In Utah, Scanning a Person's Face or Iris to Determine Identity Is a Search Justified Only in Limited Circumstances
| Jurisdiction | Utah,United States |
| Citation | Vol. 24 No. 6 Pg. 16 |
| Pages | 16 |
| Publication year | 2011 |
Vol. 24, No. 6. 16. In Utah, Scanning a Person's Face or Iris to Determine Identity is a Search Justified Only in Limited Circumstances
Volume 24 No. 6
Nov/Dec 2011
INTRODUCTION
Dozens of law enforcement groups in several states have recently outfitted police with handheld iris and face scanners to aid officers in quickly identifying a person. See Emily Steel and Julia Angwin, Device Raises Fear of Facial Profiling, The Wail St. J., July 13, 2011. The Mobile Offender Recognition and Information System ("MORIS") is a device that attaches to an iPhone and allows an officer to snap a picture of a face from up to five feet away, or scan a person's irises from up to six inches away. See id. The device performs "an immediate search to see if there is a match with a database of people with criminal records." Id. Though the device isn't yet in police hands in Utah, the manufacturer of the handheld scanner has already placed one of its less portable scanners in the Davis County Jail to prevent the mistaken release of inmates. See Melanie S. Welte, Iris Scans May Prevent Mistaken Release of Inmates, Deseret News, Feb. 28, 2010. Use of the handheld device in this state raises constitutional concerns related to search and seizure law that no court in Utah has addressed. Attorneys and judges in the state should be ready to confront these issues if and when they arise.
Generally, constitutional protections against unreasonable searches are not implicated unless a search has actually occurred. The important issues practitioners must therefore consider are (1) whether a scan of a person's face or iris to determine identity constitutes a "search" that implicates constitutional protections and (2) the legal standard police must meet before effectuating the scan. In this article I take a Utah-specific approach and argue that scanning a person's face or iris to determine identity is a search under the Utah Constitution. I then argue that there are only three situations in which use of the scan is legally justified:
(1) when the subject of the scan has been lawfully arrested,
(2) when police are confronted with exigent circumstances and have probable cause to believe the subject has committed a crime, and (3) when police obtain a lawfully executed warrant.
Though Utah courts have developed "an independent body of state search and seizure law" that "provides greater protections to Utah citizens than the Fourth Amendment," I use federal Fourth Amendment precedent as a starting point. State v. Worwood, 164 P.3d 397, 405 (Utah 2007) (noting that analysis of federal rules governing searches "provide[s] a floor from which state constitutional law can depart¶."). When a Utah-specific departure from the federal "floor" is necessary, I will so note.
SCANNING A PERSON'S FACE OR IRIS TO DETERMINE IDENTITY IS A SEARCH UNDER THE UTAH CONSTITUTION.
Article 1, Section 14 of the Utah Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated. . . ." Utah Const. art. 1 § 14. This language is nearly identical to the Fourth Amendment of the United States Constitution. See U.S. Const. amend. IV.
Interpretation of Article 1, Section 14 begins with an analysis of the United States Supreme Court's interpretation of the Fourth Amendment. See Worwood, 164 P.3d at 405. In 1967, the Supreme Court created the current test from which search and seizure analysis springs. In United States v. Katz, 389 U.S. 347 (1967), the Court defined the Fourth Amendment's scope of protection to include activity in which an individual has a "reasonable expectation of privacy." Id. at 360 (Harlan, J., concurring). The...
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