• The Fourth Amendment and Forced Biometric Cellphone Searches
• Parolees and Cellphone Searches
• The Fifth Amendment and Forced Biometric Cellphone Searches

The forced use of a suspect’s thumbprint to open his cellphone, when the suspect is subject to a parole Fourth waiver, is lawful.  Forcing a suspect to open his cellphone via the use of his thumbprint does not violate that suspect’s Fifth Amendment self-incrimination privilege. Where a search warrant obtained for a suspect’s residence shows probable cause justifying the search even after redacting information obtained during an illegal security sweep of the residence, whether or not the security sweep was legal is irrelevant.

Defendant Jeremy Travis Payne was sentenced to three years in prison after having been convicted of assault upon a peace officer (P.C. § 245(c)), stemming from an incident that occurred in November, 2018.  Released on parole on September 23, 2020, defendant signed the standard “Notice and Conditions of Parole” document which included the following general search condition:  “You, your residence, and any property under your control are subject to search or seizure by a probation officer, an agent or officer of the California Department of Corrections and Rehabilitation, or any other peace officer, at any time of the?day or night, with or without a search warrant, with or without cause.”  Attached to that was a three-page “Special Conditions of Parol” document that included the following concerning electronic devices: “You shall surrender any digital/electronic device and provide a pass key/code to unlock the device to any law enforcement officer for inspection other than what is visible on the display screen. This includes any digital/electronic device in your vicinity. Failure to comply can result in your arrest pending further investigation and/or confiscation of any device pending investigation.”

On November 3, 2021, California Highway Patrol Officers Coddington and Garcia—assigned to the Coachella Valley Crime Gang Taskforce—observed defendant driving a gold Nissan in the Desert Hot Springs area with unlawfully tinted front windows; a violation of V.C. § 26708.  Upon making a traffic stop, an extremely nervous “sweating profusely,” “stammering” defendant informed the officers that he was on parole.  Upon confirming defendant’s parole status via the police radio, defendant was searched pursuant to his parole conditions, resulting in the recovery of  $1,270 in cash and a key ring with several keys, including a key to a BMW. Upon retrieving defendant’s cellphone from the car, Officer Coddington asked defendant for the password.  Defendant claimed at that point that the cellphone was not his, contrary to earlier assertions that it was.  So Officer Coddington grabbed defendant’s hand and forced him to press his thumb to the screen, opening the phone via a built-in biometric unlocking feature.  Upon doing so, and checking the phone’s settings, it was confirmed that it was indeed defendant’s cellphone.  So the Officer searched the contents of the phone, finding some videos depicting a large amount of U.S. currency, several bags of blue pills (suspected to be fentanyl), and a gold money counting machine.  Defendant was seen in one of the videos referring to the room in which the video was made as his “office.”  Another video in defendant’s cellphone depicted a residence with a gray-brick wall around the front.  In that same video, defendant could be seen saying; “life is good in Palm Desert” and “I got the Beamer out front,” in apparent reference to a parked BMW vehicle shown in the video. 

Checking the maps application on defendant’s cellphone, Officer Coddington found a pin dropped to a parked vehicle on a street called El Cortez Way in Palm Desert; about 25 miles from their current location.  Despite defendant’s assertions that he did not live there, the officers drove him to the residence at that location.  Upon finding a silver BMW parked in front of the residence, it was determined that it was registered to defendant. Also, the key recovered earlier from his person opened the BMW. Another key on the same keyring unlocked the door to the residence. 

The officers entered the home and conducted what they referred to as a “security sweep” to “make sure there was no one inside the residence who could possibly come out of the residence and?harm [the officers].” During sweep, the officers observed in plain sight several bags of blue pills suspected to be fentanyl and a money-counting machine?consistent with what they had earlier observed in the first video on defendant’s cellphone  A search warrant was subsequently obtained for the residence listing in its probable cause statement the information the officers had obtained from defendant’s cellphone, as described above, as well as observations made during the sweep of the home. 

Upon execution of the warrant, documents were recovered showing defendant as the resident.  Also recovered was a “white powdery substance” throughout the home and a total of 104.3 grams of blue pills marked “M/30,” later confirmed to be fentanyl, fluorofentanyl, and cocaine. In addition to the drugs, officers recovered a total of $13,992 in cash, a digital scale, the gold money-counting machine, and six cellphones. Defendant was formally arrested following this search.  Charged with a whole host of drug-related charges in federal court, defendant’s motion to suppress was denied by the district (trial) court.  Upon being found guilty (the Court did not specify whether that was by plea, or a jury verdict), defendant was sentenced to 12 years in prison. 

Defendant appealed. 

The Ninth Circuit Court of Appeals affirmed.  On appeal, defendant raised a number of issues:  

(1) The Search of Defendant’s Cellphone:  The primary issue on appeal was the legality of the search of defendant’s cellphone, and the CHP officers’ forced use of defendant’s thumbprint to open it. Upon defendant’s release from prison, he was required to agree to suspicionless searches of his person, his residence, and any property under his control, such searches being conducted by persons which included “any . . . peace officer.”  Such a search has been held to be constitution, justified by the fact that “parolees, who enjoy only ‘conditional freedom,’ have a significantly diminished expectation of privacy, while the government has a strong interest in assessing parolees’ rehabilitation and reentry while simultaneously protecting the public.”?(People v. Reyes (1998) 19 Cal.4th 743; People v. Bryant (2021) 11 Cal.5th 976, 281; Samson v. California (2006) 547 U.S. 843, 856-857.)  Defendant was also required to agree to certain “Special Conditions of Parole,” including the search of  “any digital/electronic device and (to) provide a pass key/code to unlock the device to any law enforcement officer for inspection.”  Despite this, defendant argued on appeal, “(1) that the officers on scene during the traffic stop used ‘unreasonable means’ to unlock his phone considering the language of his special search condition;?and (2) that the search was arbitrary, capricious, or harassing.”  The Court rejected both arguments. There are two basic requirements for a parole search to be lawful:  First, there must have probable cause to believe that the individual to be searched is on active parole, and an applicable parole condition authorizes the search or seizure at issue.  Secondly,?the search cannot be “arbitrary, capricious, or harassing.”  Here, defendant admitted to the officers that he was on parole. Also, the officers took the time to verify this fact via their radio. This certainly established that the officers knew defendant was on searchable parole. Relative to the issue of whether the search was “arbitrary, capricious, or harassing,” defendant pointed out that in order to get into his cellphone, Officer Coddington had grabbed his hand and forced him to press his thumb to the screen, opening the phone via a built-in biometric unlocking feature.  Noting that the special search condition?did not?require defendant to provide a biometric identifier (i.e., a thumbprint) to unlock any electronic devices, and did?include an express enforcement provision, defendant submitted that the officer should have chosen the more reasonable alternative of simply arresting him pending further investigation, as outlined in the special search condition. The Court noted that this was not a totally frivolous argument. However, the Court ultimately rejected defendant’s argument on this issue, noting that it ignores the more general, statutorily mandated search condition included in the “Notice of Conditions of Parole,” i.e., that “any property under (his) control (was) subject to search or seizure.”  Secondly, defendant’s argument ignores “the ‘totality of the circumstances’ and ‘reasonableness’ requirements that form the foundation of our?Fourth Amendment?jurisprudence, including in the parolee search context.”  The Ninth Circuit has held before that the warrantless and suspicionless search of a parolee’s cellphone, pursuant to the parolee’s conditions of release, is reasonable.  (United States v. Johnson (9th Cir. 2017) 875 F.3rd 1265, 1275.)  Under the general search condition of defendant’s parole, the Court held that he did not have an “expectation of privacy that society would recognize as legitimate” in the contents of his cellphone. The special search conditions did not dilute this wavier.  Officer Coddington’s use of means not specifically contemplated by defendant’s special search condition to access a device over which he (the defendant) had no significant privacy interest does not appear to have been unreasonable. Specifically, the Court determined that the act of forcing defendant to use biometric means to open his cellphone (by forcing him to apply his thumbprint to the phone) did not, by itself, make the subsequent search “arbitrary, capricious, or harassing” in any way, and there is no contrary evidence to support defendant’s assertions to the contrary.   

(2) The Fifth Amendment Self-Incrimination Privilege and the Compelled Unlocking of a Cellphone via Biometric Means:  Defendant also argued on appeal that forcing him to use his thumbprint to open his phone violated his Fifth Amendment right against self-incrimination.  The?Fifth Amendment?provides that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself.”  While subject to some debate, there’s authority for the argument that we must consider a “three-prong analysis” when deciding whether the Government has violated a defendant’s Fifth Amendment self-incrimination rights.  In order to prove that the Government has violated a person’s self-incrimination rights, it must be shown that the “communication” at issue was (1) compelled; (2) incriminating; and (3) testimonial.?(See?Hiibel v. Sixth Judicial Dist. Ct. of Nev. (2004) 542 U.S. 177, 189.)  The Government here “all but concedes” that has satisfied the first two prongs; i.e., that by forcing a defendant to open his cellphone with his thumbprint, his will was “overborn,” compelling him to incriminate himself. As for the “incriminating” element, it has been held that “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,” makes it incriminating. (Kastigar v. United States (1972) 406 U.S. 441, 445.) The contested issue in this case was whether the compelled use of defendant’s thumbprint to unlock his cellphone was “testimonial;” an issue yet to be decided by either the U.S. Supreme Court or any other federal circuit courts. In a very esoteric discussion of this issue, the Court here noted that the term “testimonial” has been defined before, albeit in other contexts. “Testimonial communications are those that, ‘explicitly or implicitly, relate a factual assertion or disclose information.’” (Doe v. United States (1988) 487 U.S. 201, 210.) There being no “explicit” communications involved in this case, the issue is whether the forced use of defendant’s thumb “implicitly” related certain facts to officers such that he can avail himself of the privilege against self-incrimination.? As noted by the Court, this argument implicates two lines of Supreme Court precedent; i.e., the “physical trait cases” and the “act of production doctrine.”  (I warned you that this was going to be very “esoteric.”)  The “physical trait cases” involve situations where physical acts are involved, such as standing in a live lineup, or wearing a particular piece of clothing in such a lineup.  Also included are cases where the suspect is required to provide a handwriting or voice exemplar, submit to fingerprinting upon being booked, or a blood draw.  Because none of these compelled acts are “testimonial,” the Fifth Amendment self-incrimination privilege does not apply.  Defendant argued, however, that under the “act of production doctrine,” a purely physical act may nonetheless be testimonial because of what it communicates wholly aside from the contents of the thing produced.  Lower appellate court cases from various jurisdictions are inconsistent on this issue, agreeing with defendant in some cases and disagreeing in others.  After a long and (again) esoteric discussion of this split of authority, the Court here held ultimately determined that being forced to provide a thumbprint for biometric purposes falls into the non-testimonial category in that defendant was never compelled to acknowledge the existence of any incriminating information. As such, defendant’s Fifth Amendment privilege was not violated by forcing him to open his cellphone via the use of his thumbprint.   

(3)  Legality of the “Security Sweep” of Defendant’s Residence, and its Effect on the Subsequently Obtained Search Warrant:  Defendant challenged on appeal the legality of the “security sweep” (often referred to as a “protective sweep”) of his residence prior to the obtaining of the search warrant.  The Court ultimately ruled that the search warrant later obtained had sufficient probable cause to justify the issuance of the warrant even after redacting the observations the officers made during the security sweep.  Specifically, the Court held that the information obtained from defendant’s phone “likely would have been sufficient for probable cause even without the information garnered during the illegal protective sweep.” Thus, it’s irrelevant whether or not the pre-warrant security sweep of defendant’s home was legal.  The Court therefore didn’t see the need to decide the other issues defendant raised; i.e., whether defendant’s parole status allowed for the security sweep (which it obviously did) and whether the “good faith” doctrine applied (a questionable assumption).   

The important issue, in this case, obviously, is the legality of forcing a suspect to open his cellphone via the use of biometrics, such as a thumbprint or his facial features.  This is a case of first impression by the Ninth Circuit.  California’s Sixth District Court of Appeal, in People v. Ramirez (Dec. 22, 2023) 98 Cal.App.5th 175, ruled similarly, at least as to the Fourth Amendment issue (although Ramirez involved the use of a search warrant authorizing the use of biometrics, and not a Fourth wavier.), but not discussing the Fifth Amendment, self-incrimination issue.  (See California Legal Update, Vol. 29, #5; May 1, 2024) These two biometrics cases are just the beginning of what we can expect is going to develop into a whole new body of law.  So get ready for a whole bunch of new cases on this issue in the near future.  Remember, however, that the use of biometrics (finger or facial recognition) on electronic devices is in fact a search, necessitating a warrant (as in Ramirez) or a parole or probationary Fourth waiver (as in this new case).  The Fourth Amendment does not become irrelevant merely because biometrics is involved.