Constitutional issues raised by the information age

Judges in South Carolina and around the country take the protections guaranteed by the Fourth and Fifth Amendments seriously. That’s why evidence gathered during warrantless searches or coercive interrogations is unlikely to withstand scrutiny unless the police officers involved have compelling arguments. However, the law has sometimes been slow to respond to challenges raised by new technology. Most cellphones contain extremely sensitive information about their owners, but the degree to which the U.S. Constitution protects this data remains uncertain.

District court rulings on the issue have been inconsistent. Federal judges have ruled that police officers may not compel suspects to reveal their usernames or passwords, but they have allowed officers to force electronic devices open using facial recognition technology, fingerprint scanners or other biometric systems. Fifth Amendment protections apply to surrendering a password because it is a voluntary act and considered testimony.

These matters were recently raised in a California case. A U.S. District Court for the Northern District of California judge rejected a search warrant application that would have allowed police officers to use biometric identifiers to open any electronic device found in a location that was to be raided. The judge based her decision on the law dealing with polygraph tests. During these tests, biometric information gathered from suspects connected to polygraph machines is considered testimonial.

An experienced defense attorney may seek to have criminal charges dismissed when police officers have conducted searches, forced electronic devices open or compelled suspects to provide blood, breath or DNA samples without first obtaining a search warrant or court order. Legal counsel could also seek to have evidence ruled inadmissible and excluded when routine traffic stops were prolonged to allow backup units and drug-sniffing dogs to be called to the scene.