MN: Order to provide a fingerprint to unlock a cell phone is not testimonial and thus not barred by the 5A

An order to provide a fingerprint to unlock a cell phone is not testimonial and thus not barred by the Fifth Amendment. State v. Diamond, 2018 Minn. LEXIS 7 (Jan. 17, 2018):

This case presents an issue of first impression: whether the Fifth Amendment privilege against self-incrimination protects a person from being ordered to provide a fingerprint to unlock a seized cellphone. Neither the Supreme Court of the United States nor any state supreme court has addressed this issue.

The police lawfully seized a cellphone from appellant Matthew Diamond, a burglary suspect, and attempted to execute a valid warrant to search the cellphone. The cellphone’s fingerprint-scanner security lock, however, prevented the search, and Diamond refused to unlock the cellphone with his fingerprint, asserting his Fifth Amendment privilege against self-incrimination. The district court found no Fifth Amendment violation and ordered Diamond to provide his fingerprint to unlock the cellphone so that the police could search its contents. After the court of appeals affirmed, we granted Diamond’s petition for review. Because the compelled act here—providing a fingerprint—elicited only physical evidence from Diamond’s body and did not reveal the contents of his mind, no violation of the Fifth Amendment privilege occurred. Accordingly, we affirm.

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But an act is not testimonial when the act provides “real or physical evidence” that is “used solely to measure … physical properties,” United States v. Dionisio, 410 U.S. 1, 7, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973), or to “exhibit … physical characteristics,” United States v. Wade, 388 U.S. 218, 222, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The government can compel a defendant to act when the act presents the “body as evidence when it may be material.” Schmerber, 384 U.S. at 763 (quoting Holt v. United States, 218 U.S. 245, 252-53, 31 S. Ct. 2, 54 L. Ed. 1021 (1910)). In other words, the government may compel a defendant to “exhibit himself” and present his “features” so that the police or a jury may “compare his features” with other evidence of the defendant’s guilt. Holt, 218 U.S. at 253; State v. Williams, 307 Minn. 191, 239 N.W.2d 222, 225-26 (Minn. 1976) (holding that an order to “put on a hat found at the scene of the crime” was not testimonial because the police compelled the physical act for “the sole purpose of attempting to prove [the defendant’s] ownership of [an] incriminating article”).

The Supreme Court of the United States has therefore drawn a distinction between the testimonial act of producing documents as evidence and the nontestimonial act of producing the body as evidence. The Court first held that the compelled exhibition of the body’s characteristics was not testimonial under the Fifth Amendment in Holt, 218 U.S. at 252. The Court explained that it would be an “extravagant extension of the 5th Amendment” to prevent a jury from hearing a witness testify that a prisoner, who was compelled to put on clothes, did so and that the clothes fit him. Id. It reasoned that barring the testimony would, in essence, “forbid a jury” from looking “at a prisoner and compar[ing] his features with a photograph in proof.” Id. at 253; see also State ex rel. Ford v. Tahash, 278 Minn. 358, 154 N.W.2d 689, 691 (Minn. 1967) (“[T]here is a distinction between bodily view and requiring the accused to testify against himself.”); State v. Garrity, 277 Minn. 111, 151 N.W.2d 773, 776 (Minn. 1967) (“The Constitution confers no right on an accused to be immune from the eyes of his accusers. The privilege is against testimonial compulsion, whereas exposure to view, like fingerprinting and photographing, is not proscribed.”).

In Schmerber, the Supreme Court relied on Holt to hold that providing a blood sample to the police for an alcohol-content analysis was a nontestimonial act. 384 U.S. at 765. The Court reasoned that neither the extraction of the blood sample nor the later chemical analysis of the blood sample showed “even a shadow of testimonial compulsion” or “communication by the accused.” Id. It emphasized that the defendant’s “testimonial capacities” were not involved and “his participation, except as a donor, was irrelevant to the results of the test, which depend[ed] on [the] chemical analysis and on that alone.” Id. Accordingly, the Court adopted the reasoning of the federal and state courts that distinguished between compelled acts that make a “suspect or an accused the source of real or physical evidence” and compelled acts that elicit testimonial responses. Id. at 764 (internal quotation marks omitted). Courts applying this distinction, it noted, had held that the Fifth Amendment “offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Id. at 764.

Although the Supreme Court’s distinction between the testimonial act of producing documents as evidence and the nontestimonial act of producing the body as evidence is helpful to our analysis, the act here—providing the police a fingerprint to unlock a cellphone—does not fit neatly into either category. Unlike the acts of standing in a lineup or providing a blood, voice, or handwriting sample, providing a fingerprint to unlock a cellphone both exhibits the body (the fingerprint) and produces documents (the contents of the cellphone). Providing a fingerprint gives the government access to the phone’s contents that it did not already have, and the act of unlocking the cellphone communicates some degree of possession, control, and authentication of the cellphone’s contents. See Hubbell, 530 U.S. at 36. But producing a fingerprint to unlock a phone, unlike the act of producing documents, is a display of the physical characteristics of the body, not of the mind, to the police. See Schmerber, 384 U.S. at 763.

Because we conclude that producing a fingerprint is more like exhibiting the body than producing documents, we hold that providing a fingerprint to unlock a cellphone is not a testimonial communication under the Fifth Amendment. The police compelled Diamond’s fingerprint for the fingerprint’s physical characteristics and not for any implicit testimony from the act of providing the fingerprint. See Dionisio, 410 U.S. at 7. Moreover, the fingerprint was physical evidence from Diamond’s body, not evidence of his mind’s thought processes. See Hubbell, 530 U.S. at 43. …

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