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Marsh Halberg

Marsh Halberg

"Attorney of the Year" (Minnesota Lawyer 2011)

"Top Six Criminal Defense Attorneys" (Mpls/St.Paul Magazine)

"Super Lawyer" (1997-Present)

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Tina Appleby

Tina Appleby

Achieved jury acquittals / case dismissals / successful resolutions in over 2,000 cases

"Top 100 National Trial Lawyer"

"Who's Who in Criminal Law"

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Lucas Dawson

Lucas Dawson

"Super Lawyer Rising Star 2017, 2018 and 2019

Requested speaker at Minnesota CLEs

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Zach Graham

Zach Graham

J.D. St. Thomas School of Law, cum laude

Achieved successful outcomes for clients in district court and on appeal

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Eric Nelson

Eric Nelson

"Rising Star" from 2004-2013

"Super Lawyer" 2014, 2015 2016, 2017, 2018, and 2019

Named one of the "TOP 40 UNDER 40" by the National Trial Lawyers' Association

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Doug Hazelton

Doug Hazelton

"Best Lawyers in America" (2008-Present)

"Super Lawyer" (2008-Present)

Author Minnesota DWI Handbook (West Publishing)

Author Minnesota DWI Survival Guide

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Debbie Lang

Debbie Lang

2012, 2014, 2015, 2016 and 2017 "Super Lawyer Rising Star"

"Top 100 National Trial Lawyers" by the National Trial Lawyers' Association

1 of 50 Minnesota Society for Criminal Justice Members

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Dave Risk

Dave Risk

Eight-Time Award Winner of "SuperLawyer - Rising Star"

J.D. William Mitchell College of Law magna cum laude graduate

2014, 2015 and 2016 "Super Lawyer"

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Christina Zauhar

Christina Zauhar

Member of Minnesota Women Lawyers

Member of the Minnesota State Bar Association

Contributing Author to Minnesota DWI Deskbook

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Biometric Access - Is a Warrant Required?


HomePractice AreasBlogs - Biometric Access

Whether you use an iPhone, Samsung Galaxy, or some other type of smartphone, chances are your device utilizes some type of biometric unlock option for security. This could involve fingerprint, iris scanning, or facial recognition technology.

Because smartphones are basically handheld computers, they often contain a wealth of information about their owners.  This is why police will routinely attempt to seek access to an arrestee’s smartphone data, either by consent of the owner or through the warrant process.

Before a search can be conducted, however, police still need either the owner’s password or his/her biometric data or the contents of the smartphone will remain inaccessible.

In most states, police cannot require a person to provide the password to a seized smartphone – even with a warrant – since doing so is considered compelled testimony that is protectedunder the Fifth Amendment.

But some courts have held that the same Fifth Amendment protection does not extend tobiometric security features, in effect rendering them less secure than a password.

However, a federal judge in California recently ruled that an individual cannot be compelled by law enforcementto unlock a phone with biometrics. 

The case considered whether police could obtain a search warrant compelling anindividual present to “press a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition, for the purpose of unlocking the digital devices found in order to permit a search of the contents…”

The judge, in denying the warrant application, found no real distinction between biometric features and a password. “If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,”

In other words, compelling someone to use their body to unlock a phone counts as self-incrimination and is protected under the Fifth Amendment. 

Clearly, this is not the final word on the issue. Until the issue is decided by the United States Supreme Court – likely several years from now – law enforcement will continue to compel criminal suspects to provide biometric features to unlock their smartphones.

So, for Fifth Amendment purposes, using an ‘old school’ password – not biometrics – is still the best way to protect your data.

If you find yourself in a legal situation involving a search and seizure of your person or property, you need a criminal attorney with deep legal knowledge and a willingness to fight on your behalf. At Halberg Criminal Defense, our team approach puts the firm’s collective knowledge and experience on your side. Our lawyers are available 24-7 — Call us at 612-DEFENSE (612)-333-3673.

Contact us for a free consultation

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