Compelling defendant to unlock his phone was a testimonial act under Hubbell, and it had to be suppressed. (Deciding the Fifth Amendment claim moots need to decide the Fourth Amendment claim.) United States v. Brown, 2025 U.S. App. LEXIS 1219 (D.C. Cir. Jan. 17, 2025):
So too here. When, in response to the command to unlock the phone, Schwartz opened it, that act disclosed his control over the phone, his knowledge of how to access it, and the existence, authenticity, and ownership of documents within it. In addition, opening the phone was tantamount to answering a series of questions about ownership or control over the phone, including how it could be opened and by whom.
In short, under both the physical-trait and act-of-production caselaw, Schwartz’s compelled unlocking of the phone was testimonial.
b
Because the compelled opening of the cellphone was testimonial, both the message communicated by that action and any evidence obtained from that communication must be suppressed. See Kastigar, 406 U.S. at 445 (The Fifth Amendment “protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”); Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968) (“[T]he same principle that prohibits the use of confessions [wrongfully obtained] also prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree, to invoke a time-worn metaphor.”). In unlocking the phone, Schwartz disclosed that he had access to the phone and therefore also the ability to use it, and the government then used those testimonial acts in prosecutorial actions against Schwartz.
First, as a consequence of Schwartz unlocking the phone, the FBI agents gained access to the phone and photographed text messages “related to Schwartz’s presence at the U.S. Capitol on January 6.” J.A. 407, 460.
Second, the government relied on those text messages, as well as the fact that “Schwartz’s fingerprint [] unlock[ed]” the phone, to establish probable cause to obtain a second warrant for a forensic analysis of the phone. Gov’t Rule 28(j) Letter, Exh. 2 at 16-20. With that warrant in-hand, an FBI computer analyst “extracted the data from the phone” and produced a “usable report” of the phone’s contents. J.A. 2014.
Third, the government introduced that report into evidence at trial, relied on the report to prove Schwartz was the “owner and user of the telephone[,]” and then introduced incriminating text messages reflected in the report. J.A. 2014-2036.
Because the evidence on Schwartz’s phone was the product of a Fifth Amendment violation, the district court erred in denying Schwartz’s motion to suppress use of that evidence and its fruits in his prosecution.
The government maintains, however, that even if the evidence was obtained in violation of the Fifth Amendment, suppression is unnecessary both because the phone’s contents and linkage to Schwartz inevitably would have been discovered, and because the officers acted in good faith. Neither argument succeeds.
