The fifth amendment of the U.S. Constitution protects individuals against self-incrimination. The amendment, when applied to digital devices, takes on special meaning because of the physical aspect of mobile devices. When asked to unlock a phone – a passcode, swipe, fingerprint, or pin number is entered by the user to gain access to the device. Is unlocking a telephone incriminating? The mere action of unlocking a phone implies at some level that the user has access to the device and its contents.
Beyond unlocking the device, the device may contain personal information that law enforcement may now access because the device is unlocked or open to examination. “The privilege against self-incrimination prohibits extorting information from someone by forcing him to disclose the contents of his own mind.” Curcio v. United States.
Nontestimonial Actions are Permitted Under the Fifth Amendment
Providing physical samples like hair or blood is not self-incriminating under the law. Additionally, neither is submitting to fingerprinting, photography, or measurements to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. All of these examples have been ruled to be appropriate during criminal investigations and not violate of the fifth amendment protection against self-incrimination. See Schmerber v. California.
Returning to the example where the mobile device is unlocked, the latest Samsung Galaxy 6 and S6 edge mobile devices accommodate up to four different fingerprints to open up a device. Anyone with a device with multiple users knows that the owner is the only user that can fully control the entire phone and permits other users access to the device and some of its apps and information. The owner can evoke access at any time or limit access within the user’s home page. So being able to unlock a phone does not necessarily mean the person is able to control the phone or its contents.
Get a Warrant
Law enforcement routinely obtains search warrants to examine property or monitor telecommunications – even swab inside a mouth for DNA. As more and more companies offer encryption services to its customers, the government by default will need to obtain search warrants to access desired information. While the price of progress is an erosion of privacy, people should be able to keep certain information about themselves private. To access it, law enforcement has mechanisms to gain entry and access to certain content without violating anyone’s rights. The criminal justice system works best with transparency. When all the players know the rules, the criminal justice system works at its best.
Every DWI Case is Unique
A good DWI defense attorney will guide you through every step of the DWI process, from arrest and arraignment to plea or trial. At The Law Office of Kimberly Griffin Tucker, P.C. we represent people accused of DWI in the Plano and surrounding areas of Denton County Texas. If you or someone you know has been arrested for DWI, contact us for a comprehensive case evaluation.