North Carolina Criminal Law Blog

Apple just introduced the iPhone X, a new high-end smartphone. The phone can be unlocked using facial recognition, just as current iPhones can be unlocked using a fingerprint scanner. According to Forbes, the phone “uses a combination of light projectors and sensors to take several images of your facial features,” then compares the face of a person seeking to unlock the phone to the “depth map” it has created. I wrote here and here about the Fifth Amendment implications of fingerprint scanners. The few courts that have addressed the issue have mostly agreed that a suspect can’t be required to provide the passcode to a phone, absent unusual circumstances, because that would violate the Fifth Amendment’s privilege against self-incrimination. However, courts mostly have held that a suspect may be ordered to press a finger to the phone because doing so is not “testimonial” and so is outside the scope of the privilege. I thought that this would be a good time to consider facial recognition and the Fifth Amendment, and to provide an update on a recent case that reaches a different result than most other decisions to date.

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Can a court order a suspect to use the suspect’s fingerprint to unlock his or her smartphone? Or would that violate the suspect’s Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion.

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I’ve written before about whether a court may order a person to provide a password to a computer or a passcode to a phone to enable an officer to complete a lawful search, such as one pursuant to a search warrant. But passwords and passcodes are so old-fashioned. The cool kids are all using biometric data like fingerprints to secure their devices. So, may a person be required to unlock his or her device using a biometric identifier? Yes, said one court recently.

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[Author's note: The North Carolina Supreme Court in Herndon v. Herndon, 368 N.C. 826 (2016), reversed the court of appeals' decision discussed below. The state supreme court held that the trial court's actions did not amount to a constitutional violation. The court concluded that the defendant did not invoke the privilege against self-incrimination and the trial court inquired into matters that were within the scope of the defendant's testimony on direct examination.] A recent court of appeals decision has stirred up a lot of discussion on our hall about the scope of the Fifth Amendment right to be free from self-incrimination. The case is Herndon v. Herndon, __ N.C. App. __ (October 6, 2015), and it arose from a defendant’s appeal from the entry of a domestic violence protective order against her.  Before the defendant testified in the hearing to determine whether acts of domestic violence occurred, the presiding judge cautioned the defendant’s attorney:  “I’m not doing no Fifth Amendment.”  There’s really no question that the warning was, as one appellate judge put it, “less than artful,” but did it violate the defendant’s rights?

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The first ten amendments to the U.S. Constitution are commonly known as the Bill of Rights and were ratified on December 15, 1791. It is remarkable how many of these […]

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Suppose in a robbery case that the State asks the defendant–who does not plan to testify–to stand in the courtroom wearing a mask allegedly worn by the robber. The defense […]

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Several years ago, I blogged about a case in which the government sought to compel a criminal defendant to provide the password to his encrypted computer, or at least, to […]

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Normally, field sobriety tests are administered before an arrest is made, as part of an officer’s investigation into a possible DWI. In that case, it’s clear that the officer need […]

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Suppose that an eyewitness testifies for the state on direct examination that he saw the defendant snatch an old woman’s purse and run off. The defense cross-examines the witness about […]

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