May 17, 2017 Criminal defense — Beware only using a thumbprint to secure your cellphone data
When I am in court, I am focusing on my own client’s case. Nevertheless, when something unusual happens in another case, my ears pay attention.
Recently, an unrepresented jail inmate appeared in a General District Court well outside Northern Virginia — where I, therefore, only infrequently appear — apparently for an arraignment.
The prosecutor early on mentioned a motion he had filed that day or recently, seeking a court order for the defendant to provide his thumbprint — and not the phone’s password — to be able to unlock his phone (apparently seized on the arrest date or pursuant to a subsequent search warrant) that had been seized. It appears that the defendant may not have been handed a copy of the motion until coming into the courtroom. The prosecutor indicated that his motion included citation to legal authority that he said was on point.
At no point did the judge nor prosecutor seem to check whether the defendant wanted to delay this hearing in order to have a lawyer argue the matter on his behalf, even though the motion could hardly have even been responded to on the spot by a criminal defense lawyer.
What was the urgency to grant the prosecutor’s motion so quickly rather than to afford the defendant the opportunity to obtain retained or court-appointed counsel to challenge the motion? The phone does not have legs. Its data is not going to go away (unless the defendant is able to do that remotely, and then the court could have quickly appointed a defense lawyer, where one or two court appointed lawyers were already in the courtroom at the time). What does the Sixth Amendment right to counsel mean otherwise?
Indicating by his question that perhaps the phone contained incriminating evidence, the defendant asked the judge — after the prosecutor’s motion was granted — what would happen if the defendant declined to provide his thumbprint. While I admire and appreciate the judge’s gracious tone of voice and words in saying essentially that such a bridge would be crossed if and when arrived at, that did not satisfy the clearly chopped sides of a lawyer for the prosecution presenting the judge with such a sensitive motion without the defendant’s having a lawyer for the matter.
Aside from the importance of the defendant’s having a lawyer to contest this prosecutorial motion, the judge would have benefited from a defense lawyer’s precluding the lopsidedness of the hearing without a criminal defense lawyer. The criminal defense lawyer could have argued whether probable cause existed to search the cellphone and to comply with Riley v. California, 134 S. Ct. 2473, 2485 (2014), the seminal Supreme Court case on the matter. The lawyer could have argued the privacy interests disfavoring any assertion that requiring a thumbprint on a phone is much less privacy-intrusive than requiring divulging the phone’s password, and is a slippery slope towards requiring divulging the password if the thumbprint does not after all unlock the phone.
As a practical matter, this case is a warning about whether to program your phone and other electronic devices only to unlock with a thumbprint, versus coupling the thumbprint with password protection.