Ninth Circuit: 5th Amendment Doesn’t Cover Compelled Production Of Fingerprints To Unlock A Phone

As case law continues to be developed, it continues to look as though the best way to hold onto your Fifth Amendment rights is to secure your devices with a passcode.

There’s no solid consensus at this point, and the Supreme Court has yet to set precedent, but unless law enforcement really screws up while linking an arrestee to a seized device, most courts appear to feel that producing a fingerprint to unlock a phone is pretty much the same thing as producing a fingerprint when being booked. It’s “non-testimonial” — a biometric marker that not only can be used to identify you, but used against you to give law enforcement easy access to an encrypted device.

That’s the decision the Ninth Circuit Appeals Court has reached. The decision [PDF] handed down earlier this month says the Constitution simply does not apply here.

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.

Now, there are a couple of details to this case that may make this a little less open-and-shut than it initially appears. The defendant, Jeremy Payne, was a parolee subject to certain search conditions, which limited his Fourth Amendment protections. A special search condition required Payne to surrender any electronic devices and their passcodes when asked by law enforcement. It did not, however, require him to unlock them using a biometric identifier.

However, the court said it’s pretty much the same thing in this case: he was required to unlock devices, which meant the compelled application of his fingerprint to the phone when stopped by CHP officers followed the spirit of the search conditions, if not the actual letter. It also held that this warrantless search of Payne’s phone during a traffic stop did not violate the Riley decision because — at least according to the Ninth Circuit — Riley’s warrant requirement does not apply to parole searches.

Given this, there’s still a chance the Ninth Circuit could decide compelled production of biometric markers does violate the Fifth Amendment in other cases where parole search conditions aren’t involved. But it would take a very specific set of details to obtain this ruling and, like this one, the ruling would not generally apply to compelled fingerprint production, since it’s clear the court here feels it’s no different than compelling fingerprint production during the booking process.

If Payne decides to appeal this, the Supreme Court could decide to set precedent on this issue. But even if this is appealed, it seems unlikely the nation’s top court would find this set of details broad enough to feel comfortable establishing precedent that could possibly affect all Americans, not just those subject to special search conditions while on parole.

So, while this decision certainly doesn’t work out for Jeremy Payne, it’s narrow enough that compelled production of fingerprints is still a question open enough it may be reconsidered by this same court at some point in the future. But from what we’ve seen so far while following this issue, the best way to retain your Fifth Amendment rights is to secure devices with passwords/passcodes rather than some part of your body.