Two Florida detectives tried to use a dead man’s fingerprints to unlock his phone, the Tampa Bay Times reported, and that act raised privacy questions.
Linus F. Phillip “was shot and killed [by a Largo, Fla., police officer] March 23 at a Wawa gas station after police said he tried to drive away when an officer was about to search him,” the Times reported. Later, two detectives came to the Sylvan Abbey Funeral Home in Clearwater with Phillip’s phone, according to Phillip’s fiancee, Victoria Armstrong. “They were taken to Phillip’s corpse. Then, they tried to unlock the phone by holding the body’s hands up to the phone’s fingerprint sensor,” the Times reported.
Phillip’s fiancee is upset. She was not notified that the detectives would be coming to the funeral home, and the police did not get a warrant for their actions.
Although the detectives’ actions have been criticized as unethical, they are legal because dead people have fewer rights than the living, especially concerning privacy and search and seizure. The courts have split on whether living defendants can be forced to use biometrics such as fingerprints or facial scans to unlock their mobile devices. (Another difference from the Phillips case is that these court cases involved warrants.)
Southampton Law School’s Remigius Nwabueze told the Times about the result of a Michigan case concerning consent for extracting blood from a dead person.
In a 1978 case, Hubenschmidt v. Shears, the Michigan Supreme Court considered whether “the results of a test for alcohol content of a blood sample taken from a dead body may be admitted as evidence in a wrongful death action brought by or against the decedent’s representative.” The court found, “The removal of blood from a dead body for purposes of testing was not unreasonable under the circumstances and does not shock the conscience or our sense of justice.” Also, the court said, “we can find no legitimate basis for the argument that a decedent’s representative can claim, in a civil case, that the nonconsensual blood extraction from an already dead body amounted to an illegal search and seizure. Certainly there is no possible claim concerning the constitutional protection against self-incrimination.”
The nonconsensual blood draw in Hubenschmidt is more invasive than the nonconsensual attempted fingerprint scan in Phillips’ case, so courts would likely approve the warrantless attempted fingerprint scan by detectives.