In a follow up to my earlier post indicating this was an issue of first impression in California, a San Diego Superior Court Judge ruled that the compelled disclosure of the defendant’s pass code violated the Fifth Amendment. Since the court determined, partly relying on U.S. Supreme Court precedent, that providing a pass code is akin to supplying the combination to a safe, it was testimonial in nature (in contrast to supplying the key to a safe- which has been found to be constitutionally permissible as “non-testimonial.” In other words, providing a fingerprint for the Touch ID feature to unlock the phone would have been legal, i.e handing over a key, but having to provide a pass code is not). Thus, an exception had to apply for the evidence to be admissible, such as the inevitable discovery doctrine. Through expert testimony related to iPhone security features, it was determined that law enforcement neither would have nor could have inevitably discovered the evidence they were seeking to introduce. Ultimately, the court suppressed everything extracted from the phone.
I was very fortunate to be part of the defense team working on this very important Fifth Amendment issue. With the popularity of smart phones and advancement of security features, the relationship between the government and the rights of citizens continues to become increasingly complex.
Unfortunately, news outlets did not thoroughly or accurately report on this very significant legal ruling, but here is an article covering the case.