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The Minnesota Court of Appeals ruled Tuesday that a judges order requiring a man to provide a fingerprint to unlock his cellphone was constitutional, a finding that is in line with similar rulings across the U.S.

The decision comes in the case of Matthew Diamond, who wanted his burglary and theft convictions overturned in connection with a 2014 robbery in Chaska.

Diamonds attorney argued that the district court violated Diamonds Fifth Amendment right against self-incrimination by ordering him to provide his fingerprint to access information on his phone. Police found incriminating evidence on the cellphone after it was unlocked.

This was the first time the Minnesota Court of Appeals has dealt with this issue, but it has come up in other states and federal courts.

In deciding this case, the appeals court examined whether the act of providing a fingerprint to unlock a cellphone is testimonial communication. The judges found that providing a fingerprint is not the same as forcing a defendant to testify against himself. They found it was also not the same as asking a defendant to provide information to decrypt a computer.

By being ordered to produce his fingerprint Diamond was not required to disclose any knowledge he might have or to speak his guilt, the appeals court found.

Instead, the task that Diamond was compelled to perform to provide his fingerprint is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing, the judges ruled.

The court noted that it was making no opinion on whether compelling a defendant to provide a cellphone password would violate the Fifth Amendment.

Mark Rumold, senior staff attorney with the Electronic Frontier Foundation, said cases nationwide have fallen into two camps: those dealing with thumbprint-protected phones and those dealing with passcode protection.

He said courts have found that compelling a fingerprint does not violate the Fifth Amendment, but many have ruled that compelling someone to provide a passcode does because a passcode is information stored in ones mind. Rumold said the means of protecting a phone shouldnt matter.

(Cellphones) are basically this window into peoples mind, he said. I think the Fifth Amendment should evolve to protect it outright.

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MN court: It's OK to require suspects to unlock phones with fingerprint - TwinCities.com-Pioneer Press

A few months ago I wrote a long post, The Fifth Amendment and Touch ID,on whether and how the Fifth Amendment applies when the government seeks to compel a smartphone user to unlock his phone using the fingerprint sensor. I thought I would flag a new case on the subject, State v. Diamond, decided yesterday by the Minnesota Court of Appeals. The Fifth Amendment issues are pretty technical issues, and my earlier post had all the details, so Im going to assume familiarity with that post and go directly into the new case.

First, the easy part: The court concludes that forcing a person to place a particular finger on a phone does not trigger the Fifth Amendment because it is not testimonial. From the opinion:

By being ordered to produce his fingerprint, . . . Diamond was not required to disclose any knowledge he might have or to speak his guilt. See Doe, 487 U.S. at 211, 108 S. Ct. at 2348. The district courts order is therefore distinguishable from requiring a defendant to decrypt a hard drive or produce a combination. See, e.g., In re Grand Jury, 670 F.3d at 1346; United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (holding that requiring a defendant to provide computer password violates the Fifth Amendment). Those requirements involve a level of knowledge and mental capacity that is not present in ordering Diamond to place his fingerprint on his cellphone. Instead, the task that Diamond was compelled to performto provide his fingerprintis no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing. See Doe, 487 U.S. at 210, 108 S. Ct. at 2347-48.

So far, so good.

But theres a twist. The government had sought an order compelling the defendant to unlock the phone with his fingerprint. The trial court had then ordered Diamond to provide a fingerprint or thumbprint to unlock his cellphone. Diamond refused to comply, and the trial court ruled that Diamond had no Fifth Amendment privilege and found him in contempt. The trial judge informed [Diamond] that compliance with the order would remedy the civil contempt. Diamond provided his fingerprint, and police immediately searched his cellphone.

Heres why that matters. On appeal, Diamond argued that the government violated his Fifth Amendment rights because the government made Diamond select which finger to use. Specifically, Diamond argued that he was required to identify for the police which of his fingerprints would open the phone and that this requirement compelled a testimonial communication. As I explained in detail in my prior post, I think this should change the analysis (see the discussions of Case 2 and Case 3).

The court rejected this argument in the following passage:

This argument, however, mischaracterizes the district courts order. The district courts February 11 order compelled Diamond to provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone. At the April 3 contempt hearing, the district court referred to Diamond providing his thumbprint. The prosecutor noted that they were not sure if its an index finger or a thumb. The district court answered, Take whatever samples you need. Diamond then asked the detectives which finger they wanted, and they answered, The one that unlocks it.

It is clear that the district court permitted the state to take samples of all of Diamonds fingerprints and thumbprints. The district court did not ask Diamond whether his prints would unlock the cellphone or which print would unlock it, nor did the district court compel Diamond to disclose that information. There is no indication that Diamond would have been asked to do more had none of his fingerprints unlocked the cellphone. Diamond himself asked which finger the detectives wanted when he was ready to comply with the order, and the detectives answered his question. Diamond did not object then, nor did he bring an additional motion to suppress the evidence based on the exchange that he initiated.

There are two suggested rationales in this explanation. First, the court suggests that Diamond was not required by the order to tell the police which fingerprint would open the phone. Im not sure thats right, though, as it seems that Diamond was required to unlock the phone in the officers presence which necessarily would disclose which finger opened the phone.

Second, the court suggests that Diamond didnt object to carrying out the order. But didnt he? He raised his Fifth Amendment objection, and the court rejected it and found him in contempt. Maybe theres a kind of waiver idea operating here, by which Diamond didnt raise the specific point about which finger to use at the earlier hearing and so he cant raise it now. But given that he did assert his Fifth Amendment right at the time, Im not sure that he should have been required to raise it a second time.

In any event, Im not sure this difference matters to the outcome. I gather from the facts that this was known to be Diamonds phone, and if thats right the foregone conclusion doctrine should apply anyway. In the framework of my earlier post, this would be Case 3 and not Case 2. But it would at least change the analysis somewhat.

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Minnesota court on the Fifth Amendment and compelling fingerprints to unlock a phone - Washington Post

Posted on January 19, 2017

The Minnesota Court of Appeals has produced another wrinklein the contentious matter of privacy rights with respect to biometrically locked mobile devices. The court recently denied an appeal from a convicted burglar who had tried to argue that a courtorder compelling him to unlock his phone for police via fingerprint scan had violated his Fifth Amendment right to protection against self-incrimination.

The Fifth Amendment has generally protected the information American citizens hold in their minds, allowing them to refrain from divulging information that could incriminate themselves; for that reason, it would protect someone from having to tell police his phones lock screen password, if the phone were to contain incriminating evidence. But with the emergence of smartphones fingerprint unlock capability, the question has arisen as to whether the same protections apply.

The Minnesota Court of Appeals says they dont. In its ruling, the court asserted that the previous district court order to make the burglar submit to a fingerprint scan to unlock his phone was no more testimonial than furnishing a blood sample.

Its another example of a court backing the states authority to compel fingerprint unlocks of mobile devices, based on the ideathat fingerprint security is not knowledge-based, but physical. And its another sign that if criminals are going to store any incriminating information in their phones, they probably shouldnt use biometric security it might help to protect them against other criminals, but it wont necessarily offer any protection against the police.

Sources: The Washington Post, Ars Technica

January 19, 2017 by Alex Perala

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Fifth Amendment Doesn't Apply to Fingerprint Security: Minnesota ... - findBIOMETRICS

File this one inthe frivolous lawsuit category! A Clinton voter, Frederic Shultz, from San Diego, California, filed an emergency motion in federal court late Thursday, asking a judge to stop Chief Justice John Roberts from swearing in Donald Trump as President.

The action that Chief Justice Roberts swearing in Trump to be President of the United States, violates Shultzs rights and the rights of all other citizens who voted for Clinton, under the Fifth Amendment and Fourteenth Amendments guarantees of equal protection of the law pertaining to his vote for President, Shultz claims in aactual lawsuit that was filed in U.S. District Court in the Southern District of California. He filed the motion pro se meaning without the help of an attorney. Needless to say, a Courthas not taken action, nor has Justice Roberts or Donald Trump responded.

As weve previously reported, even if Mr. Shultz was successful in preventing Roberts from administering the oath of office, this wouldnt stop Trump. Whilethe Constitution does require the President to take theOath of Office, the Chief Justice is not necessarily required to administer it.

After Kennedys assassination, a federal district judge in Texas administered the oath to Johnson,Ned Foley, an election law professor at the Moritz School of Law at Ohio State Unitversity toldLawNewz.com.

Any judge or even another authority could do so,Norman Ornstein, with the American Enterprise Institute toldLawNewz.com.

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Clinton Voter Files Emergency Motion to Prevent Justice Roberts from Swearing in Donald Trump by LawNewz on Scribd

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Clinton Supporter Files Emergency Motion to Prevent Justice Roberts from Swearing in Trump - LawNewz

The Fifth Amendment protects individuals from incriminating themselves, but a Minnesota court has ruled it does not apply when a suspect is ordered to provide a fingerprint to unlock a cell phone.

Giving a fingerprint is akin to standing in a lineup, not revealing a password, the Minnesota Court of Appeals found on Tuesday.

The three-judge panel ruled against Matthew Vaughn Diamond, who was convicted in 2015 of theft, burglary and criminal damage to property after the Carver County District Court threatened to hold him in contempt if he refused to offer his fingerprint to unlock his cell phone. Incriminating evidence was subsequently discovered on the device. The phone had been the subject of a search warrant.

Diamond was not required to disclose any knowledge he might have or to speak his guilt, Judge Tracy Smith wrotein the courts opinion, adding, The district courts order is therefore distinguishable from requiring a defendant to decrypt a hard drive or produce a combination.

Smith cited Supreme Court precedent in the 1988 case Doe v. United States, where the high court wrote, in order to be testimonial, [a criminal defendants] communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a witness against himself.

A 2010 federal case, United States v. Kirschner, resulted in a ruling that found requiring a defendant to supply a computer password did, in fact, violate the Fifth Amendment protection against self-incrimination.

[T]he task that Diamond was compelled to performto provide his fingerprintis no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing, Smith wrote in Tuesdays decision.

We express no opinion regarding whether, in a given case, a defendant may be compelled to produce a cellphone password, consistent with the Fifth Amendment, she continued.

Diamond has been sentenced to 51 months in prison.

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Man loses 5th Amendment appeal after forced to unlock phone with fingerprint - RT