• The use of “biometrics” and the compelled opening of private devices  
• Good faith in the execution of a search warrant absent settled law to the contrary  
• The “foregone conclusion” doctrine  
• Communications search warrants for cellphones  
• Compelled use of one’s finger to unlock a cellphone and Fourth Amendment, Fifth Amendment and due process issues 

A separate statement of probable cause, and a request to use reasonable force if necessary, becomes a part of a search warrant when specifically incorporated by reference. An officer’s good faith, absent settled law to the contrary, allows for the execution of a search warrant even if the warrant is later found to be legally inadequate. The use of a suspect’s fingerprint to unlock his cellphone, the contents of the cellphone being non-testimonial, does not violate the subject’s Fifth Amendment privilege against self-incrimination.  

Also, with law enforcement already knowing what the cellphone contains, the “foregone conclusion doctrine” applies, allowing law enforcement to search and seize the cellphone’s contents. A suspect’s due process rights are not violated by a law enforcement officer forcing a suspect to use his fingerprint to open his cellphone when the force used is minimal and insignificant.

Defendant Alfredo Ramirez, as a high school student and into adulthood, preferred younger girls. When in high school (his age is not mentioned), he dated a 15-year-old girl, listed simply as “M.” The couple got pregnant and then married. M, however, was one of 12 children in her family, with at least three younger sisters who are referred to here as Jane Does #2, #3, and #4. The three Jane Does were between the ages of nine and 13 during the events described here. 

During the years Ramirez and M lived together as husband and wife, he often pressured her into having her three sisters sleep over at their house, intentionally excluding M’s brothers. When they visited, Ramirez would take them to places like a boardwalk, a swimming pool, and an amusement park. All three Jane Does eventually complained to their mother, however, that Ramirez habitually came into their bedroom at night and undid, or completely removed, their clothing, sometimes touching them inappropriately.  

Jane Doe #2 also reported that Ramirez took her to a swimming pool, where she wore a bikini he had bought for her. While at the pool, Ramirez repeatedly threw her in the air, lifting her top each time, and touching her breasts as she came back down in the water.  

In 1996, the three Jane Does reported Ramirez’s illicit acts (described in considerably more detail in the written case decision) to their mother, who filed a complaint with police. For unexplained reasons, the case was never submitted for prosecution. Even so, Ramirez was apparently contacted by police in that he called the girls’ mother that same day, asking her who had reported him. When told that she did, he “desperately pleaded” with her that she needed “to drop everything” because if she didn’t, it would harm his marriage to M and he’d have to move out of town. Because the police dropped the ball, however, Ramirez was left to continue his sexual acts on young girls.  

By August 2018 — 22 years after the above, and after being divorced from M — Ramirez went after another young girl, his cousin’s daughter, called Jane Doe #1, whose age is not mentioned in the decision. Ramirez had a daughter with another woman and Jane Doe #1 slept over at his home with this newest daughter. On August 5, Jane Doe #1 complained to her mother that she did not want to sleep over at Ramirez’s house again because he was “weird.” When asked what she meant, she described how defendant had pulled down her pants and took pictures of her with his cellphone. 

Jane Doe #1’s mother reported this to the Salinas Police Department, providing them with a photograph of her daughter depicting the clothing she had been wearing that night. Detective Gabriel Gonzalez took over the investigation, interviewing all four Jane Does. He then obtained several search warrants for Ramirez’s home, vehicles, cellphone, and iPad. After executing the warrants and arresting Ramirez, the detective obtained what the court referred to as a “communications search warrant” for the contents of Ramirez’s cellphone. Executing this warrant, Detective Gonzalez forced Ramirez to unlock his cellphone with a fingerprint.  

In the phone, the detective found “dozens of images of young girls,” with many “focused on the buttocks of these young girls.” During a second warrant-authorized search of Ramirez’s cellphone, after the cellphone had locked again, Detective Gonzalez found three videos of Jane Doe #1 wearing the same clothing as in the photograph the girl’s mother had provided to the police. These videos each depicted Jane Doe #1 lying in bed with her eyes closed as the camera approached and a hand, coming from behind the camera, pulled down her shorts and touched her genitals. Ramirez was charged in state court with multiple counts of using a minor for sex acts (P.C. § 311.4(c)), possession of matter depicting a minor engaging in sexual conduct (P.C. § 311.11(a)), and lewd or lascivious act upon child (P.C. § 288(a)), plus enhancements for committing the offenses against multiple victims (P.C. §§ 667.61(b)?&?(e)(4), and 1203.066(a)(7).)  

After the trial court denied Ramirez’s motion to suppress, a jury convicted him of all the above, resulting in a prison sentence of 107 years to life. He appealed. 

The Sixth District Court of Appeal affirmed the trial court’s ruling. 

Ramirez’s primary argument on appeal was the constitutionality of compelling him to use his fingerprint to open his cellphone, alleging that to do so constituted (1) an unreasonable warrantless search under the Fourth Amendment, (2) a violation of his privilege against compulsory self-incrimination under the Fifth Amendment, and (3) a violation his Fifth and Fourteenth amendment due process rights.  

Although Detective Gonzalez initially obtained two search warrants relative to Ramirez’s cellphone, one to seize it and one to search it, neither referenced the issue of how police could unlock the phone. However, in an attached “statement of probable cause” that was incorporated by reference by the affidavit, the detective asked for permission to use Ramirez’s fingerprint to open his cell phone, and to use reasonable force if necessary to do so. Detective Gonzalez went with the warrant and the cellphone to the jail?where Ramirez was located. The detective then went through each of defendant’s fingers before finding one, the left thumb, that worked.  

Ramirez cooperated until Detective Gonzalez got to the left thumb, when he tried to pull away, causing the detective to “grab” his left hand and “guide it towards the phone.” This minimal use of force immediately resulted in Ramirez’s compliance, although he told the detective as this was going on: “I’m not giving you permission to do that.” Later, after observing the sexual images of minor sin the phone, the detective attempted to hand the phone off to his department’s computer forensic team. While doing so, the phone locked up again. So, Detective Gonzalez obtained another (the third) warrant and repeated the process.  

As with the earlier search warrant, this warrant was accompanied by a separate statement of probable cause requesting permission to contact Ramirez to obtain his fingerprint to unlock the phone and to use reasonable force if necessary. This time, however, Ramirez only verbally objected, stating that he first wanted his attorney to review the warrant and to be present during its execution. Ramirez did not resist, however, after being told by a second detective, in so many words, that they were going to use his thumb to open his phone whether he liked it or not. Detective Gonzalez then used the left thumb to unlock the phone, but this time without the need of physical force. A subsequent search of the phone’s contents resulted in the discovery of three videos of Jane Doe #1 as described above. Detective Gonzalez also found sexually explicit images of other young girls on the phone, which led to additional charges.  

Based upon this sequence of events, Ramirez raised issues arguing that it was an unreasonable warrantless search, and violated his privilege against compulsory self-incrimination and due process rights. 

Appeal Issues 

Search of the Cellphone and the Fourth Amendment 

The law on this issue is relatively simple. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” (United States v. Jacobsen?(1984) 466 U.S. 109, 113.) In general, the warrant requirement applies to searches of cellphones because of the “broad array of private information” contained in modern cellphones. (Riley v. California?(2014) 573 U.S. 373, 397.) The constitutionality of forcing a suspect to provide his thumbprint on a cellphone to unlock it depends on whether it was reasonable to do so. “As the text of the?Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’” (People v. Robinson?(2010) 47 Cal.4th 1104, 1119–1120.) “Reasonableness...is measured in objective terms by examining the totality of the circumstances,” and “whether?a particular search meets the reasonableness standard is judged by balancing its intrusion on the individual’s Fourth Amendment?interests against its promotion of legitimate governmental interests.” [Citations.] (Id.?at p. 1120.) 

On appeal, defendant Ramirez raised three Fourth Amendment issues: (1) Whether the compelled use of his fingerprint constituted a search entitled to?Fourth Amendment?protection, (2) whether the “electronic search communications” warrants provided law enforcement with authority to compel him to produce his fingerprint, and (3) whether — if a warrant was required to use his fingerprint to unlock the phone but such a warrant was not obtained — suppression of the evidence from his phone is required under the exclusionary rule.  

Assuming (without specifically deciding) that the compelled use of defendant’s finger to unlock his phone constituted a search within the meaning of the Fourth Amendment, for which there is really little doubt, the Appellate Court held that such a search was authorized by the warrant obtained by Detective Gonzalez. Although none of the three warrants used in this case granted permission to use force, Detective Gonzalez’s statements of probable cause, incorporated by reference into each of the warrants, sought the use of “reasonable force.” Contrary to Ramirez’s argument, there is no authority for the proposition that a magistrate’s authorization to use a suspect’s fingerprint to unlock his cellphone, and to use reasonable force if necessary, must be contained on the face of the warrant itself. Asking for a magistrate’s permission to use such reasonable force may be contained in a separate statement of probable cause so long as it is incorporated by reference. Per the court: “(T)he requirements of incorporation by reference and attachments provide the same protection provided by an adequate description on the face of the warrant: clear notice to the executing officer and those subject to search of the authorized scope of the search?at the time the warrant is executed.” (Italics in the original; citing People v. MacAvoy?(1984) 162 Cal.App.3rd 746, 755-756.) Thus, the magistrate, upon approving the warrants, was also approving the use of Ramirez’s finger to unlock the phone as well as the use of reasonable force if necessary to do so.  

The court further held that even if this constituted a Fourth Amendment violation, there is nothing in the settled law that would have told the parties that Detective Gonzalez was acting illegally. Thus, the “good faith” exception to the exclusionary rule also applied. As summarized by the court: “A reasonable officer in Gonzalez’s position would have understood that the warrants authorized him to obtain defendant’s fingerprint to unlock the phone, and to use reasonable force to compel defendant to produce his fingerprint.” With that, there was no Fourth Amendment violation. 

Use of a Defendant’s Finger to Unlock a Cellphone and the Fifth Amendment Privilege Against Compulsory Self-Incrimination 

Ramirez argued that making him use his finger to unlock his cellphone violated his Fifth Amendment privilege against self-incrimination (as well as the California Constitution’s equivalent found in article I, section 15). 

For this argument to fly, a defendant must show that using his fingerprint to unlock his cellphone was “compelled, incriminating, and testimonial.” The Attorney General argued on appeal that making him use his fingerprint to unlock his phone was not only “not tantamount to compelled testimony,” but that it also “did not violate?defendant’s privilege against compulsory self-incrimination because this act?produced nontestimonial evidence under the “foregone conclusion doctrine.” The U.S. Constitution’s Fifth Amendment prohibits, among other things, the state from “compel(ling) in any criminal case” a person from “be(ing) a witness against himself.” “Accordingly, the (Fifth) (A)mendment prohibits the direct or derivative?criminal use?against an individual of ‘testimonial’ communications of an incriminatory nature, obtained from the person under official compulsion. [Citations.]” (People v. Low?(2010) 49 Cal.4th 372, 390.)  

However, “[t]o qualify for the?Fifth Amendment?privilege, a communication must be testimonial, incriminating, and compelled. [Citation.]” (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.?(2004) 542 U.S. 177, 189.) While the information contained in defendant’s cellphone was certainly obtained by being “compelled,” as well as it being “incriminating,” it was held not to be “testimonial,” as this term is defined by the case law. “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. (Doe v. United States “Thus, a suspect may be compelled to furnish a blood sample, a handwriting exemplar, or a voice exemplar, to stand in a lineup, and to wear particular clothing in that lineup.”  (Citations omitted)  It is only when the accused is compelled to testify against himself (i.e., provide “evidence of a testimonial or communicative nature”) that the Fifth Amendment self-incrimination privilege applies.  Here, the Court likened the use of defendant’s thumbprint to being required to provide a blood sample or a handwriting exemplar, etc., as listed above, as opposed to obtaining information from his mind.  Requiring defendant to supply his thumbprint, therefore, was not testimonial and thus not protected by the Fifth Amendment.  Related to this is what is something called the “foregone conclusion doctrine.”  Under this theory, the prosecution must establish “with reasonable particularity”?that it knew ahead of time of the existence of the compelled evidence.  “Where the location, existence, and authenticity of the purported evidence is known with reasonable particularity, the contents of the individual’s mind are not used against him [or her], and therefore no?Fifth Amendment protection is available.”  (In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011?(11th Cir. 2012) 670 F.3rd 1335, 1344.)  The Ninth Circuit Court of Appeals has held that the foregone conclusion doctrine “allows for circumvention of the self-incrimination privilege if the government already has the information it is seeking to compel. [Citation.]” (United States v. Oriho?(9th Cir. 2020) 969 F.3d 917, 927.)  In this case, the Court agreed with the trial court that Detective Gonzalez already knew of the photographs and/or videos that were contained in defendant’s cellphone, triggering the foregone conclusion doctrine.  Per the Court: “The existence, location and authenticity of [the] requested materials in this case were foregone conclusions.” For these reasons, the Court held that the detective did not violate the Fifth Amendment self-incrimination privilege by requiring defendant to use his thumbprint to open up his phone.   “Thus, a suspect may be compelled to furnish a blood sample, a handwriting exemplar, or a voice exemplar, to stand in a lineup, and to wear particular clothing in that lineup.” (Citations omitted) It is only when the accused is compelled to testify against himself (i.e., provide “evidence of a testimonial or communicative nature”) that the Fifth Amendment self-incrimination privilege applies.  

Here, the court likened the use of Ramirez’s thumbprint to being required to provide a blood sample or a handwriting exemplar, as opposed to obtaining information from his mind. Requiring him to supply his thumbprint, therefore, was not testimonial and thus not protected by the Fifth Amendment.  

Related to this is the “foregone conclusion doctrine.” Under this theory, the prosecution must establish “with reasonable particularity”?that it knew ahead of time of the existence of the compelled evidence. “Where the location, existence, and authenticity of the purported evidence is known with reasonable particularity, the contents of the individual’s mind are not used against him [or her], and therefore no?Fifth Amendment protection is available.” (In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011?(11th Cir. 2012) 670 F.3rd 1335, 1344.) The Ninth Circuit Court of Appeals has held that the foregone conclusion doctrine “allows for circumvention of the self-incrimination privilege if the government already has the information it is seeking to compel. [Citation.]” (United States v. Oriho?(9th Cir. 2020) 969 F.3d 917, 927.)  

In this case, the appeals court agreed with the trial court that Detective Gonzalez already knew of the photographs and/or videos in the cellphone, triggering the foregone conclusion doctrine. Per the court: “The existence, location and authenticity of [the] requested materials in this case were foregone conclusions.” For these reasons, the court held that the detective did not violate the Fifth Amendment self-incrimination privilege by requiring Ramirez to use his thumbprint to open his phone. 

The Forced Use of a Defendant’s Finger to Unlock a Cellphone as Fifth and Fourteenth Amendment Due Process Violations 

Ramirez’s last argument was that the compelled use of his fingerprint to unlock the phone violated his due process rights under the?Fifth?and?Fourteenth Amendments to the United States Constitution (and under?article I, section 7 of the California Constitution). Specifically, he submitted that his due process rights were violated by the detective grabbing his hand and forcing his finger onto his phone, and then later by ignoring his request to have his attorney present as they threatened that it was going to happen “whether (he) like(d) it or not.” This, Ramirez argued, violated his rights in each instance because his “will was overborne.”  

Indeed, it is a due process violation for law enforcement to induce a suspect’s cooperation through threats and excessive force. The court, however, found no due process violation under the circumstances of this case. As for the force used to place Ramirez’s thumb on his cellphone, the court found it to be minimal, and reasonable. As noted by the court: The detectives “did not threaten defendant’s health or safety...they did not use deception and...any affront to defendant’s privacy was minimal when compared (to) other permissible uses of force such as bodily intrusion searches.” As for the second detective’s comment that it was going to happen whether he liked it or not, the court made no mention of this, apparently considering it an insignificant part of the overall reasonable use of force that was used. 

Conclusion 

Ramirez raised other issues dealing with the admission of expert testimony, instructional error, fines and fees imposed, and the possible incompetence of his attorney for not having contested each of these potential issues, all of which were rejected by the court. Thus, his conviction and sentence were affirmed. 

This case covered so many constitutional issues at once (Fourth, Fifth, Sixth and Fourteenth Amendments), which is one reason it’s 44 pages, and why you may have to read this brief several times to fully understand the ruling.  

It’s also important that this is a case of first impression, at least in California. I have some older cases from other jurisdictions that have gone both ways on the issue of the use of “biometrics” (i.e., the use of one’s finger, facial, or iris recognition) and the compelled opening of otherwise private devices.  

This case follows the trend on this issue, generally ruling that privacy rights don’t overcome a law enforcement officer’s commands to open those devices via the simple use of a fingerprint, at least when there’s probable cause supporting the officer’s right to do so. Interestingly, while I was briefing this case, the Ninth Circuit Court of Appeal reached similar conclusions in a case involving a California Highway Patrol officer who forced a suspect to unlock his cellphone via a thumbprint. In United States v. Payne (9th Cir. Apr. 17, 2024) F.4th [2024 U.S.App. LEXIS 9256], the Ninth Circuit held, as did the Ramirez court here, that the compelled use of a biometric (thumbprint) to unlock an electronic device was not “testimonial” because it required no cognitive exertion, placing it in the same category as blood draws in DUI cases and fingerprints taken during the booking process.  

Accordingly, a Fifth Amendment self-incrimination argument by the defendant did not fly. Payne had one more interesting twist, however. The defendant was only being temporarily detained during a typical traffic stop when his phone was searched. However, since he was on parole, the court held that requiring him to unlock his cellphone was no more than a lawful warrantless parole search. Payne, as a parolee, had waived his Fourth Amendment search and seizure rights. I will brief the entire Payne case in a future article.