Can police get a warrant to force you to use your fingerprint or face ID to open your cellphone?

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GREENVILLE, S.C. (WSPA)- In an opinion dated May 21, the South Carolina Attorney General’s office said it believes South Carolina courts would likely allow police to obtain a warrant compelling a person to use their fingerprint of face to unlock their cellphone.

The opinion was issued in response to an inquiry by Judge Lee Miller, of Greenwood, asking if police can get a warrant compelling a defendant to open their cellphone with fingerprint or facial recognition technology if there is probable cause that it contains evidence.

JJ Jones, who is the executive director of the South Carolina Police Chiefs Association and South Carolina Law Enforcement Officers’ Association, said he’s never seen police use a warrant like that in his nearly three-decade long career in South Carolina law enforcement. He said such warrants could help solve crimes, noting police can already get warrants for things like DNA samples.

“Everybody has cellphones to include criminals…it could be a valuable tool for us to use in the future,” Jones said.

In the opinion, the Attorney General’s office said courts across the country have been divided on this issue. At the heart of the debate is the Fifth Amendment, which says the government can’t compel people to be a witness against themselves in a criminal case. Upstate attorney John Reckenbeil said he thinks issuing a warrant, compelling a person to use biometric data to open their cellphone, would be a violation of their Fifth Amendment rights.

“If there is that evidence on your phone, you’re guilty,” he said. “So how it not testifying against yourself?”

The Attorney General’s office’s opinion on the matter said although it believes courts in South Carolina would not find such a warrant unconstitutional, it said there is some doubt since there’s no clear consensus on the matter.

“A person is going to be with their defense lawyer, and say, ‘I ain’t going to do it.’ So then what do you do? You’re going to go in front of a judge and literally you’re going to throw a non-convicted person in jail for contempt because they won’t give the government evidence against them,” Reckenbeil said.

Both Reckenbeil and Jones agree it’s only a matter of time before the issue becomes more than hypothetical in South Carolina.

“I think it’ll come to a head, and we’ll have an opportunity to try to get a warrant…we’ll see how it plays out in court,” Jones said.

Reckenbeil said he thinks this issue will eventually have to be settled by the U.S. Supreme Court.

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