Mugshot photographs are constitutional, no? Suppose the face biometrics were poorly implemented, such that holding a printout of the mugshot were sufficient to defeat the facial recognition. Would doing that violate the 5th amendment? What if the face biometrics are better than that, but they can still be defeated by a very carefully constructed 3d model of the suspects head, created from data taken from numerous mugshots taken from many angles?

Or what if a suspects fingerprint was taken without his consent by the police, and compared against a fingerprint taken from the murder weapon? Is that self incrimination?

I'm not seeing the "self incrimination" angle for face or fingerprint scans here. For classical passwords yes, but not for biometrics.

The issue is more related to the intent of the action regardless of the practicalities of it. Essentially the subjecting giving a password is giving their consent to the device to unlock it. Using their iris or facial pattern as something compelled in that context would be distinct from the gunshot residue or blood of a victim which also incriminates them since that is something about them as opposed to being compelled to testify against themselves.

It is admittedly a weaker argument from a pure physical standpoint but the law doesn't operate based upon that anyway. Any judge would throw out a request in discovery for the defendant to produce a recording confessing their guilt even for legitimate comparative purposes and many other requests or demands that would be unduly prejudicial for 5th amendment reasons.

I'm just not seeing a meaningful distinction between forcibly taking their fingerprint ("something about them") to check against prints found on a gun and forcibly taking their fingerprint ("something about them") to check a smartphone found on the scene.

If they have a warrant to check the phone, and if taking fingerprints of the arrested without consent has already been found constitutional, I just don't see a problem.

I'm guessing this ruling is about taking the suspects actual finger and placing it on the scanner. This is different from building a fake finger based on fingerprints and using it to unlock your device.

Consider the password case, you can't be compelled to give your password, but the government is allowed to throw all of their hacking prowess against your device to crack that password. They can even ask you about the name of your first pet to get through security questions. Though they can't compel you to answer truly regarding the name of your first pet.

The important word in the comment you're replying to is "knowledge." The biometric properties of your face are not knowledge and are not protected by the 5th amendment.

If your password is “I killed him and the body is hidden under my deck” and that’s the literal crime you are being charged with, sure. But your password is usually not an admission of a crime, so that’s not the argument.

Even if your encrypted laptop contains evidence, you cannot plead the fifth if the prosecutors know it’s there. As long as they can get a warrant and when they get the data say “see your honor? Here is the evidence we knew was there!”, it doesn’t fall under the fifth.

Self incrimination would be if you are charged with tax fraud and proof is on your encrypted drive and the prosecution knows this, but also on that drive is records of money laundering, a separate crime they do not know about. This is when pleading the fifth would apply. By decrypting the laptop, you would incriminate yourself in a second crime, that you were not being charged with. Presumably if you were coerced into decrypting the laptop in this case, you could use the argument that the money laundering evidence can not be admitted into court because it was obtained inappropriately.

IANAL and this ain’t legal advice. Stay in school kids.

Not quite.

It depends on what you are charged with.

In a case of say, possession of stolen information, the laws of possession applied to contraband such as drugs would likely apply.

Since the information wouldn't be in your actual possession(literally in your hands or on your person), then they would fall under constructive possession laws.

In most states, constructive possession has 3 parts --

1) You must have knowledge of the presence of the contraband

2) You must know of the contraband's illicit nature

3) You must have the ability to exercise dominion and control over the contraband.

If I slip an encrypted thumb drive full of stolen trade secrets into your suitcase at the airport, you're not automatically in possession of those things because, absent any other information, none of the rules above could be satisfied.

But, if you knew the encryption key to the thumb drive, then that is evidence against you and that knowledge would be protected under the 5th amendment.

If police find a random iPhone in your house that you share with a roommate, they would have to prove constructive possession to tie anything found on that device to you. Knowledge of the password, regardless of what the password is, would be protected under the 5th amendment.

In both cases, the authorities could not compel you to incriminate yourself by forcing you to disclose your knowledge of the password to the device.

IANAL either. If you are ever in such a situation, be prepared to sit in prison for 10 years while you work your way through the appellate courts, because you're in for a long battle.

Thanks for the info. That makes sense: if by revealing that you know the password, you are also revealing constructive possession, then your explanation adds up. But if it’s very obvious that it is your phone, which I think is the more common case for some of these situations, it doesn’t, right?

> Even if your encrypted laptop contains evidence, you cannot plead the fifth if the prosecutors know it’s there. As long as they can get a warrant and when they get the data say “see your honor? Here is the evidence we knew was there!”, it doesn’t fall under the fifth.

That sounds like the 'foregone conclusion' doctrine.

When it is a 'foregone conclusion' that the data is present on a device, you can be compelled to produce that data by decryption. However, if you are so compelled, the fact that you were able to decrypt that data can't be used against you. So they will need another way to tie you to the data.

An example is if police saw you had classified documents on your computer (by e.g. a video camera) and later confiscate the computer and find it to be encrypted.

That could work if knowledge of the password itself is all they are trying to pin on you.

Usually, though, they are going to be after what the password is protecting. If you try to invoke the 5th claiming that admitting knowledge of the password itself would be incriminating, prosecutors can grant you immunity over that and that greatly reduces your 5th Amendment protections with regard to that particular subject.

What if they have a warrant? At that point I would argue that you are not self-incriminating. In my mind, it's like if the police had a warrant to search your apartment and you didn't let them in.

More like:

Police: "We have a warrant for your apartment, let us in"

Suspect: "Sorry, I lost the key when I went hiking in the Rocky Mountains, there's no way in. Oh, and be aware that if you try to force your way in more than 5 times, the apartment will catch fire and destroy everything inside"

What would happen in this case? Can the suspect be held in contempt?

Probably obstruction of justice IMHO

Doesn't that require intent and planning? If the arrangements were in place before the crime was even planned, how can it be obstruction?

It's obstruction if they didn't actually lose the key, or the deliberately "lost" the key.

That is a degenerate argument. an apartment is clearly yours. Without your password there is no way to conclusively prove that a phone is yours. SIM cards can be swapped, for example. The incriminating is not stating the password. it is the fact that you are proving the phone as yours.

Phone's have serial numbers tied to the hardware. It's certainly possible to prove that a given phone is the same physical unit that one purchased.

Which does not in any way prove that it is yours. Over my lifetime I purchased over 30 phones. Only two of them are currently mine. If you were to place another one I have purchased, but long ago sold in my possession, that would not be enough to prove that it is currently mine. if I happen to know the password, that might be very convincing.