By Alicia Penn
TL:DR[1]: The U.S. Court of Appeals for the D.C. Circuit recently[2] considered the issue of whether making someone unlock their cellphone violates the Fifth Amendment. Their answer is yes.
Case Facts and Procedural History:
Peter Schwartz was indicted for assaulting officers at the Capitol on January 6, 2021. When he was arrested, an agent found a cellphone in his bedroom dresser. The agent asked Schwartz for the password, and Schwartz gave him 3 different ones; however, none of them worked. At some point Schwartz unlocked the phone using his thumbprint.
Schwartz, through counsel, filed a motion to suppress the evidence from his cellphone. He argued he was compelled to open the phone with his thumbprint and that that compulsion violated the 5th and 4th amendments. At the hearing, the agent testified he didn’t remember how he got Schwartz’s fingerprint, but that his ordinary practice was to ask defendants whether they wanted any numbers from their phone to use at the jail. The government ultimately agreed that Schwartz’s unlocking the phone with his thumbprint was involuntary.
The District Court found that the agent compelled Schwartz to unlock his phone, but as the act was not testimonial, there was no Fifth Amendment violation and the good faith exception applied. Schwartz went to trial and was convicted of 11 charges in his indictment and sentenced to 170 months.
Court of Appeals:
The Court of Appeals did not agree with the District Court’s rulings related to Schwartz’s Fifth Amendment claim. It held compelling Schwartz to unlock his phone violated the Fifth Amendment and remanded his judgment to the district court to decide which counts of conviction should be vacated.
The Fifth Amendment states, “[n]o person shall be…compelled in any criminal case to be a witness against himself[.]” U.S. Const. Amend V. “To fall within the Fifth Amendment’s protection, a communication must be testimonial, incriminating, and compelled.” U.S. v. Brown, 2025 U.S. App. LEXIS 129, *27. Everyone agreed the communication was incriminating—unlocking the phone with his thumbprint identified Schwartz as the likely owner and person with access and control over the phone and its incriminating messages. Everyone also agreed the communication was compelled. The only question left was whether it was testimonial.
To figure this question out, the Court referred to two types of cases in Fifth Amendment jurisprudence, (1) physical-trait cases and (2) act-of-production cases, ultimately deciding that both types supported the conclusion that unlocking a phone with a fingerprint is testimonial and that evidence obtained from the phone must be suppressed as fruit of the poisonous tree.
For physical-trait cases, generally the use of someone’s physical trait is not considered testimonial, such as an involuntary blood sample or giving a handwriting sample. However, “the inquiry is contextual” and some physical trait displays can be testimonial, such as the physiological changes in a lie-detector test—think increase in heart rate or sweating. Id. at 29-30. The Court said that putting a thumb on a phone was more like a lie detector test than submitting to a fingerprinting and by doing so a person was saying “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.”” Id. at 30. Another way of thinking of the physical trait doctrine is that the act alone is incriminatory—“testimonial acts are those physical actions that require no additional information to communicate an incriminatory message.” Id. at 31.
For act-of-production cases, the idea is that “physical acts can be communicative wholly aside from the contents of anything produced when the action implies assertions of fact.” Id. at 31-32 [cleaned up]. In this case, because the agent directed Schwartz to open the phone, that act showed his control and knowledge of the phone and his ownership of the data within it. Id. at 34.
The Court also shut down the government’s invocation of the inevitable discovery and good faith doctrines. Schwartz disputed that he was advised of his Miranda rights before being asked for his passwords, and the district court made no findings. Id. at 38-39. Because the record was minimal and the views in it were conflicting, the government didn’t meet its preponderance of evidence burden that it would have obtained the contents of the cellphone lawfully and independently. Id. at 39. The Court also found that the good faith doctrine was inapplicable. Id. at 39-40. The agent testified he didn’t remember relevant facts about how he got Schwartz to use his thumbprint to lock the phone, and didn’t claim to rely on a warrant or other legal authority to open the phone. The search warrant for Schwartz’s house that the government pointed to as justification specifically did not give agents the authority to demand a password or use of a thumbprint unless the agent clarified that a person could refuse and that any information divulged was voluntary, and there was no testimony to that effect.
You can read the full text of the opinion here.
Note:
This blog post is the first in a series summarizing parts of recent court opinions that address the intersection of technology and criminal defense. If there is a case you think you should be featured or want to write a post about one, please email Alicia_penn@fd.org.
[1] Too long; didn’t read. https://www.merriam-webster.com/dictionary/TL%3BDR
[2] Some cases where compelling disclosure of a passcode for a phone violates the Fifth Amendment: United States v. Spencer, 2018 U.S. Dist. LEXIS 70649, 2018 WL 1964588, at *2 (N.D. Cal. Apr. 26, 2018); United States v. Sanchez, 334 F. Supp. 3d 1284, 1298-99 (N.D. Ga. 2018); Matter of Search Warrant Application for [Redacted Text], 279 F. Supp. 3d 800, 806 (N.D. Ill. 2017); SEC v. Huang, 2015 U.S. Dist. LEXIS 127853, 2015 WL 5611644, at *3 (E.D. Pa. Sept. 23, 2015); State v. Valdez, P.3d , 2023 UT 26, ¶ 73 (Utah 2023).
Some cases where compelling disclosure of a passcode doesn’t violate the Fifth Amendment: United States v. Smith, 2023 U.S. Dist. LEXIS 221870, 2023 WL 8611259, at *3 (S.D.N.Y. Dec. 13, 2023); United States v. Cheng, 2022 U.S. Dist. LEXIS 6437, 2022 WL 112025, at *9 (S.D. Tex. Jan. 12, 2022); State v. Andrews, 243 N.J. 447, 234 A.3d 1254, 1274 (N.J. 2020); Commonwealth v. Jones, 481 Mass. 540, 117 N.E.3d 702, 718 (Mass. 2019); State v. Stahl, 206 So. 3d 124, 137 (Fla. Dist. Ct. App. 2016); see also People v. Sneed, N.E.3d , 2023 IL [**68] 127968, ¶ 102 (Ill. 2023).