DC Appeals Court: Compelling Fingerprint Production To Unlock Phones Violates Fifth Amendment
Well, well, well: let’s get this circuit split started!
In completely unexpected news, the DC Court of Appeals has ruled [PDF] that compelling someone to unlock a device using their finger is a violation of Fifth Amendment protections that disallow forcing someone to testify against themselves. (h/t Gabriel Malor on Bluesky)
Most courts have ruled the other way: that biometric markers aren’t “testimonial.” (That includes the Ninth Circuit Appeals Court.) They’re just things anyone can observe by looking at someone, even if the “observation” takes the form of placing a finger on a phone’s fingerprint reader. If cops can fingerprint you when you’re being booked, it’s not all that dissimilar from demanding they apply those same fingerprints to their locked devices until they’re unlocked.
That’s not how the DC Appeals Court sees it, however. In a case involving three J6 insurrection suspects (this is pre-Trump pardons), the top court in the area that the FBI does a whole lot of business in has made it clear this isn’t acceptable… at least not the way it was performed here.
Only one of the suspects challenged the digital evidence against them. (But all three defendants had problems with “assault with a deadly weapon” charges, arguing that pepper spray and thrown folding chairs are not actually “deadly.” The court disagrees.)
Defendant Peter Schwartz ends up being the inadvertent constitutional hero in this ruling, much to the federal government’s dismay. Schwartz had already been arrested by the FBI and was sitting in an FBI vehicle when he was approached by Agent Michael Nealon. Here’s how things unfolded past that point:
During the search, Agent Nealon found a black cellphone on the bedroom dresser in Schwartz’s one-bedroom apartment. Agent Nealon then approached Schwartz and asked for the password to the phone. Schwartz offered three options, which Agent Nealon tried, but none unlocked the device.
Agent Nealon returned to the vehicle and was “able to obtain Mr. Schwartz’s thumbprint to open the phone.” Agent Nealon, however, did not “recall precisely how that was done” and did not “remember the conversation” he had with Schwartz. The agent testified that his “ordinary practice” was to ask whether the person in custody “wishe[d] to have any numbers accessed so that they c[ould] be provided” for use at the jail.
Yep, that’s the trick lots of law enforcement officers use. They give the phone back to the suspect to unlock so they can retrieve numbers and then take it back before it gets locked up again so they can avoid the legal hassle of asking a court to compel production of passcodes/biometrics. It’s much more difficult to get the former without raising Fifth Amendment issues. Until now, it’s been a whole lot easier to talk courts into compelling production of biometric features, like fingers, eyes, and faces.
But it’s the agent’s uncertainty of how this all plays out that costs the DOJ its evidence. It’s also the fact that the subsequent search warrant for the phone was based on information obtained during this questionable demand that Schwartz unlock the phone found in the house.
In fact, the government admitted as much during the lower court’s handling of the suppression motion by Schwartz. It said the production of the fingerprint had been “compelled,” putting it on the record that Schwartz’s compliance was involuntary.
The lower court didn’t necessarily like this but said it ultimately didn’t matter because a fingerprint isn’t “testimonial.” It also said the good faith exception applied because there’s no precedent saying otherwise.
The DC Appeals Court says these sorts of things usually aren’t testimonial. It compares fingerprints to blood samples, providing handwriting samples, and standing in a police lineup. But there’s a huge difference when it comes to utilizing these things to unlock a device so law enforcement can search its contents. It’s more comparable to lie detector tests, which utilize physical and physiological reactions to infer testimony from suspect’s reactions to questions.
Though placing a thumb on a phone may seem akin to submitting to fingerprinting or providing a handwriting exemplar, the act, as performed here, is much closer to responding to a lie detector test or complying with a command to say a password. When Schwartz was ordered to open the cellphone, his act of unlocking the phone represented the thoughts “I know how to open the phone,” “I have control over and access to this phone,” and “the print of this specific finger is the password to this phone.” If Schwartz had instead been compelled to disclose whether he could open the phone, and made to say yes or to verbally disclose the password, those answers unquestionably would be testimonial communications. The compelled opening of the cellphone that occurred here is no different.
And that means compelled production of biometric markers to unlock devices is a violation of the Constitution.
Because the compelled opening of the cellphone was testimonial, both the message communicated by that action and any evidence obtained from that communication must be suppressed.
That also nukes the FBI’s search warrant, because the probable cause asserted relied on information obtained during this first, illegal search of Schwartz’s phone.
The government tried to argue that both inevitable discovery and the good faith exception applied. The DC Appeals Court disagrees.
First, it’s not a foregone conclusion that the FBI would have inevitably been able to access the contents of the phone without Schwartz unlocking it. And, while the FBI did utilize a variation of the passcodes Schwartz had given them during his arrest (the three versions that did not unlock the phone), it admitted this, too, was the compelled production of testimony from Schwartz. So, that ends the inevitable discovery discussion.
And here’s how the court dispenses of the FBI’s “good faith” attempt:
To start, the government cannot show good faith here because the officer could not remember the relevant facts of how he compelled Schwartz to open the phone. In particular, at no point did the officer claim to have relied upon the warrant or any other relevant legal authority as empowering him to compel Schwartz to open his phone.
Nor could the agent have. The warrant expressly withheld authority to “demand” that Schwartz provide the password or “identify the specific biometric characteristics (including the unique finger(s) or other physical features) that may be used to unlock or access the Device(s)[,]” unless the agents “ma[d]e clear that providing any such information is voluntary and that [Schwartz] [wa]s free to refuse the request.” The good faith exception does not apply when officers fail to comply with express limitations in the warrant.
[…]
Finally, the government fails to provide any developed argument in support of extending the good faith exception to the Fifth Amendment, offering only a cursory footnote. So the argument is forfeited, and we need not decide whether the good faith exception applies to Fifth Amendment violations.
Away goes all of this evidence. (The government might still have had enough secondhand evidence to continue to pursue assault charges, though that’s probably over thanks to the pardons.)
Pre-Trump the government would certainly appeal this ruling. There’s nothing else like it at the appellate level so it would be stupid not to. But the Trump pardons now make it messy. But still, the Appeals Court ruling stands, and that means the FBI should probably be doublechecking some of its other cases to make sure its agents didn’t make the same sort of (non-harmless) errors in other investigations.