W.D.N.Y.: Getting def to unlock his phone wasn’t unreasonable because the SIM card would have been forensically searched later anyway

It was reasonable for POs to search defendant’s unapproved cell phone without a search warrant as a probation search. Making him use his face or get the password to unlock the phone was not unreasonable because the contents of the SIM card would have been inevitably discovered in a forensic search. United States v. Jackson, 2020 U.S. Dist. LEXIS 28200 (W.D. N.Y. Feb. 19, 2020):

Considering the relative novelty of facial recognition software, the paucity of authority addressing constitutional issues arising therefrom is unsurprising. See, e.g., In re Search of [Redacted] Washington, D.C., 317 F. Supp. 3d 523 (D.D.C. 2018) (addressing constitutional implications of compelled use of biometric features to unlock electronic devices). This Court need not wade into these murky waters in this case because the record demonstrates that the contents of the unapproved phone and the SD card would inevitably have been searched even without the use of Jackson’s face or the passcode he provided.

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The hearing testimony demonstrates that even if Diamond had been unable to access the unapproved phone on May 8, 2018, he would have seized it and the SD card in it and provided them to Harrington to conduct a forensic search. Diamond credibly testified that he always seized any unapproved electronic device found in the possession of any parolee whom he supervised. (Tr. B 12-14). He also testified credibly that he would have provided the phone to Harrington for a forensic review even if he had not been able to access it with Jackson’s compelled assistance. (Tr. B 5-7, 15).