CA9: Compelled use of fingerprint to open a cell phone didn’t violate 5A

Police forcing defendant parolee to use his fingerprint to open his cell phone was not testimonial under the Fifth Amendment. It was “cognitive exertion” and akin to taking DNA or a blood draw. United States v. Payne, 2024 U.S. App. LEXIS 9256 (9th Cir. Apr. 17, 2024). Syllabus by the court:

Payne, a California parolee, was arrested and charged with possession with intent to distribute fentanyl, fluorofentanyl, and cocaine. After the district court denied his motion to suppress evidence of these crimes that California Highway Patrol officers had recovered from a house in Palm Desert, California, he entered a conditional guilty plea to possession of fentanyl with intent to distribute.

The panel held that the CHP officers did not violate the Fourth Amendment in their search, during a traffic stop, of Payne’s cell phone, made possible by the officers’ forced use of his thumb to unlock the device. The panel held that, despite the language of a special search condition of Payne’s parole, requiring him to surrender any electronic device and provide a pass key or code, but not requiring him to provide a biometric identifier to unlock the device, the search was authorized under a general search condition, mandated by California law, allowing the suspicionless search of any property under Payne’s control. The panel concluded that any ambiguity created by the special condition, when factored into the totality of the circumstances, did not increase Payne’s expectation of privacy in his cell phone to render the search unreasonable under the Fourth Amendment.

The panel further held that the search of the cell phone was not unreasonable on a theory that it violated California’s prohibition against arbitrary, capricious, or harassing searches. In addition, the search of Payne’s photos, videos, and maps on his cell phone did not run afoul of Riley v. California, which held that officers cannot search the contents of an individual’s cell phone incident to their arrest, because Riley does not apply to parole searches of a cell phone.

The panel held that the CHP officers did not violate Payne’s Fifth Amendment privilege against self-incrimination when they compelled him to unlock his cell phone using his fingerprint. Payne established that the communication at issue was compelled and incriminating. The panel held, however, that the compelled use of a biometric to unlock an electronic device was not testimonial because it required no cognitive exertion, placing it in the same category as a blood draw or a fingerprint taken at booking, and merely provided the CHP with access to a source of potential information. Accordingly, the Fifth Amendment did not apply.

See Ars Technica: Cops can force suspect to unlock phone with thumbprint, US court rules by Jon Bodkin (“Ruling: Thumbprint scan is like a ‘blood draw or fingerprint taken at booking.’”)