Defense Attorney Shares How to Protect Yourself from Cops Forcing You to Open Your Phone Using Biometrics

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We keep so much personal info on our phones these days thinking they’re all safe with biometric authentication, but it turns out, cops might force you to open your phone using biometrics. So, how can you keep your data secure? A defense lawyer recently shared his insights.

Is Your Phone Privacy at Risk?


Attorney Jeff Hampton recently highlighted the tensions between law enforcement authority and individual privacy rights, focusing on the use of biometrics to unlock phones. 

The backdrop for this discussion is the case of Jeremy Payne, whose encounter with law enforcement highlights the potential overreach in digital privacy.

A Routine Stop with Deep Repercussions


In November 2021, Jeremy Payne found himself in a routine traffic stop by the California Highway Patrol for tinted windows. 

Acknowledging his parole status led to further scrutiny. 

A Controversial Method of Investigation


Officers discovered his cellphone and, controversially, used his thumb to unlock the device while he was handcuffed—a method Payne contested, despite the officers’ claims that he consented. 

This action sparked a debate about the legality of compelled biometric access.

Fentanyl Found


The search revealed a video that led to Payne’s residence, where officers found over 800 pills suspected to be fentanyl. Charged with possession with intent to distribute, Payne faced significant legal challenges. 

Violating Rights or Upholding the Law?


His defense argued that forcing him to unlock his phone constituted a violation of his constitutional rights against unreasonable searches and self-incrimination. However, despite these arguments and the constraints of his parole terms, which dictate the surrender of electronic devices but not the use of force for access, the court denied his motion to suppress the evidence.

A 12-year Sentence


Ultimately, Payne pleaded guilty and received a 12-year sentence, marking a substantial increase from his previous three-year sentence for an unrelated crime. This case raises critical questions about the boundaries of law enforcement in the age of digital privacy.

A Legal Examination of Biometric Use

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Attorney Jeff Hampton, in his detailed examination of the Ninth Circuit Court of Appeals’ decision, centers on a pressing legal debate: whether police can compel individuals to use biometric identifiers, like fingerprints, to unlock phones without a warrant. 

This issue bridges critical Fourth and Fifth Amendment protections.

Is Unlocking Your Phone Self-Incrimination?

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The court’s ruling affirmed that such actions are permissible, equating the process with routine fingerprint collection during arrests. 

Yet, this decision touches on the broader, more contentious implications under the Fifth Amendment, which guards against self-incrimination. 

It’s Like Providing a Blood Sample


Jeremy Payne’s argument was that forcing him to unlock his phone constituted testimonial communication, which should be protected under this amendment.

However, Judge Richard Tilman’s opinion countered that using Payne’s biometric data (his thumbprint) to unlock the phone did not involve any cognitive effort on Payne’s part—viewing it akin to providing a physical fingerprint or a blood sample, which traditionally are not covered by Fifth Amendment protections regarding testimonial acts.

Protecting Personal Data from Cops


Hampton sheds light on a critical concern: modern smartphones contain tons of personal information—from travel logs and financial details to private communications. 

If police can unlock a phone via biometrics without a warrant, it potentially grants them access to extensive personal data that would typically require judicial oversight to obtain.

Testimonial Acts


This ruling draws a significant line between testimonial acts, which reveal knowledge or thoughts, and nontestimonial acts, such as biometrics. The former, including passcodes or passwords, remain protected under the Fifth Amendment.

Non-testimonial Acts

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Non-testimonial acts, such as providing a fingerprint or DNA sample, do not engage the Fifth Amendment’s protections because they do not involve disclosing one’s thoughts or knowledge. 

This distinction is crucial in understanding why using biometrics to unlock a phone does not violate the Fifth Amendment.

Avoid Biometric Locks:


Given this legal framework, Hampton strongly advises against the use of biometric locks on phones. He recommends opting for passcodes or passwords instead, as these require cognitive effort to recall, thus falling under Fifth Amendment protections against self-incrimination.

Secure Your Phone from Unwanted Access


Hampton also suggests several practical measures to enhance phone security, particularly during situations like traffic stops where police might request access to your device. 

Instant Privacy Protection Techniques

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For iPhone users, a quick method to safeguard privacy is to press the power button five times rapidly— this action triggers the emergency SOS menu, effectively disabling biometric unlocking and requiring a passcode for access. 

Android users have similar options that should be explored to ensure quick disabling of biometric features.

Smart Placement

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Hampton also recommends keeping your phone out of plain sight, such as on the dashboard, during traffic stops to reduce the likelihood of police demands for access. Placing your phone in the center console can offer an added layer of security, as police would need probable cause to search this more concealed area of your vehicle. 

Through these strategies, Hampton highlights how users can proactively protect their digital information from unwarranted searches.

The 9th Circuit’s Biometric Ruling


Earlier in 2024, the 9th Circuit Court of Appeals in California issued a significant ruling in the case of United States v. Jeremy Travis Payne, which delved into the contentious issue of biometric privacy and law enforcement’s authority. 

A Narrow Ruling with Broad Implications


The court concluded that state highway police acted within legal boundaries when they used Payne’s fingerprint to unlock his phone during an investigation following a drug bust. This case, however, didn’t garner widespread media attention.

Parole Status and Privacy Rights

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The court clarified that this decision does not universally authorize law enforcement to use biometrics such as fingerprints to unlock a phone during arrests. 

Rather, it focused specifically on the circumstances surrounding Payne’s case, especially considering that he was on parole at the time. 

The Current State of Biometric Legal Debates


This context is crucial because parolees often have diminished privacy rights compared to the general public. The ruling discussed the intersection of the 5th Amendment, which protects against self-incrimination, and the 4th Amendment, which guards against unreasonable searches and seizures. 

The judges determined that in this instance, the use of Payne’s thumbprint did not violate these constitutional protections.

Legal Uncertainty

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The panel acknowledged the complexity of the legal landscape, noting that neither the Supreme Court nor any other appellate circuits have definitively ruled on whether the compelled use of a biometric feature to unlock an electronic device counts as testimonial evidence. 

This makes the 9th Circuit’s decision a narrow one, applicable primarily to Payne’s specific circumstances but also a reminder of the ongoing debates over privacy in the digital age.

Legal Loopholes and Biometrics


The case underscores a critical point for mobile phone users, particularly those who might find themselves in situations where interactions with law enforcement are likely, such as at protests. 

It serves as a warning about the potential vulnerabilities associated with using biometric locks. The ruling suggests that individuals should consider disabling biometric features and rely instead on passcodes or passwords, which currently offer more robust legal protection under the 5th Amendment. 

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Kate Smith, a self-proclaimed word nerd who relishes the power of language to inform, entertain, and inspire. Kate's passion for sharing knowledge and sparking meaningful conversations fuels her every word.