just kept repeating "I'm asserting
my 4th, 5th, and 6th Amendment rights and refuse to answer questions
without a lawyer present", there would ultimately be nothing they could
do.

BTR1701 <atropos@mac.com> wrote:
>Adam H. Kerman <ahk@chinet.com> wrote:

>>The territory of the 9th Circuit (Alaska, Arizona, California, Hawaii,
>>Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana
>>Islands, and sometimes American Samoa) is now free of pesky clauses of
>>the 4th and 5th Amendments, the ones protecting against warrantless
>>searches and self incrimination.

>>Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone
>>The 9th Circuit determined that forcibly mashing a suspect's thumb into
>>his phone to unlock it was akin to fingerprinting him at the police
>>station.
>>by Joe Lancaster
>>Reason
>>4.19.2024 12:50 PM

>>Note that the appellee was a parolee, but nothing about this ruling
>>truly limits it to persons who are not in prison but still under
>>sentence like probation or parole.
>>The contents of a cell phone were searched without a warrant. Because
>>the phone's owner used a biometric to unlock -- thumbprint -- the court
>>ruled that the phone's owner had NO PRIVACY as obtaining the fingerprint
>>placed it in the same category as taking fingerprints at booking.

>Which is why I've always eschewed the face/fingerprint unlock features.
>Always go with a code.

It's the same problem with being a courrier! "I cannot unlock the
armored case and I don't have the handcuff key." "That's ok. We'll cut
off your hand at the wrist." If it's a body part, you can be compelled
to use it.

But is the Ninth Circuit wrong? Prior to this ruling, could police
compel one to unlock the phone?

Do you agree with the court's differentiation, that if police force the
decryption there's no privacy violation (because it's just like
fingerprinting) but if police order you to do it, you can refuse?

>>California Highway Patrol pulled over a vehicle for a window tinting
>>violation. The driver admitted to being on parole. He was handcuffed.
>>They took his cell phone. While handcuffed, they forced him to provide
>>the thumbprint to unlock the phone.

>>Now, parole conditions he was subject to allow warrantless seizure of
>>electronic devices. However, unlocking the device was not a parole
>>condition.

>>They found a video in which they saw blue pills which they suspected
>>were fentanyl. I guess an experienced police officer might say the pills
>>looked like contraband but I have no idea how he can claim to know what
>>contraband it is from an image. On the phone was a map to an address,
>>which they suspected was a home address. (It doesn't say they confirmed
>>with parole records that this was the man's home.) Using his own keys,
>>they entered, searched, seized drugs. The man was charged with
>>possession with intent to distribute.

>>The man argued that forcibly obtaining the thumb print was a compelled
>>testimonial communication in violation of the self-incrimination clause
>>of the 5th Amendment, and because it happened while in custody, the
>>privilege against self-incrimination is jeopardized and the 4th
>>Amendment also provides self incrimination protection (from Miranda).

>So if he'd used a code, none of this would have happened to him. They
>would have shouted at him on the side of the road for 10 minutes,
>demanding the code, but so long as he just kept repeating "I'm asserting
>my 4th, 5th, and 6th Amendment rights and refuse to answer questions
>without a lawyer present", there would ultimately be nothing they could
>do.

This is a practical distinction but I don't see how it's a
constitutional distinction.

On Sun, 21 Apr 2024 21:19:41 -0000 (UTC), "Adam H. Kerman"
<ahk@chinet.com> wrote:

>BTR1701 <atropos@mac.com> wrote:
>>Adam H. Kerman <ahk@chinet.com> wrote:
>
>>>The territory of the 9th Circuit (Alaska, Arizona, California, Hawaii,
>>>Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana
>>>Islands, and sometimes American Samoa) is now free of pesky clauses of
>>>the 4th and 5th Amendments, the ones protecting against warrantless
>>>searches and self incrimination.
>
>>>Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone
>>>The 9th Circuit determined that forcibly mashing a suspect's thumb into
>>>his phone to unlock it was akin to fingerprinting him at the police
>>>station.
>>>by Joe Lancaster
>>>Reason
>>>4.19.2024 12:50 PM
>
>>>Note that the appellee was a parolee, but nothing about this ruling
>>>truly limits it to persons who are not in prison but still under
>>>sentence like probation or parole.
>
>>>The contents of a cell phone were searched without a warrant. Because
>>>the phone's owner used a biometric to unlock -- thumbprint -- the court
>>>ruled that the phone's owner had NO PRIVACY as obtaining the fingerprint
>>>placed it in the same category as taking fingerprints at booking.
>
>>Which is why I've always eschewed the face/fingerprint unlock features.
>>Always go with a code.
>
>It's the same problem with being a courrier! "I cannot unlock the
>armored case and I don't have the handcuff key." "That's ok. We'll cut
>off your hand at the wrist." If it's a body part, you can be compelled
>to use it.
>
>But is the Ninth Circuit wrong? Prior to this ruling, could police
>compel one to unlock the phone?
>
>Do you agree with the court's differentiation, that if police force the
>decryption there's no privacy violation (because it's just like
>fingerprinting) but if police order you to do it, you can refuse?

Except it isn't fingerprinting as the police aren't taking the
fingerprint with them. Instead they are using it to break into your
private property. If the police can do this legally then can they do
the same to enter your smart home (yes, some do use fingerprints to
unlock the doors.) I mean it is still your private property but for
some reason we don't let police enter your home without a warrant but
will allow them to access your phone.

>>>California Highway Patrol pulled over a vehicle for a window tinting
>>>violation. The driver admitted to being on parole. He was handcuffed.
>>>They took his cell phone. While handcuffed, they forced him to provide
>>>the thumbprint to unlock the phone.
>
>>>Now, parole conditions he was subject to allow warrantless seizure of
>>>electronic devices. However, unlocking the device was not a parole
>>>condition.
>
>>>They found a video in which they saw blue pills which they suspected
>>>were fentanyl. I guess an experienced police officer might say the pills
>>>looked like contraband but I have no idea how he can claim to know what
>>>contraband it is from an image. On the phone was a map to an address,
>>>which they suspected was a home address. (It doesn't say they confirmed
>>>with parole records that this was the man's home.) Using his own keys,
>>>they entered, searched, seized drugs. The man was charged with
>>>possession with intent to distribute.
>
>>>The man argued that forcibly obtaining the thumb print was a compelled
>>>testimonial communication in violation of the self-incrimination clause
>>>of the 5th Amendment, and because it happened while in custody, the
>>>privilege against self-incrimination is jeopardized and the 4th
>>>Amendment also provides self incrimination protection (from Miranda).
>
>>So if he'd used a code, none of this would have happened to him. They
>>would have shouted at him on the side of the road for 10 minutes,
>>demanding the code, but so long as he just kept repeating "I'm asserting
>>my 4th, 5th, and 6th Amendment rights and refuse to answer questions
>>without a lawyer present", there would ultimately be nothing they could
>>do.
>
>This is a practical distinction but I don't see how it's a
>constitutional distinction.

Adam H. Kerman <ahk@chinet.com> wrote:
> BTR1701 <atropos@mac.com> wrote:
>> Adam H. Kerman <ahk@chinet.com> wrote:
>
>>> The territory of the 9th Circuit (Alaska, Arizona, California, Hawaii,
>>> Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana
>>> Islands, and sometimes American Samoa) is now free of pesky clauses of
>>> the 4th and 5th Amendments, the ones protecting against warrantless
>>> searches and self incrimination.
>
>>> Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone
>>> The 9th Circuit determined that forcibly mashing a suspect's thumb into
>>> his phone to unlock it was akin to fingerprinting him at the police
>>> station.
>>> by Joe Lancaster
>>> Reason
>>> 4.19.2024 12:50 PM
>
>>> Note that the appellee was a parolee, but nothing about this ruling
>>> truly limits it to persons who are not in prison but still under
>>> sentence like probation or parole.
>
>>> The contents of a cell phone were searched without a warrant. Because
>>> the phone's owner used a biometric to unlock -- thumbprint -- the court
>>> ruled that the phone's owner had NO PRIVACY as obtaining the fingerprint
>>> placed it in the same category as taking fingerprints at booking.
>
>> Which is why I've always eschewed the face/fingerprint unlock features.
>> Always go with a code.
>
> It's the same problem with being a courrier! "I cannot unlock the
> armored case and I don't have the handcuff key." "That's ok. We'll cut
> off your hand at the wrist." If it's a body part, you can be compelled
> to use it.

In the classic movie WHEN WORLDS COLLIDE the South African astronomer
handcuffs the box full of data about the end of the world to courier Dave
Randall, who is concerned until they hand him a key. But at the other end,
it turns out the key just opens the box itself, so he’s still stuck
standing there with handcuffs attaching him to an empty box…

--
The last thing I want to do is hurt you, but it is still on my list.

On 4/21/24 3:58 PM, BTR1701 wrote:
> In article <v03mg2$ekkk$1@dont-email.me>,
> "Adam H. Kerman" <ahk@chinet.com> wrote:
>
>> The territory of the 9th Circuit (Alaska, Arizona, California, Hawaii,
>> Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana
>> Islands, and sometimes American Samoa) is now free of pesky clauses of
>> the 4th and 5th Amendments, the ones protecting against warrantless
>> searches and self incrimination.
>>
>> Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone
>> The 9th Circuit determined that forcibly mashing a suspect's thumb into
>> his phone to unlock it was akin to fingerprinting him at the police
>> station.
>> by Joe Lancaster
>> Reason
>> 4.19.2024 12:50 PM
>>
>> Note that the appellee was a parolee, but nothing about this ruling
>> truly limits it to persons who are not in prison but still under
>> sentence like probation or parole.
>>
>> The contents of a cell phone were searched without a warrant. Because
>> the phone's owner used a biometric to unlock -- thumbprint -- the court
>> ruled that the phone's owner had NO PRIVACY as obtaining the fingerprint
>> placed it in the same category as taking fingerprints at booking.
>
> Which is why I've always eschewed the face/fingerprint unlock features.
> Always go with a code.

Unless it's a moral code, which you clearly don't have. Oh, and what
Verman said doesn't sound legal in the slightest. Is there a lawyer you
can ask for confirmation?

>> California Highway Patrol pulled over a vehicle for a window tinting
>> violation. The driver admitted to being on parole. He was handcuffed.
>> They took his cell phone. While handcuffed, they forced him to provide
>> the thumbprint to unlock the phone.
>>
>> Now, parole conditions he was subject to allow warrantless seizure of
>> electronic devices. However, unlocking the device was not a parole
>> condition.
>>
>> They found a video in which they saw blue pills which they suspected
>> were fentanyl. I guess an experienced police officer might say the pills
>> looked like contraband but I have no idea how he can claim to know what
>> contraband it is from an image. On the phone was a map to an address,
>> which they suspected was a home address. (It doesn't say they confirmed
>> with parole records that this was the man's home.) Using his own keys,
>> they entered, searched, seized drugs. The man was charged with
>> possession with intent to distribute.
>>
>> The man argued that forcibly obtaining the thumb print was a compelled
>> testimonial communication in violation of the self-incrimination clause
>> of the 5th Amendment, and because it happened while in custody, the
>> privilege against self-incrimination is jeopardized and the 4th
>> Amendment also provides self incrimination protection (from Miranda).
>
> So if he'd used a code, none of this would have happened to him. They
> would have shouted at him on the side of the road for 10 minutes,
> demanding the code, but so long as he just kept repeating "I'm asserting
> my 4th, 5th, and 6th Amendment rights and refuse to answer questions
> without a lawyer present", there would ultimately be nothing they could
> do.