Can Police Make You Unlock Your iPhone with Your Face?

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Facial recognition technology is touted as the newest security feature on some of the latest model smart phones, like Apple’s iPhone X. Just like its earlier Touch ID system, which authenticated the user through a sensor which read your fingerprint and compared it to the one you had registered in the phone’s security system, Apple’s new Face ID system uses a minuscule infrared sensor to scan your face, create a three-dimensional mathematical model of your face, and match it to the version stored in the phone’s memory.

But suppose a police officer stops you, for one reason or another, or a government investigator pays you a visit. A 2014 Supreme Court decision (Riley v. California) says 4th Amendment search provisions forbid searching a suspect’s cell phone without a warrant. Chief Justice Roberts, who wrote the decision, said cell phones are essentially mini-computers, and differentiated them from less private types of items that may generally be seized and searched. Lower courts have also reasoned that you can’t be required to give your cell phone’s password to a government searcher; that would violate their 5th Amendment right against self-incrimination.

Civil libertarians have warned facial recognition technology may threaten constitutional rights. Some point with alarm to its potential to facilitate stepped-up monitoring of citizens. For instance, during the 2015 riots in Baltimore following Freddie Gray’s death in police custody, city police reportedly used facial recognition technology on tapes of crowd scenes to try to identify persons with outstanding warrants.

Even increasing investigators’ access to suspect cell phones could raise constitutional issues. It would be easy to imagine a detective holding a smartphone equipped with Face ID or a similar facial recognition system up to its owner’s face while asking, “Is this your phone?” That could instantly unlock the device, opening it to investigators. But would that be lawful?

Some courts have allowed the government to make suspects supply a fingerprint needed to unlock a cell phone, if they have “reasonable suspicion” tying the suspect to a crime. It would likely be easier for investigators to unlock a suspect’s cell phone by getting a facial scan than by having to get a fingerprint (much less knowing which finger to use, since multiple tries with a different finger can shut down fingerprint authentication programs).

Facial recognition features on smart phones aren’t new; some Android phones have used the Face Unlock app since 2011. Some phone users point out that, on many phones, there may already be built-in methods for phone owners to disable fingerprint or facial recognition systems. I’ve already mentioned multiple wrong-fingered attempts to authenticate the phone user can shut down some facial ID systems, leaving having the password the only way to access the phone.

Other smart phones will shut down fingerprint or facial recognition features, thus requiring the password, if the phone is powered down, or the power/wake button is pressed five times in quick succession (in tweets, some computer users, perhaps with other interests, have taken to calling this the “cop button.”)

At present, there’s no clear answer to the question of investigators’ legal ability to use your face to access your cell phone, and there’s not likely to be one until definitive rulings begin to emerge from the courts.

Crystal Meth or Donut Glaze?

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Last April, I wrote about here the tale of Daniel Rushing, the Florida retiree who was pulled over by Orlando police as he drove out of a 7-11. Though the cops first said they stopped him for not coming to a complete stop before entering traffic and travelling 12 miles over the speed limit, it turned out they were staking out the location, after area residents complained about drug activity there.

When Rushing handed over his license, the police noticed his wallet also held an out-of-state concealed-carry permit. Asked if he had a gun in his car, the former city parks employee in his mid-60’s said he did. The police then started search his car – and that’s when the real trouble started.

Though having his gun in the car was perfectly legal, one of the cops soon discovered what she took to be evidence of a serious drug crime. Specifically, she detected on the driver’s side floorboard near the spot for the driver’s feet a few pieces of a shiny, rock-like white substance. At first, she thought it was crack cocaine, but soon decided it was crystal methamphetamine.

The driver offered a different explanation for the mysterious substance: once a week, he drives a sick friend to a chemotherapy appointment. After that, he often picks up a treat, usually a glazed doughnut, at a nearby Krispy Kreme shop, and eats it in his car. So, the objects triggering the cop’s suspicions weren’t cocaine or meth, but instead flakes of doughnut glaze.

But the drug-hunting cops next performed a field test on the mysterious substance, got a positive reaction, and were soon bundling Rushing in handcuffs to the county jail, where he was strip-searched, locked up for 10 hours, and delayed six hours in taking anti-pain medicine for a back injury. Eventually released on bail, he was charged with possessing methamphetamines; the presence of a gun escalated the maximum penalty from five years to 15.

Field tests like the one given Rushing are cheap — usually about $2 – but far from precise (they’re not accepted as evidence in most courts, because many innocent substances can produce false positives), plus they require careful use (the meth field test Orlando police use requires two separate chemicals; if applied in the wrong order, results are worthless). When more detailed and reliable testing results came in from a state lab a few days later, no controlled drug was found to be present, and the charges against Rushing were dropped.

But the second-degree felony drug and firearms arrest was still on his record, which stymied his efforts to start a security consulting business. Rushing sued the Orlando police, and the maker of the roadside drug testing kit they used. His case was helped by state police data showing in over a fifth of cases where local cops turn over suspected meth for testing, the sample turns out not to be meth. While the county initially defended the arrest and testing, before year’s end they paid Rushing a $37,500 settlement, and hundreds of Orlando police got added training on field testing for drugs.

 

Do Not Talk to the Police

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If there is one piece of information I wish my clients had when they are the subject of a criminal investigation, it is not to speak to the police. If you might be a suspect, you may find the officers attempting to engage you into questioning. Although it might be obvious that an officer suspects you have committed a crime if the questioning accompanies the search of a house or a car, other tactics are more deceptive. Sometimes, police will call you and ask you to come to the precinct for questioning. Officers will say this is “routine,” or that they want to get your side of the story.”

No matter the reason given, the officer is not trying to help you. The officer is looking for an opportunity to question you and for you to make a statement that will hurt any future defense you may have.

 

Statements Can Harm Your Case

For the prosecution, some of the strongest evidence in a criminal case is an admission or other statements made by a defendant. Juries and judges alike will rely heavily on any statements you might make to police, which is why prosecutors and cops will try very hard to make sure you make ones that help their case.

Police will try to get you to give a written admission of your alleged crimes as this is the strongest piece of evidence they can enter against you in your case, but that is not the only tool in the police arsenal. Police can also draft reports of any statements you make in their presence, and even if their recollection of your statements, the inflection of your tone, or the meaning of your words doesn’t match with your own, judges and juries are frequently biased to believe the officer.

Even if your statement doesn’t include an outright admission of the crimes, it could include statements that contradict key defenses in your case. For example, you may misstate a name of an alibi witness or describe events differently than you will later at trial. Any inconsistencies can lead a fact-finder to believe that you are untrustworthy or just outright lying.

 

Your Statements Will not be Perfect

No matter how much you think you have prepared your would be statement to police, it will not be the perfect, exonerating statement you are seeking. Your statements are subject to your memory, how well you remember now, how well you remember under the pressures of police questioning, and how well you can remember facts months later during trial. Any inconsistencies will be picked apart by the police and by prosecutors. If, for example, your alibi is that you were at home watching a particular TV show, but it was actually a different show entirely, this inconsistency could poke major holes in your alibi defense.

Your statement will also be subject to your own biases. What you feel is a fact that makes you look less guilty may make you look very suspicious when viewed in someone else’s perspective. Police are trained in exploiting your biases to encourage you to say more than you should. For instance, they might encourage you to describe what you witnessed in the hopes you will mention details that they think only the suspect responsible would know, and those details will be used against you at your trial.

 

Statements Can Make You Look Guiltier

Even if you are innocent and feel you have nothing to hide, if you are the subject of a police investigation, it’s unlikely you will give a statement that will help your case. Police are trained at interrogation techniques and can ask questions that can lead you into giving an answer that makes it appear you are admitting to the crime or to some part of it. Or, at the very least, the interview can lead to answers that can be used at trial to attack your defense or used against you to make you seem dishonest, and therefore more likely to commit a crime.

Even if you think that you won’t be giving the police anything important, you could easily give them a detail that is key to their investigation. Unfortunately, you can’t know what the police are investigating, specifically, or what small, seemingly insignificant piece of information you could give would help them to build a stronger case against you.

Yes, talking to the police could give you an opportunity to tell your side of the story, but doing so before you’ve had a chance to talk to an attorney, going to the police without an attorney, or going after you know the police have been investigating you can be potentially disastrous for your future case.

 

Can the Police be Lenient if I give a Statement?

Sometimes the police will imply that, if you give them a statement, they will be lenient in your case or that the state will give you a lighter sentence or better deal. This is incredibly misleading because the police do not have the power to go easy on your case. Although the police will be the ones investigating and gathering information on a crime, they have little to no discretion when it comes to your charges, and the final decision of your conviction would fall to the judge or jury.

Only the prosecutor in your case can make the final call on charging decisions, and they are not bound to uphold any promise a police officer may have made to you. In fact, prosecutors are less likely to offer plea deals and reduced charges if they have enough evidence to prove their case for more serious charges, evidence you may have provided in your statement to police.

Giving a statement to police may mean the officer, when testifying at your trial, will note that you were cooperative with the police’s investigation, but it’s unlikely to be any more beneficial to your case. It is important to remember, in any interaction with police, that they may offer you deals out of good intentions or genuinely want to get your side of the story. However, it is more likely that these officers are simply using coercive, even false, tactics to get you to offer up a statement against your own interests.

Out-of-State License Plates Don’t Justify Pot Search, Appeals Court Rules

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A federal appeals court, in Vasquez v. Lewis, has ruled that members of Kansas Highway Patrol cannot stop motorists and search their vehicles for marijuana merely because the vehicle has plates from a state with legalized marijuana use.

Very late one night in mid-December 2011, Peter Vasquez was driving into eastern Kansas on I-70 in a recently purchased 1992 BMW sedan with temporary Colorado tags taped to the inside of the tinted rear window. Because they could not clearly read the tag, the officers hit the patrol car’s flashers to pull Vasquez over. The officer who went over to Vasquez’s car to check his license and registration asked about blankets and a pillow he saw in the car, thinking something might be concealed under them, and was told that Vasquez lived in Aurora, Colorado but was moving to a new home in Maryland.

Back at the patrol car, the officer told his partner that Vasquez seemed nervous. The other officer then went over to the BMW and asked a number of questions about Vasquez’s employment, other cars he owned, and his moving plans. He then asked if Vasquez had any drugs in the car. Told that was not the case, the officer asked if Vasquez would consent to a search. When Vasquez refused, the officers detained him and called for a drug-sniffing dog, but no suspect substance was found.

A lower court dismissed the case Vasquez filed a few months later claiming the search was unjustified and so had violated his civil rights; the decision held the state highway patrolmen did not depart so much from their duties to lose all immunity to being sued.

But when Vasquez’s appeal reached a three-judge panel of the 10th Circuit, the case was reinstated. By a 2-1 margin, the appellate court this August rejected all the varied factors Kansas had cited as justification for conducting the drug search after the initial stop for an unreadable license tag.

The appellate court majority concentrated its fire on what it termed the “most troubling” of these: that Vasquez was coming from Colorado, described as a “drug source area,” on I-70, a highway Kansas called a “known drug corridor.”

The stop and search occurred a year before Colorado voters approved a ballot measure allowing personal use of marijuana, and several years before that law took effect. But state voters authorized medical marijuana in 2000, and numerous marijuana dispensaries were operating in the state.

The unpersuaded appellate court called that argument, alone or in combination with other claimed justification factors, “unconvincing” and “anachronistic” as grounds for inferring a reasonable suspicion for a search. 

Justifying a search on the basis of a citizen’s state of residence would, the court held, offer a rationale for searching persons from half the states in the union (since 25 states authorize medical marijuana), adding that to assume a person would be more likely to commit a crime based on where he or she made their residence would be “wholly improper,” so out-of-state plates should not offer any reasonable basis for a non-consensual search.