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Hey guys, it's Anthony Bandiero Here Attorney and senior legal instructor with Blue to Gold  Law enforcement training, bringing you to the roadside chat from Greenville, Tennessee, where I'm out here for the week teaching. Alright, so this question comes from an officer in South Carolina. And he's asking about, can you compel somebody to provide their fingerprints and or facial recognition to unlock their cell phone? And the answer is yes, the answer is yes. Because fingerprints and facial ID is not testimonial, there is no recognized privacy interests, you know, in your fingerprints in your in your face. So that's generally the case and other, you know, with my legal brain, I'm also thinking of mass facial recognition software, you know, that you're, you're putting downtown, and you're identifying everybody who's downtown, implicates a different constitutional principle, but that's not relevant here. So the point is, is that if you got a court order to basically compel a person to unlock their phone with their fingerprint or facial ID, that would be lawful, that's not a Miranda violation, because it's not testimonial, however, just to get a little more, you know, in depth here, having them provide their password, or even, you know, let's say those like those, the Android type of unlock right, the pattern, that would be a Miranda issue, because the person has to think about their answer. Right. And that's testimonial, and they could incriminate themselves. Now with that, one, you're not going to be able to compel them to provide their password or pattern, unless it's a foregone conclusion. So that's what the doctrine is called. foregone conclusion, a foregone conclusion essentially says this, if you can prove to the court that you know it's on the phone, right, it's not, it's not that you don't know what's on the phone, so that you need the evidence to bolster your case and to prove your elements, then, most likely, they're going to give you a a warrant to basically compel the person to provide their, their password. Now, let me give an example. Let's say a friend of the defendants saw child porn on his phone, he knows his child porn, the guy, the defendant was bragging about it, and so forth. So that's a foregone conclusion, we know that, you know, we have the testimony of the friend and so forth, that the evidence is on the phone. So we can most likely get a, you know, a court order, basically, I call it a search warrant. But really, it's a court order, you know, on threat of contempt to provide the password in order to find the evidence. But that doesn't necessarily mean that you're going to have a free for all on that phone. You know, the court order is going to allow you and you know, in the search bar that goes along with it, it's gonna allow you to recover that evidence that is a foregone conclusion. But you know, if there's other evidence on there, that you don't know about, you're not allowed to, you know, this is in plain view, and you find that during the lawful search, you're not going to just go hog wild on the whole phone and find any, any other evidence. And that's, that's really the challenge. Challenge there. So what's interesting is if you know, defendants use face ID, then the phone is probably free game. But if they use a password, then you have to have the foregone conclusion doctrine, usually, in order to get into it. And even then, it's still limited search under the only things that are foregone. Does that make sense? Kind of weird, right? But that's highly relevant in today's digital age. There's more cases that are coming out and try and try to, you know, set some proper boundaries and give the cops the constitutional tools that they get the evidence, but also not violate the person's rights. So we'll see how this area the law turns out and develops, but there you go. All right. So look, you want to keep doing these videos, three favors, hit the like or comment that tells YouTube that you like what I'm doing. Hit subscribe, so you know when I'm doing more of these, and share with your friends, until next time, my friends stay safe.
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