D.Idaho: Def can be forced to use finger on Touch ID feature to open phone

The USMJ denied an order to compel the target to use the “Touch ID” feature of his cell phone to open it. On appeal to the USDJ, surveying the cases, the court orders the target to use his finger because that involves no thought process involving the Fifth Amendment. In re a White Google Pixel 3 Xl Cellphone in a Black Incipio Case, 2019 U.S. Dist. LEXIS 125243 (D. Idaho July 26, 2019):

Where, as here, the Government agents will pick the fingers to be pressed on the Touch ID sensor, there is no need to engage the thought process of the subject at all in effectuating the seizure. The application of the fingerprint to the sensor is simply the seizure of a physical characteristic, and the fingerprint by itself does not communicate anything. It is less intrusive than a forced blood draw. Both can be done while the individual sleeps or is unconscious. Accordingly, the Court determines—in accordance with a majority of Courts that have weighed in on this issue—that the requested warrant would not violate the Fifth Amendment because it does not require the suspect to provide any testimonial evidence.

See techdirt: District Court Rolls Back Magistrate’s Decision, Says Compelled Fingerprint Product Isn’t A Fifth Amendment Issue by Tim Cushing.

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