 Police can acquire fingerprints and used it to unlock a phone without the permission of the court

 Unlike disclosing passcodes, you are not compelled to speak or say

what’s ‘in your mind’ to law enforcement,” Gidari said. “‘Put your finger
here’ is not testimonial or self-incriminating.”2
 Law enforcement routinely obtains search warrants to examine property
or monitor telecommunications, even swab inside an inmate’s mouth for
DNA. But fingerprints have long remained in the class of evidence that
doesn’t require a warrant, along with providing handwriting samples or
standing in a lineup. Courts have categorized fingerprints as “real or
physical evidence” sourced from the body, unlike communications or
knowledge, which cannot be compelled without violating the 5th
Amendment.3
 Apple’s fingerprint sensor, known as Touch ID, is installed on phones
and tablets rolled out after 2013, and the optional feature has a narrow
window during which it is viable for an investigator. The Touch ID
biometric reader cannot be used if the phone has not been unlocked for
48 hours. If a phone is restarted, or goes beyond the 48-hour window,
only a passcode can open it. In 2014, a judge said Baust could be
compelled to provide his fingerprint to open a locked phone but could
not be ordered to disclose a passcode. The judge reasoned that providing
a fingerprint was akin to giving a key, while giving a passcode — stored
in one’s mind — entailed revealing knowledge and therefore testifying.
Baust was later acquitted.4
 “cannot be compelled [by the police] to produce his passcode to access
his smartphone but he can be compelled to produce his fingerprint to do
the same.”5
 udge Frucci ruled that phone passwords were entitled to protection
under the Fifth Amendment’s promise that no person “shall be
compelled in any criminal case to be a witness against himself.” Id. He

1
GLENDALE CASE
2
lbert Gidari, the director of privacy at Stanford Law School’s Center for
Internet and Society, said the action might not violate the 5th Amendment
prohibition of self-incrimination.
3
GLENDALE CASE
4
2014 Virginia v. Baust, No. CR14-1439
5
2014 Virginia v. Baust, No. CR14-1439 AT 4
 stressed that the password existed only in the defendant’s mind, and
thus compelling the defendant to provide a passcode constituted a
testimonial communication. The Fifth Amendment protects against such
compulsion. On the other hand, Judge Frucci concluded that
smartphone fingerprint protection did not qualify for the Fifth
Amendment privilege. He noted that producing a fingerprint did not
require the communication of knowledge, but was rather analogous to
being ordered to produce a DNA sample or a key, which is
constitutionally permissible.6
 the Fifth Amendment “offers no protection against compulsion to submit
to fingerprinting.7
 whether a passcode or a fingerprint was “testimonial communication”
under the Supreme Court’s precedents, concluding that the former was
and the latter was not.
 that unlocking a phone with a fingerprint is no more "testimonial" than a blood draw,
police lineup appearance, or even matching the description of a suspected criminal. (h
 hose requirements involve a level of knowledge and mental capacity that is not present in
ordering Diamond to place his fingerprint on his cellphone. Instead, the task that
Diamond was compelled to perform—to provide his fingerprint—is no more testimonial
than furnishing a blood sample, providing handwriting or voice exemplars, standing in a
lineup, or wearing particular clothing.8
 ELIZABETH HAS BEEN COOPERATIVE THROUGHOUT THE SEARCH AS SHE READILY GIVES HER
FINGERPINTS WITHOUT ARGUING THE OFFICERS that wwhich finger they want and nor did she
bing an additional motion to suppress the evidencebased on the exchange initated.
 the Supreme Court has divided “testimony” into two categories: communicative and physical,
with only the former receiving Fifth Amendment protection.9
 This delineation is laid out as follows: “the prohibition of compelling a man in a criminal court to
be witness against himself is a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence when it may be material.”5
In the days when an individual’s most intimate secrets could only be found within the depths of
his own conscience, this type of doctrine made sense.10
 “the prohibition of compelling a man in a criminal court to be a witness against himself is a
prohibition of the use of physical or moral compulsion to extort communications from him, not
an exclusion of his body as evidence when it may be material.”31 He justified this interpretation

6
2014 Virginia
v. Baust, No. CR14-1439 AT 2
7
United States v. Wade, 388 U.S. 218 (1967)
8
United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010)
9
Holt v. U.S., 218 U.S. 245, 252–53 (1910)
10
Holt v. U.S., 218 U.S. 245, 252–53 (1910)
 by explaining that excluding the use of the body to obtain evidence was illogical because it
would prevent a jury from using practical means to identify a suspect, such as comparing a
suspect’s features with a photograph11
 the evidence was obtained from Schmerber’s body, and he had in no way been compelled to
speak or to produce communicative evidence, his Fifth Amendment rights had not been
violated.36 This case adopted a quite literal interpretation of the clause, where the privilege was
not triggered because there was no verbal or written testimony involved12
 no communication in pressing finger.
 Because it did not convey any information to the government, either implicitly or explicitly,
Doe’s signature had no testimonial significance.13
 Stevens argued that forcing Doe to sign the directive was synonymous with compelling him to
use his mind to aid the government, and as a result should be treated as a testimonial act rather
than as the physical production of evidence14
 although a phone could certainly contain files not owned or created by the fingerprint’s owner,
the fact that a person has the authority to access that information seems like strong evidence of
a connection to the suspected criminal activity
 Therefore, the Court held that however incriminating the documents themselves might have
been, the act of producing them in itself did not rise to the level of testimony protected by the
Fifth Amendment15
 “foregone conclusion” doctrine.66 This doctrine suggests that if the government is not relying
on a defendant’s compelled testimony for substantive information, then the contents obtained
are a “foregone conclusion,” and “no constitutional rights are touched. The question is not of
testimony but of surrender.”67 In Fisher, the government knew who had owned and prepared
the documents, as well as their location. The testimony of the defendant, regardless of whether
it was communicative or physical, added little to the government’s information, so the
defendant’s cooperation did nothing to aid the government’s case against him. If the
circumstances had been different, and Fisher’s production of the documents would have served
as an admission of his guilt, then the Court may have reached a different result
 The taking of fingerprints does not fall within the category of either communication or testimony
so as to be protected by the Fifth Amendment privilege. United States v. Wade
 The confession that is fingerprints is involuntary bcoz police has given her warning that she has
no other option and she was not informed about the use of her prints.
 Secondly, the use of fingerprints as evidence does not violate the express provisions of the self-
incrimination privilege for two reasons. The privilege is designed to prevent a court from
requiring that a defendant make statements or do acts that will "tend to incriminate him." But in
the case of fingerprints, the accused person is not "testifying as a witness" nor "delivering any
testimonial utterance."'13 The distinction was enunciated by Mr. Justice Holmes in Holt v.

11
Holt v. United States at 253
12
e Schmerber v. California, 384 U.S. 757 (1966); Gilbert v. California, 388 U.S. 263 (1967). At 765
13
Doe v. United States, 487 U.S. 201 (1988). At 201
14
Doe v. United States, 487 U.S. 201 (1988). At 219-20
15
Fisher v. United States, 425 U.S. 391 (1976). At 410-11
 United States14 as follows: ". . . the prohibition of compelling a man in a criminal court to be a
witness against himself is a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence when it may be material." It
can hardly be claimed that taking one's fingerprints involves a testimonial act on his part, but
this is the only kind of act to which the privilege applies. A second, and perhaps less satisfactory
reason that the privilege does not apply here, is that when one's fingerprints are taken, there is
no compulsion exercised. As one court has put it, 1' "No volition-that is, no act of willing-on the
part of the mind of the defendant is required. Fingerprints of an unconscious person, or even of
a dead person are y, the policy of the privilege is not violated by admission of fingerprints. Even
assuming that its present purpose is to safeguard against inquisitorial methods of prosecution, it
can hardly be said that taking one's fingerprints, which is merely a method of identification, is
one of the kind of practices which this privilege was designed to prevent. If we accept Dean
Wigmore's more realistic theory, that the privilege is useful now only to prevent official
negligence in actually solving crimes, it is apparent that this policy is being defeated, rather than
aided, by the present application of the self-incrimination principle.16
 The foregone conclusion doctrine would have an important effect on the outcome of a case
involving the compulsion of a fingerprint for the purpose of unlocking a cellular phone or similar
device. Just like signing a document could serve as an admission of guilt and a communication of
knowledge to the government, so too could the act of pressing a finger on the scanner of a
digital device. Perhaps even more so; since providing law enforcement officials with access to a
locked device indicates knowledge and ownership of all files and documents stored within,
doing so may effectively aid the government in its case against the device’s owner. Only those
who register their fingerprint with the device can use it as a security measure
 if compelled production is admitting knowledge of the location, contents, or ownership of the
files, then the act of production is testimonial in nature.17 It is true that pressing a finger to the
sensor on an electronic device is a volitional movement regardless of what purpose the act is
serving strict categories of communicative versus physical evidence and towards a more flexible
approach. A suspect compelled to unlock a device with his fingerprint could very well receive
constitutional protection, because the act could “provide a prosecutor with a lead to
incriminating evidence or a link in the chain of evidence needed to prosecute.”94 The act has
then become testimonial because it is implicitly communicating information to the government.
It is important to keep in mind that the privilege protects against compulsory incrimination
through one’s own testimonial communication, but does not protect private information per se.
In this way, “the Fifth Amendment privilege against self-incrimination does not necessarily bar
compelling the disclosure of evidence that a criminal defendant created voluntarily in the past,
even if the evidence betrays incriminating assertions of fact or belief18

16
Volume 37 issue 6 Arthur R. Jr. Seder, Compulsory Fingerprinting and the Self-Incrimination Privilege, 37 J. Crim.
L. & Criminology 511 (1946-1947)
17
e Hubbell, 530 U.S. 27.
18
Paul M. Coltoff et al., 31 N.Y. Jur. 2d Criminal. Law: Procedure. § 549 (2014)
  the volitional movement required to place a finger on a scanner does not require the suspect to
divulge the “contents of the mind.”
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AGAINST
 “It isn’t about fingerprints and the biometric readers,19 but rather, “the
contents of that phone, much of which will be about her, and a lot of that
could be incriminating
 The act of compelling a person in custody to press her finger against a
phone breached the 5th Amendment’s protection against self-
incrimination. It forced ELIZABETH to testify —without uttering a word
— because by moving her finger and unlocking the phone, she
authenticated its contents.
 supplying his fingerprint was testimonial. In In re Grand Jury, the court reasoned that
requiring the defendant to decrypt and produce the contents of a computer’s hard drive,
when it was unknown whether any documents were even on the encrypted drive, “would
be tantamount to testimony by [the defendant] of his knowledge of the existence and
location of potentially incriminating files; of his possession, control, and access to the
encrypted portions of the drives; and of his capability to decrypt the files.” Id. at 1346.

” Susan Brenner, a law professor at the University of Dayton who studies the
19

nexus of digital technology and criminal law,

 The court concluded that such a requirement is analogous to requiring production of a
combination and that such a production involves implied factual statements that could
potentially incriminate20
 just because the registration of a fingerprint may attest to a phone’s ownership, it would not
necessarily act as a bar to Fifth Amendment protection

 It says the process that unlocked the device requires no knowledge or mental capacity --
which is certainly true -- but that the end result, despite being the same (the production
of evidence against themselves) is somehow different because of the part of the body used
to obtain access (finger v. brain).In recounting the obtaining of the print, the court shows
that some knowledge is imparted by this effort -- information not possessed by law
enforcement or prosecutors21
 This is something only ELIZABETH would know, and by unlocking the phone, he would be
demonstrating some form of control of the device as well as responsibility for its contents.
So, it is still a testimonial act, even if it doesn't rise to the mental level of retaining a
password or combination. (And, if so, would four-digit passcodes be less "testimonial" than
a nine-digit alphanumeric password, if the bright line comes down to mental effort?

20
In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012)
21
State of Minnesota v.matthew Vaughn diamond.