Path: ...!eternal-september.org!feeder3.eternal-september.org!news.eternal-september.org!.POSTED!not-for-mail From: "Adam H. Kerman" Newsgroups: rec.arts.tv Subject: Pro police Ninth Circuit ruling shreds several clauses of Fourth and Fifth Amendments Date: Sun, 21 Apr 2024 18:38:58 -0000 (UTC) Organization: A noiseless patient Spider Lines: 80 Message-ID: Injection-Date: Sun, 21 Apr 2024 20:38:59 +0200 (CEST) Injection-Info: dont-email.me; posting-host="41acae05925950650f15b6c908292bfd"; logging-data="479892"; mail-complaints-to="abuse@eternal-september.org"; posting-account="U2FsdGVkX19IBUiaODd9vQSLswbMn/ZapDd5lMCFcjc=" Cancel-Lock: sha1:TnMEETiaTG/0T8fxmealQpK3CLs= X-Newsreader: trn 4.0-test77 (Sep 1, 2010) Bytes: 4754 The territory of the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana Islands, and sometimes American Samoa) is now free of pesky clauses of the Fourth and Fifth Amendments, the ones protecting against warrantless searches and self incrimination. Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone The 9th Circuit determined that forcibly mashing a suspect's thumb into his phone to unlock it was akin to fingerprinting him at the police station. by Joe Lancaster Reason 4.19.2024 12:50 PM https://reason.com/2024/04/19/appeals-court-rules-that-cops-can-physically-make-you-unlock-your-phone/ Steve Lehto video if you don't want to read the article: https://www.youtube.com/watch?v=quV4JSKnf9Y Note that the appellee was a parolee, but nothing about this ruling truly limits it to persons who are not in prison but still under sentence like probation or parole. The contents of a cell phone were searched without a warrant. Because the phone's owner used a biometric to unlock -- thumbprint -- the court ruled that the phone's owner had NO PRIVACY as obtaining the fingerprint placed it in the same category as taking fingerprints at booking. (The ruling also said it was akin to "drawing blood", even though there is a 2016 Supreme Court ruling that warrantless blood tests of suspects in North Dakota law are unconstitutional.) California Highway Patrol pulled over a vehicle for a window tinting violation. The driver admitted to being on parole. He was handcuffed. They took his cell phone. While handcuffed, they forced him to provide the thumbprint to unlock the phone. Now, parole conditions he was subject to allow warrantless seizure of electronic devices. However, unlocking the device was not a parole condition. They found a video in which they saw blue pills which they suspected were fentanyl. I guess an experienced police officer might say the pills looked like contraband but I have no idea how he can claim to know what contraband it is from an image. On the phone was a map to an address, which they suspected was a home address. (It doesn't say they confirmed with parole records that this was the man's home.) Using his own keys, they entered, searched, seized drugs. The man was charged with possession with intent to distribute. The man argued that forcibly obtaining the thumb print was a compelled testimonial communication in violation of the self-incrimination clause of the Fifth Amendment, and because it happened while in custody, the privilege against self-incrimination is jeopardized and the Fourth Amendment also provides self incrimination protection (from Miranda). He lost. Judge Tallman, who wrote the opinion, made a bizarre distinction of when the right against self incrimination is PRESERVED under the Fourth and Fifth Amendments: Tallman does note the peculiar circumstances of the case: "Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device." But, he adds, "the outcome...may have been different had [the officer] required Payne to independently select the finger that he placed on the phone" instead of forcibly mashing Payne's thumb into it himself. Let's think about this. Because the police officer took control of the bodypart, the person in custody lacks protections of the Fourth and Fifth Amendments against self incrimination. But if the person is in custody but the police officer doesn't use physical force in the biometric unlock, just a verbal command, then the evidence would have been suppressed. What if a retina scan were the required biometric unlock? With a completely uncooperative suspect trying to preserve his privacy because he thinks the constitution still applies, could the police have cut out an eye?