Seeking to have defendant use his fingerprint to unlock his cell phone was not testimonial. The Second Circuit hasn’t ruled yet. “Nevertheless, the Court is persuaded by the weight of authority in other circuits, which holds that the compelled use of a defendant’s biometric features to unlock a phone does not amount to a testimonial communication, and therefore does not run afoul of the Fifth Amendment.” United States v. Eldarir, 2023 U.S. Dist. LEXIS 116126 (E.D.N.Y. July 6, 2023):
But, whether the use of biometric features to unlock a phone can give rise to a testimonial communication is a novel question, one which the Second Circuit has yet to address and which has divided courts elsewhere. Compare United States v. Wright, 431 F. Supp. 3d 1175, 1187-88 (D. Nev. 2020), aff’d, No. 20-10303, 2022 U.S. App. LEXIS 373, 2022 WL 67341 (9th Cir. Jan. 6, 2022) (finding that defendant’s Fifth Amendment rights were violated “because the unlocking of [defendant’s] phone with [his] face was a testimonial act”) with Matter of Search Warrant Application for cellular telephone in U.S. v. Barrera, 415 F. Supp. 3d 832, 842 (N.D. Ill. 2019) (“[T]o equate the concept of witness, which was originally conceived to cover compelled and incriminating oral testimony, with a fingerprint press is inconsistent with the plain text of the Fifth Amendment”); see also Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d 523, 534, 540 (D.D.C. 2018) (concluding that the use of defendant’s biometric information to unlock his phone was “obviously compulsive and was likely to be incriminating,” but not testimonial). Importantly, “if a compelled act is not testimonial, and therefore not protected by the Fifth Amendment, it cannot become protected simply because it will lead to incriminating evidence.” Barrera, 415 F. Supp. 3d. at 836 (emphasis in original) (citing Doe, 487 U.S. at 208 n. 6). The critical inquiry is whether, in compelling Defendant to unlock his phone, the Government required Defendant to “disclose the contents of his own mind.” Doe, 487 U.S. at 210-211 (quoting Curcio v. United States, 354 U.S. 118, 128, 77 S. Ct. 1145, 1 L. Ed. 2d 1225 (1957)) (noting that the government may, among other things, compel a blood sample, a handwriting exemplar, a voice exemplar, and the defendant’s participation in a lineup without implicating the Fifth Amendment because “the suspect was not required to ‘disclose any knowledge he might have,’ or ‘to speak to his guilt.'”) (citation omitted).
The Court is mindful that “[m]odern cell phones are not just another technological convenience,” and that “[w]ith all they contain and all they may reveal, they hold for many Americans the ‘privacies of life.'” Riley v. California, 573 U.S. 373, 403, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). Nevertheless, the Court is persuaded by the weight of authority in other circuits, which holds that the compelled use of a defendant’s biometric features to unlock a phone does not amount to a testimonial communication, and therefore does not run afoul of the Fifth Amendment. See Matter of White Google Pixel 3 XL Cellphone in a Black Incipio Case, 398 F. Supp. 3d 785, 794 (D. Idaho 2019) (determining, “in accordance with a majority of [c]ourts that have weighed in on this issue,” that compelling defendant’s use of a fingerprint to unlock his phone “would not violate the Fifth Amendment because it does not require the suspect to provide any testimonial evidence.”).
Particularly persuasive on this point is the Northern District of Illinois’ analysis in Matter of Search Warrant Application for cellular telephone in United States v. Barrera, 415 F. Supp. 3d 832 (N.D. Ill. 2019). There, the Government applied for a warrant to search the defendant’s iPhone for evidence of threats against a confidential informant. Id. at 834. In connection with that effort, the Government also sought to compel the defendant to “place his fingers and thumbs on the iPhone home button in an attempt to unlock the phone.” Id. Before issuing the warrant, the court analyzed whether it was empowered to authorize such a request under the Fifth Amendment. Id. at 835. Applying the comparison set forth in Doe v. United States, which recognized that “the Fifth Amendment permits the government to force an individual to surrender a key to a strongbox containing incriminating documents, but not to reveal the combination to a subject’s wall safe,” the Barrera court concluded that, “in the context of an iPhone, a finger is a modern substitute for a key,” and thus did not undermine the defendant’s Fifth Amendment interests. Id. at 839 (citing Doe, 487 U.S. at 210 n. 9).
Defendant argues that the compelled use of a biometric feature to unlock a phone is testimonial, because it “implicitly conveys testimonial facts about an individual’s control over that device and the data it contains, effectively authenticating evidence to be used against him in a way that ‘far exceeds the “physical evidence” created when a suspect submits to fingerprinting.'” (Def.’s Mot. Suppress at 8.) And, as Defendant notes, some courts have agreed with him on this point. A magistrate judge in the Northern District of California, for example, denied a warrant application where the Government sought to compel the use of biometric features to unlock a phone, because “the act concede[d] that the phone was in the possession and control of the suspect, and authenticate[d] ownership or access to the phone and all of its digital contents.” Matter of Residence in Oakland, California, 354 F. Supp. 3d 1010, 1016 (N.D. Cal. 2019). And, in United States v. Wright, a court in the District of Nevada came to the same conclusion, reasoning:
First, a biometric feature is functionally the same as a passcode, and because telling a law enforcement officer your passcode would be testimonial, so too must the compelled use of your biometric feature to unlock a device. Second, unlocking a phone with your face equates to testimony that you have unlocked the phone before, and thus you have some level of control over the phone.431 F. Supp. 3d at 1187 (internal citations omitted). The argument is not altogether unpersuasive. The argument, however, seems to disregard the illustration drawn by analogy by the Supreme Court in Doe, 487 U.S. at 210 n. 9. That is, in Doe, the Supreme Court determined that “[w]e do not disagree with the dissent that ‘[t]he expression of the contents of an individual’s mind’ is testimonial communication for purposes of the Fifth Amendment. We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like ‘be[ing] forced to surrender a key to a strongbox containing incriminating documents’ than it is like ‘be[ing] compelled to reveal the combination to [petitioner’s] wall safe.'” Id. (citation omitted). By extension, a fingerprint, like a key:
"[R]equires no revelation of mental thoughts. Nor does a finger require a communication of any information held by that person[.] In fact, the application of a finger to the home button on a iPhone 'can be done while the individual sleeps or is unconscious,' and thus does not require any revelation of information stored in a person's mind."Barrera, 415 F. Supp. 3d at 839 (quoting Google Pixel 3 XL Cellphone, 398 F. Supp. 3d at 794). Moreover, the compelled use of a fingerprint to unlock an iPhone does not, as Defendant suggests, necessarily imply ownership or control of it. For example, an iPhone with “Touch ID” capabilities, such as the iPhone 7 in the instant case, can store the fingerprints of up to five different individuals. Were the Government to compel any one of those individuals to unlock the phone biometrically, their ability to do so would ultimately say nothing about who actually owned the phone, or was responsible for its contents.
For these reasons, the Court cannot conclude that the compelled use of biometrics to unlock a phone is a testimonial act, thereby implicating the Fifth Amendment. Accordingly, suppression is not warranted on Fifth Amendment grounds.
