Judge Rules Police Can Physically Force Suspect to Unlock Phone

District court judge allows Tel Aviv police to use 'reasonable force' on drug trafficking suspect to unlock his fingerprint-protected cellphone in order to search for evidence ■ Lawyers warn decision violates right to avoid self-incrimination

ARCHIVE - Police station in central Israel
David Bachar

A Tel Aviv judge has ruled that police officers may force a suspect to use his fingerprint to unlock his mobile phone during the course of an investigation.

In an unusual decision, issued two weeks ago but only cleared for publication Thursday, District Court Judge Tali Haimovich allowed the Tel Aviv police to force a drug trafficking suspect to unlock his fingerprint-protected cellphone, in order to search for evidence.

Haimovich was ruling on the appeal of an earlier ruling by Tel Aviv Magistrate’s Court Judge Efrat Bousani, refusing the police demand. The suspect in the case, whose name was not published, was arrested for possession of 37 grams (1.3 ounces) of hashish. He had argued that forcing him to unlock his phone was a violation of his right to avoid self-incrimination.

In overturning the lower court’s ruling, Haimovich said that once a warrant was issued to examine the suspect’s phone, reasonable force could be used to compel the use of his finger to unlock the device “without unduly violating [his] rights.” Refusing the police request, she said, would have seriously hampered the investigation.

The ruling, which was made public in the wake of a request by Kan public television, was criticized by defense lawyers as a serious infringement of the right to remain silent. Lawyers who spoke with Haaretz said the police have forced other suspects to unlock their fingerprint-protected cellphones, rather than or in addition to hiring outside companies to crack locked devices.

Gil Shapira, a senior lawyer in the National Public Defender’s Office, told Haaretz that “the court erred, both in interpreting the law and in violating a detainee’s right to remain silent. This right is a constitutional one, which can only be violated under circumstances that do not apply here.”

Shapira said the law cited by the court in its verdict was not intended for cases such as this one. “It’s similar to a person not divulging the code to his safe, and the police using force to get him to reveal it. A phone contains abundant private information, belonging to the suspect and others, which the police can later use, making this violation a disproportionate one.”

The head of the Israel Bar Association, Uri Keynan, said that the ruling could create a slippery slope, adding, “Using force beyond identifying a suspect is a very dangerous process, which will allow gathering evidence in violation of the right to silence.”