A federal appeals court has ruled that California police acted within the confines of the law when they forced a suspected drug dealer’s thumb into his phone, unlocking it and providing authorities with a trove of information to help prosecute.
Mr. Payne had previously been convicted of assault with a deadly weapon on a peace officer in 2018 and served three years in prison. As a condition of his parole, he reportedly signed documents agreeing to cooperate with authorities in the event he was asked to allow a search of his property.
During a search of his vehicle, two officers found Mr. Payne’s cell phone and opened it by forcibly pressing it into his thumb while he was handcuffed. After searching through his camera roll, the officers found photos of what they thought was fentanyl in pill form packed into bags. They then used the phone’s map feature to locate the address and used Mr. Payne’s keys to search the residence, finding more than 800 pills. He was charged with intent to distribute fentanyl, fluorofentanyl, and cocaine.
In court, Mr. Payne’s attorneys argued that by forcing him to unlock his phone, the officers “compelled a testimonial communication,” violating both the Fourth Amendment’s protection against unreasonable search and seizure, and the Fifth Amendment’s guarantee against self-incrimination.
The district court denied the motion to suppress the evidence found on both constitutional grounds.
Appeal Denied by Court of Appeals Three Judge Panel
Mr. Payne appealed the motion to suppress the evidence to the U.S. Court of Appeals for the 9th Circuit. In an April 17 ruling by a three-judge panel, Judge Richard C. Tallman, who penned the opinion; Judge Consuelo M. Callahan; and Judge Robert S. Lasnik all agreed unanimously that the two officers had operated within the confines of the law.“CHP officers did not violate the Fourth Amendment in their search, during a traffic stop, of Payne’s cell phone, made possible by the officers’ forced use of his thumb to unlock the device,” Judge Tallman said.
“The search was authorized under a general search condition, mandated by California law, allowing the suspicionless search of any property under Payne’s control.”
Judge Tallman also said that Mr. Payne’s status as a parolee subjected him to “a significantly diminished expectation of privacy.”
Although Mr. Payne’s parole conditions did not specifically require him to “provide a biometric identifier,” the judges ruled that the cell phone unlocking was not a significant enough departure from the conditions to which he agreed to warrant suppressing the evidence.
However, Judge Tallman cautioned against reading the ruling too broadly and said it is not applicable in all cases, just this one.
“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,” Judge Tallman said.
“Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device.”
Judge Tallman said that minor facts, such as whether a person could choose the finger used to unlock a device, could significantly affect the legality of the underlying police action.
“Indeed, the outcome on the testimonial prong may have been different had Officer [Christian] Coddington required Payne to independently select the finger that he placed on the phone,” he said.
The Epoch Times contacted the U.S. Department of Justice for the Central District of California for comment but the request was declined.
