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From: "Adam H. Kerman" <ahk@chinet.com>
Newsgroups: rec.arts.tv
Subject: Re: Pro police Ninth Circuit ruling shreds several clauses of Fourth and Fifth Amendments
Date: Sun, 21 Apr 2024 21:19:41 -0000 (UTC)
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BTR1701 <atropos@mac.com> wrote:
>Adam H. Kerman <ahk@chinet.com> wrote:

>>The territory of the 9th 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 4th and 5th 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 

>>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.

>Which is why I've always eschewed the face/fingerprint unlock features. 
>Always go with a code.

It's the same problem with being a courrier! "I cannot unlock the
armored case and I don't have the handcuff key." "That's ok. We'll cut
off your hand at the wrist." If it's a body part, you can be compelled
to use it.

But is the Ninth Circuit wrong? Prior to this ruling, could police
compel one to unlock the phone?

Do you agree with the court's differentiation, that if police force the
decryption there's no privacy violation (because it's just like
fingerprinting) but if police order you to do it, you can refuse?

>>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 5th Amendment, and because it happened while in custody, the
>>privilege against self-incrimination is jeopardized and the 4th
>>Amendment also provides self incrimination protection (from Miranda).

>So if he'd used a code, none of this would have happened to him. They 
>would have shouted at him on the side of the road for 10 minutes, 
>demanding the code, but so long as he just kept repeating "I'm asserting 
>my 4th, 5th, and 6th Amendment rights and refuse to answer questions 
>without a lawyer present", there would ultimately be nothing they could 
>do.

This is a practical distinction but I don't see how it's a
constitutional distinction.