Daily Archives: July 23, 2017

Can a court order a suspect to use the suspects fingerprint to unlock his or her smartphone? Or would that violate the suspects Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion.

Background. The Fifth Amendment provides in part that no person may be compelled in any criminal case to be a witness against himself. This privilege against self-incrimination applies during the investigative phase of a case as well as at trial. And it applies to the disclosure of information that may lead to incriminating evidence even if the information is not itself directly indicative of guilt. However, it applies only to testimonial activity, not to nontestimonial actions like providing fingerprints, blood samples, or voice exemplars. The act of producing evidence that is not itself testimonial may have a compelled testimonial aspect, as when the act of producing the evidence constitutes an admission that the evidence was in the suspects possession or control. United States v. Hubbell, 530 U.S. 27 (2000) (ruling that tax fraud charges must be dismissed because the charges were based on documents the defendant produced in response to a grand jury subpoena; the defendants act of producing the documents was testimonial because the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of any incriminating documents; [t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox).

Smartphones are often secured by passcodes or fingerprint sensors. Ive written about computer passwords, which present the same Fifth Amendment issues as passcodes, here and here. In brief, some courts view compelling a suspect to provide a passcode as requiring a testimonial act because the passcode is contained in the suspects mind, and because providing the passcode may constitute an admission that the phone belongs to the suspect or is under the suspects control. That doesnt necessarily mean that a court can never order a suspect to provide a passcode. If the court concludes that it is obvious that the phone in question belongs to the suspect so that the act of providing the passcode wouldnt further incriminate the suspect, the court may rule that the suspects knowledge of the passcode is a foregone conclusion, rendering the Fifth Amendment inapplicable. Or the court might rule that the suspect may be required to provide the passcode if given immunity for the act of providing it. Both those possibilities involve complex legal questions that I hope to explore in a future post.

Although passcodes present thorny Fifth Amendment issues, the early authority on point regarding fingerprint sensors suggests that compelling a suspect to use his or her finger to unlock a phone is not testimonial. The suspect is required only to do a physical act placing his or her finger on a sensor and need not admit anything in his or her mind. My earlier post cited the authority available at that time, but we have some new case law now and it points in the same direction.

New cases. The most significant new case is State v. Diamond, __ N.W.2d __, 2017 WL 163710 (Minn. Ct. App. Jan. 17, 2017). The court ruled that a court order compelling a criminal defendant to provide a fingerprint to unlock the defendants cellphone does not violate the Fifth Amendment privilege against compelled self-incrimination.

In brief, the police arrested a burglary suspect and found that he was in possession of a cell phone. They obtained a search warrant for the phone and a court order requiring the suspect to provide a fingerprint to unlock the phone. On appeal, the defendant argued that this violated his Fifth Amendment right to be free from self-incrimination. The reviewing court disagreed because the order did not require the defendant to do anything that was testimonial. The court observed that the order did not require him to disclose any knowledge he might have and reasoned that it was no different than an order to provide a voice exemplar or a blood sample.

Less important but also worth noting is State v. Stahl, __ So. 3d __, 2016 WL 7118574 (Fla. Dist. Ct. App. Dec. 6, 2016). Stahl is a case about a courts authority to order a suspect to provide the passcode to a phone, not a fingerprint. But in the course of discussing the passcode issue, the court stated: Compelling an individual to place his finger on [an] iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar.

Caveat. Although requiring a suspect to press the suspects finger to a phone may not require any testimonial activity, orders on this point must be crafted carefully to avoid infringing on a suspects constitutional rights. An order requiring a suspect to unlock a phone, or to provide officers with an impression from the finger that unlocks a phone, might implicate the Fifth Amendment because such an order would require the suspect to decide which finger to use and so to share the suspects knowledge of which finger operates the sensor. Unless the foregone conclusion doctrine applies or the Fifth Amendment issue can be removed through the provision of appropriate immunity, such an order might be improper.

Worthwhile secondary sources. I cited a couple of secondary sources in my previous post. Id like to add to the list two blog posts by Professor Orin Kerr, a leading scholar in this area. His principal post on the topic is here, and a shorter one discussing the Diamond case is here.

Read more from the original source:
Update on Fingerprints, Phones, and the Fifth Amendment ...

Glenn Simpson, whose Fusion GPS firm has been tied to anti-Trump efforts and pro-Russian lobbying, will not talk to lawmakers in response to a subpoena, the leaders of the Senate Judiciary Committe said Friday.

Committee chairman Chuck Grassley, R-Iowa, and ranking member Dianne Feinstein, D-Calif., confirmed in a statement that they subpoenaed Simpson to appear before the committee Wednesday as part of a hearing about the influence of foreign lobbying in last year's presidential election.

"Simpsons attorney has asserted that his client will invoke his Fifth Amendment rights in response to the subpoena," Grassley and Feinstein said.

Fusion GPS co-founder Glenn Simpson is seen at the Aspen Security Forum in Aspen, Colo. Friday (Pam Browne/Fox News)

During the campaign, Fusion GPS contracted former MI-6 agent Christopher Steele to look into rumors about Trump's financial and social connections in Russia. The resulting "dossier," which was leaked to the media following Trump's victory in November included a number of sordid allegations about the president's sexual proclivities.

Last week, Fox News reported that Fusion GPS had ties to Russian efforts to undermine U.S. sanctions that were led by attorney Natalia Veselnitskaya.

Investment manager Bill Browder claims Simpson was hired by one of Veselnitskaya's clients, Prevezon Holdings, as part of an effort to repeal the Magnitsky Act, named for Sergei Magnitsky an attorney for Browder who was beaten to death in a Moscow prison after accusing Russian authorities of stealing hundreds of millions of dollars through tax refunds and then laundering the money through New York banks.

Veselnitskaya became the center of a political storm earlier this month after Donald Trump Jr. made public emails indicating that he had taken a meeting with her on the promise of receiving damaging information about Hillary Clinton.

Grassley and Feinstein also noted that both Trump Jr., who met with Veselnitskaya in June of last year, and former Trump campaign manager Paul Manafort, who sat in on the meeting, are negotiating their appearances and the possibility of turning over documents, but left open the possibility that the pair would be subpoenaed.

Fusion GPS has said it had nothing to do with the Trump Jr.-Veselnitskaya meeting.

Fusion GPS learned about this meeting from news reports and had no prior knowledge of it. Any claim that Fusion GPS arranged or facilitated this meeting in any way is absolutely false, the company said in a statement.

Manafort had attracted scrutiny for months from congressional committees and Mueller. The Associated Press reported in June that Mueller's probe has incorporated a long-standing federal investigation into Manafort's financial dealings. That investigation is scrutinizing political consulting work he did for a pro-Russian political party in Ukraine and the country's former president, Viktor Yanukovych.

Manafort has denied any wrongdoing related to his Ukrainian work, saying through a spokesman that it "was totally open and appropriate."

Manafort also recently registered with the Justice Department as a foreign agent for parts of Ukrainian work that occurred in Washington. The filing under the Foreign Agents Registration Act came retroactively, a tacit acknowledgement that he operated in Washington in violation of the federal transparency law.

The Associated Press contributed to this report.

Read this article:
Co-founder of firm behind Trump-Russia dossier to plead the Fifth - Fox News