The US Court of Appeals for the Ninth Circuit has issued an opinion in a case involving the police forcing a suspect to unlock their phone via a biometric feature on the device.
The court said this practice, at least in the case it considered, is not unconstitutional.
The appeal was lodged by Jeremy Payne, a defendant in a drug distribution case, who was forced (“compelled”) by the police to unlock his phone with his thumbprint.
We obtained a copy of the opinion for you here.
Payne was hoping to have his motion to suppress evidence accepted – after this was previously denied by a district court – but the Court of Appeals found that obtaining evidence in this way does not mean that the police violated his Fifth Amendment protection against self-incrimination.
And while the appellate court said that other circuits and the Supreme Court are yet to rule if the forced use of a biometric to unlock a device is “testimonial” – in this case, the forcible use of the suspect’s thumb “required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking.”
Payne, a parolee argued that his Fourth Amendment rights were breached when an Officer Coddington unlocked his phone using his thumbprint without his consent. Payne’s parole conditions required him to submit to searches, but he claimed a specific attachment to the agreement exempted him from the use of biometrics to unlock his phone.
The judge dismissed Payne’s claim, emphasizing that the general search condition applied to him as a parolee. Despite his assertion that the attachment superseded the broader search agreement, the court sided with law enforcement. The judge clarified that the general search condition provided enough authority for the officer’s actions. He stated, “the inclusion of Payne’s special search condition did not vitiate the force of his statutorily mandated general search condition, which independently authorized the search at issue in this case.”
The three-judge panel was satisfied that the police could have accomplished the same task “even if Payne had been unconscious” – so they saw no evidence of the suspect and later defendant being driven to engage in self-incrimination.
Namely, the physical action of forcibly pressing the thumb onto the device “did not intrude on the contents of Payne’s mind.”
Another reason the judges sided with the police is that Payne was not made to “acknowledge the existence of any incriminating information” – he was “merely” forced to provide access “to a source of potential information.”
The ruling also addressed Payne’s Fifth Amendment concerns. He claimed that the use of his thumbprint to unlock the device was a testimonial act, as it confirmed his ownership of the phone. However, the court disagreed, noting that using a biometric to unlock a phone doesn’t necessarily relate to the contents within. The judge wrote, “the use of Payne’s thumb to unlock his phone was not a testimonial act and the Fifth Amendment does not apply.” He further explained that while the thumbprint unlock proved to be incriminating, it did not authenticate all the phone’s contents.
This is one of the many gray areas in current US court practice that has to do with new technologies and their applications, often poorly compatible with laws passed long before that technology existed.
And while the circuit court noted that the Supreme Court had not had to deal with the issue of “the compelled use of a biometric to unlock an electronic device (being) testimonial” – the decision, in this case, cited the Supreme Case ruling that the government forcing a person to sign off on disclosure of bank records in 1988 “was not a testimonial production.”
To make matters more complicated, the Court of Appeals noted that the decision “should not be read to extend to all instances where a biometric is used to unlock an electronic device.”
