In United States v. Payne, --- F.4th ---, No. 22-50262 (9th Cir. 2024), the Court affirmed the district court’s denial of Jeremy Travis Payne’s motion to suppress evidence.
This is a lengthy opinion on 4th and 5th amendment issues.
Payne was on California parole with various search conditions. During a traffic stop, and after learning about Payne's parole status, officers forcibly used Payne's thumb to unlock his phone. Officers found incriminating evidence on the phone that led them to his home. They first entered the house without a warrant for protective sweep before returning with a warrant and finding evidence of drug trafficking.
After the district court denied his motion to suppress the evidence, he entered a conditional guilty plea to possession of fentanyl with intent to distribute.
On appeal, Payne argued the compelled use of his thumb and the searches violated his Fourth and Fifth Amendment rights.
First, the Court held the phone search was authorized under Payne's general search condition, mandated by California law, allowing the suspicionless search of any property under his control. It also rejected the argument that the search was unreasonable on a theory that it violated California’s prohibition against arbitrary, capricious, or harassing searches. In addition, the search of Payne’s photos, videos, and maps on his cell phone did not run afoul of Riley v. California, which held that officers cannot search the contents of an individual’s cell phone incident to their arrest, because Riley does not apply to parole searches of a cell phone.
Next, the Court held that the 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 Court 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.
Finally, the Court noted: "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. Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device. Indeed, the outcome on the testimonial prong may have been different had Officer Coddington required Payne to independently select the finger that he placed on the phone."
