Smart phone technology gets exponentially smarter all the time, outpacing the law’s ability to keep up. With face recognition technology now available in the palm of your hand, courts are just starting to address whether police can compel a criminal defendant to unlock a smartphone that’s been programmed for fingerprint access. Courts in Pennsylvania have not yet touched on the issue, but a recent case of first impression from Minnesota is instructive.

If law enforcement wants to access information on a smartphone, an individual’s first move should be to request an experienced criminal defense attorney. Search and seizure issues, as well as attempting to compel someone being questioned to unlock a cell phone, invoke Constitutional rights that a defense lawyer can help to protect. For example, in the Minnesota fingerprint case, State v. Diamond, the defendant attempted to assert his Fifth Amendment right against self-incrimination in an effort to avoid providing a fingerprint to unlock a phone.

The Minnesota Supreme Court held that law enforcement could force a defendant to unlock his phone with his fingerprint, because giving a fingerprint, unlike providing a memorized passcode, does not involve “testimony” or the “contents of the mind” and thus falls outside Fifth Amendment protections. Minnesota decisions are clearly not binding on Pennsylvania Courts, but as the first such high court ruling in the country, the Diamond is liable to be discussed when it’s addressed in the Keystone State. Last November, a Pennsylvania Superior Court panel decided in Commonwealth v. Davis that there are circumstances in which a defendant can be forced to provide a computer password to an encrypted computer.

On the other hand, a 2015 unreported federal court decision in the Eastern District of Pennsylvania, Sec. & Exchange Comm’n v. Huang held that the Fifth Amendment did protect a defendant’s right to not divulge a password because it involved “personal thought processes.” So, can a defendant in Pennsylvania be forced to unlock a smartphone with a fingerprint? The answer is nobody knows yet. What is clear, though, is that they will need a seasoned criminal defense attorney.

Source: Minn. State Law Library, “State of Minnesota v. Diamond,” Minn. Supreme Court, Jan. 17, 2018