Posted on 04/19/2024 12:39:09 PM PDT by nickcarraway
The 9th Circuit determined that forcibly mashing a suspect's thumb into his phone to unlock it was akin to fingerprinting him at the police station. JOE LANCASTER | 4.19.2024 12:50 PM
As we keep more and more personal data on our phones, iPhone and Android devices now have some of the most advanced encryption technology in existence to keep that information safe from prying eyes. The easiest way around that, of course, is for someone to gain access to your phone.
This week, a federal court decided that police officers can make you unlock your phone, even by physically forcing you to press your thumb against it.
In November 2021, Jeremy Payne was pulled over by two California Highway Patrol (CHP) officers over his car's window tinting. When asked, Payne admitted that he was on parole, which the officers confirmed. After finding Payne's cellphone in the car, officers unlocked it by forcibly pressing his thumb against it as he sat handcuffed. (The officers claimed in their arrest report that Payne "reluctantly unlocked the cell phone" when asked, which Payne disputed; the government later accepted in court "that defendant's thumbprint was compelled.")
The officers searched through Payne's camera roll and found a video taken the same day, which appeared to show "several bags of blue pills (suspected to be fentanyl)." After checking the phone's map and finding what they suspected to be a home address, the officers drove there and used Payne's keys to enter and search the residence. Inside, they found and seized more than 800 pills.
Payne was indicted for possession with intent to distribute fentanyl and cocaine.
In a motion to suppress, 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. Even though the provisions of his parole required him to surrender any electronic devices and passcodes, "failure to comply could result in 'arrest pending further investigation' or confiscation of the device pending investigation," not the use of force to make him open the phone.
The district court denied the motion to suppress, and Payne pleaded guilty. In November 2022, he was sentenced to 12 years in prison. Notably, Payne had only served three years for the crime for which he was on parole—assault with a deadly weapon on a peace officer.
Payne appealed the denial of the motion to suppress. This week, in an opinion authored by Judge Richard Tallman, the U.S. Court of Appeals for the 9th Circuit ruled against Payne.
Searches "incident to arrest" are an accepted part of Fourth Amendment precedent. Further, Tallman wrote that as a parolee, Payne has "a significantly diminished expectation of privacy," and even though the conditions of his parole did not require him to "provide a biometric identifier," the distinction was insufficient to support throwing out the search altogether.
But Tallman went a step further in the Fifth Amendment analysis: "We hold that the compelled use of Payne's thumb to unlock his phone (which he had already identified for the officers) required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking," he wrote. "The act itself merely provided CHP with access to a source of potential information."
From a practical standpoint, this is chilling. First of all, the Supreme Court ruled in 2016 that police needed a warrant before drawing a suspect's blood.
And one can argue that fingerprinting a suspect as they're arrested is part and parcel with establishing their identity. Nearly half of U.S. states require people to identify themselves to police if asked.
But forcibly gaining access to someone's phone provides more than just their identity—it's a window into their entire lives. Even cursory access to someone's phone can turn up travel history, banking information, and call and text logs—a treasure trove of potentially incriminating information, all of which would otherwise require a warrant.
When they drafted the Fourth Amendment, the Founders drew on the history of "writs of assistance," general warrants used by British authorities in the American colonies that allowed government agents to enter homes at will and look for anything disallowed. As a result, the Fourth Amendment requires search warrants based on probable cause and signed by a judge.
Tallman does note the peculiar circumstances of the case: "Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device." But, he adds, "the outcome…may have been different had [the officer] required Payne to independently select the finger that he placed on the phone" instead of forcibly mashing Payne's thumb into it himself.
And, apparently, you have your panties in a twist because someone doesn’t agree with you?
This decision usurps the Constitutional protections against illegal search, IMO.
There are many supporters of the police state here. Always has been. Most of us already know on which side gator firmly stands.
I know, but I have to keep asking him. Someday he might think rationally and surprise me. :)
“This decision usurps the Constitutional protections against illegal search, IMO.”
While that is a gray area because he was a parolee. It is absolutely forced self incrimination for sure.
Forced self incrimination should always be a huge no no in any and all cases. Especially physical forced self incrimination. That is akin to torture to get a confession.
“But it is another cup of lard on the slippery slope, I’ll grant you.”
Thank you for the wise logic.
Here is the problem. In our current dysfunctional unconstitutional justice system, this is just one case away from being misinterpreted and taken out of context by a different (unquestioned) judge in another case in another court and being applied to a non-parolee. That will set precedent for all future cases universally.
It will then be law until taken to the Supreme Court and struck down. Then the individual states will defy the Supreme Court and practice it anyhow. We should have learned by now that all things that give the current justice system one inch they will abuse into a mile if they can get away with it.
This current real pattern is pretty much unquestionable.
Parolees agree to let the police search them as a condition of parole. So no constitutional violation.
“Someday soon the government may force us to carry a phone at all times.”
Someday soon, elected constitutional sheriffs may arrest all gestapo cops operating in their county.
But they cannot force self incrimination.
This is not about him being a parolee, this is about this ruling being used in the future to self incriminate non-parolees.
You don’t see the pattern in how this really works yet? The seed is being planted.
Again... Today parolees tomorrow everyone universally.
Bet on it....
“And, apparently, you have your panties in a twist because someone doesn’t agree with you?”
Obviously you have no idea of the facts.
“This decision usurps the Constitutional protections against illegal search, IMO.”
It is a legal search. Courts since when have ruled that inmate and parolees don’t have that protection!
“While that is a gray area because he was a parolee. It is absolutely forced self incrimination for sure.”
The law requires him to submit to searches including giving up his phone.
“There are many supporters of the police state here. Always has been. Most of us already know on which side gator firmly stands.”
I support the facts. Try learning the facts before posting.
I am guessing you are a fighter for more inmate and parolee rights.
Wow. You and I can have our national convention in the former phone booth behind an abandoned video rental building next to the newsstand.
I have a burner phone like other criminals for calling car emergency service.
Nonsense.
It is akin to taking the keys out of my pocket and opening the door to my house in order to illegally search it.
Fingerprinting is used for identification at a police station, not as keys to a lock. This should be overturned.
It's why I only use a PIN or pattern swipe. I have no biometrics on my devices.
-PJ
We both read the same facts.
We disagree.
That is why it’s America.
But, you have a great day...
Lol! The decision cites the specific law so no danger of being misinterpreted. Access by police to cellphones prior to conviction is well established.
Did these justices get their law degrees from a box of Cap’n Crunch?
“We both read the same facts.
We disagree.
That is why it’s America.
But, you have a great day...”
The parolee gives up rights. A condition of parole is to submit to searches and turn over his phone.
Do you also think that searches of parolees person and abode are unconstitutional?
This is the seed to change that...
“This is the seed to change that...”
Your logic implies that since a warrant is not needed to search s parolee’s house some judge will decide that warrantless searches of suspects’ homes is legal thus we should make it a law that a warrant is required to search a parolee’s home.
America is finished. Those with intelligence and economic means will be leaving.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.