Agent may place suspect’s finger on smartphone to unlock it
Police are allowed to hold fingers of a reluctant suspect against a fingerprint scanner of a smartphone to unlock the device and access the device’s information. That is the decision of the court of Noord-Holland.
A suspect of phishing and participation in a criminal organization refused to unlock his iPhone during the investigation. The police wanted to view the contents of the device because it was expected that it contained important information about facts of which the suspect was suspected. Officers then decided, with the permission of the public prosecutor, to put handcuffs on the suspect and hold the iPhone against his thumb. The iPhone then unlocked and the police could access the data.
The defendant’s lawyer argued that the files found on the iPhone should be excluded from evidence. According to him, the police’s conduct was contrary to the right to physical integrity and the principles of proportionality and subsidiarity. The defense was also that there was a violation of the right to respect for the privacy and privacy of the accused. Above all, forced unlocking would go against the principle of nemo tenetur, which states that a suspect cannot be forced to actively cooperate in his own conviction.
The judge did not agree. In 2016, there were no technical possibilities for the police to unlock the relevant type of iPhone and placing the thumb on the sensor only constituted a limited violation of his physical integrity, according to the court. There is also no violation of the nemo tenetur principle, the court ruled: “This concerns the toleration of an investigative measure that does not require the active cooperation of the suspect.” The court clarified that the judgment would have been different if the suspect had been forced to give the access code of his telephone. In doing so, the court refers to case law of the European Court of Human Rights, which shows that the principle mainly relates to making statements under duress.
Three men were arrested in the case who stole debit cards and PIN codes from victims in 2015 and 2016. They withdrew large sums of money. They were sentenced to prison terms ranging from 198 to 219 days and community service ranging from 180 to 240 hours. They must also compensate the damage suffered by one of the victims.