A federal appeals court concluded that the constitutional protection against self-incrimination did not preclude California police from forcing a suspected drug dealer to unlock his cellphone with a thumbprint.
The United States Court of Appeals for the Ninth Circuit ruled against Jeremy Travis Payne on Wednesday, rejecting his constitutional claims to the admissibility of evidence gathered after highway cops forced him to unlock his phone. The court stated that the verdict in Payne’s case was clear, but it does not imply that police can force people to unlock their personal devices in all instances. Rather, the court stated that the issue boils down to the type of thinking process required for unlocking and that the surrounding factors, such as whether a person was allowed to choose which finger to use to unlock a phone, might make the difference in legality.
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In 2018, the court found Payne guilty of assault with a deadly weapon on a peace officer, sentenced him to three years in prison, and subsequently released him on parole. As a condition of his release, Payne signed documentation promising to cooperate with various types of searches if requested. While on parole in 2021, authorities caught Payne and charged him with possessing fentanyl, fluorofentanyl, and cocaine with the intent to distribute. During a traffic check, California Highway Patrol (CHP) officers ordered Payne to unlock his phone using his fingerprint.
When the phone was unlocked, officers discovered multiple recordings of Payne inside a room packed with pills presumed to be fentanyl and a money-counting machine; investigators also discovered a map with dropped pins that directed them to the area depicted in the video, which was certainly full of drugs.
Payne filed Fourth and Fifth Amendment challenges to the authorities’ coercive use of his thumbprint. The district court rejected Payne’s move to suppress evidence on both constitutional grounds. Later, Payne entered a guilty plea and received a twelve-year jail sentence. Payne appealed the move to suppress to the Ninth Circuit and Bill Clinton’s appointment. United States Circuit Judge Richard C. Tallman wrote the opinion for the unanimous three-judge panel. The panel also featured U.S. Circuit Judge Consuelo M. Callahan, a George W. Bush appointee, and U.S. District Judge Robert S. Lasnik, a Clinton appointee who served by designation.
Tallman rejected Payne’s Fourth Amendment argument, arguing that his status as a parolee gave him “a significantly diminished expectation of privacy.” According to Tallman, Payne signed several agreements requiring him to disclose any device for search without justification. The panel determined that, while Payne’s parole conditions did not directly require him to “provide a biometric identifier,” the cellphone unlocking was not a major enough departure from the conditions to justify withholding the evidence.
Tallman stated that the Fifth Amendment allegation hinged on whether coerced use of the thumb-unlock mechanism was “testimonial” in character and found that it was not. As a result, the officer’s coerced use of the unlock in Payne’s case did not violate the Fifth Amendment.
“Compelled physical acts—ii.e., those that require an individual to serve as a ‘donor’ —are not testimonial,” he said. The unlocking process was compared to a blood draw or fingerprinting at the time of booking, according to Tallman. Rather than being “testimony” for the purposes of the Fifth Amendment, those actions “required no cognitive exertion” and simply “compelled] an individual to provide law enforcement with access to an immutable physical characteristic,” according to the court.
Tallman compared the Payne case to a 2000 U.S. Supreme Court decision that stated that giving police a safe combination is not the same as giving them a key. Because supplying a thumb-unlock is more akin to handing over a key—an action that involves “no mental process”—it does not constitute “testimony” under the Fifth Amendment.
The court, however, warned against reading its decision too liberally.
“We would be remiss not to mention that Fifth Amendment questions like this one are highly fact-dependent, and the line between what is testimonial and what is not is particularly fine,” he wrote. We should not interpret our opinion to encompass all situations in which a biometric unlocks an electronic device.
Tallman ended his self-incrimination analysis by emphasizing that seemingly little details, such as whether a person could pick which finger was used to unlock a device, could have a big impact on the legality of the underlying police action.
“Indeed, the outcome on the testimonial prong may have been different had Officer Coddington required Payne to independently select the finger that he placed on the phone,” Tallman went on to say.
