The two common Fourth Amendment exceptions that are part of this Discussion Board are consent and probable cause. Both aspects should be articulated in your answer.
The Fourth Amendment protects people from unreasonable searches and seizures. Taking fingerprints from a person is considered to be a seizure and it must be done with probable cause or consent. With probable cause, police are allowed to take a person’s fingerprints and photograph, and record and maintain records of them. Consider how these same standards apply to other aspects of biometric data.
Identify one biometric characteristic other than fingerprints (e.g., eye scanning, facial scanning, etc.) and explain how the Fourth Amendment would apply to the collection of that data.
Under what circumstances might law enforcement be able to compel the collection of other biometric data?
Why would the collection of those biometric data be considered reasonable?
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Fourth Amendment Exceptions and Collection of Biometric Data
The Fourth Amendment to the US Constitution prohibits law enforcement officers from trampling upon the rights of the citizens to unreasonable searches and seizures. However, there are two exceptions to this prohibition. These include where the officers have a reasonable cause for the searches and seizures or get the consent of the person in question (Donohue, 2016). Probable cause allows police to seize a person’s photograph and fingerprints. However, other biometric data such as facial-recognition need to be obtained with a warrant unless the law enforcement officers have a probable cause.
In the case of facial recognition, as a biometric characteristic, seizing such data without a warrant is considered a breach of the Fourth Amendment right. Notably, a federal judge in Oakland recently made a ruling to the effect that law enforcement agencies are disallowed from compelling individuals/suspects to use facial recognition to unlock their phones and other devices without a warrant (Baron, 2019). According to the judge, the government cannot compel individuals at the time of search to utilize their biometric features such as facial or iris recognition to unlock their digital devices (Baron, 2019). Such a practice is viewed as a breach of Fourth Amendment rights.
Despite the judgement that law enforcement officers cannot compel individuals to use their facial recognition without a warrant, the exception to this rule is that the plain view doctrine. In Washington v. Chrisman , the Court held that law enforcement officers, who are in a position to have a plain view of some evidence, can seize it without a warrant. However, in Steele v. United States , it was the position of the Court that for the plain view doctrine to apply, the officers must have probable cause hence demonstrating how the plain view doctrine is limited. In the case of facial recognition, where the law enforcement officers have viewed some evidence of a crime, they may compel the use of facial scanning to unlock an electronic device.
One of the exceptions to the Fourth Amendment rights is where law enforcement officers have reasonable grounds to compel suspects to use facial recognition without a warrant. The collection of biometric data would be considered reasonable if a law enforcement officer has reason to believe that criminal activity is ongoing (Burke, 2015). In such a situation, the police officer can without a warrant take the biometric of such a person such as his facial recognition. Notably, in Terry v. Ohio , the Court held that police officers can make a limited search and seizure but only if there are reasonable grounds to suspect the continuance of criminal activity. Additionally, the collection of facial recognition evidence will be considered reasonable where there are exigent circumstances, such as when the suspect was trying to escape.
In conclusion, although the general rule is that citizens are protected against unreasonable searches and seizures, law enforcement officers are allowed to conduct searches and seizures without a warrant on reasonable grounds. Facial recognition without a warrant is one of the biometrics which requires a warrant before police can compel suspects to produce such information. However, police conduct would be considered reasonable in compelling persons to give their biometrics, if there are exigent circumstances that require the collection of such data without a warrant.
Baron, E. (2019). Government can’t force people to unlock phones using facial recognition, fingerprints: federal judge. Mercury News. https://www.mercurynews.com/2019/01/15/government-cant-force-people-to-unlock-phones-using-facial-recognition-fingerprints-federal-judge/#:~:text=A%20federal%20judge%20in%20Oakland,law%20enforcement%20over%20users’%20privacy.
Burke, A. S. (2015). Consent Searches and Fourth Amendment Reasonableless. Fla. L. Rev., 67, 509.
Donohue, L. K. (2016). The Original Fourth Amendment. The University of Chicago Law Review, 1181-1328.
Steele v. United States  267 U.S. 498.
Terry v. Ohio  392 U.S. 1.
Washington v. Chrisman  455 U.S. 1.