As we store more and more personal data on our phones, iPhones and Android devices now have some of the most advanced encryption technologies in existence to keep that information safe from prying eyes. The easiest way around this, of course, is for someone to have access to your phone.
This week, a federal court ruled that police officers can do so Do you unlock your phone, even physically forcing yourself to press your thumb against it.
In November 2021, Jeremy Payne was stopped by two California Highway Patrol (CHP) officers for tinting his car windows. When asked, Payne admitted he was on parole, which officers confirmed. After finding Payne’s cellphone in the car, officers unlocked it by forcibly pressing their thumb against it while he was handcuffed. (The officers stated in their arrest report that Payne “reluctantly unlocked the cell phone” when asked, which Payne disputed; the government later accepted in court “that the defendant’s fingerprint had been forced.”)
Officers searched 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 map and finding what they suspected was a home address, officers went there and used Payne’s keys to enter and search the residence. Inside they found and seized more than 800 pills.
Payne was charged with possession with intent to distribute fentanyl and cocaine.
In a motion to suppress, Payne’s lawyers argued that by forcing him to unlock his phone, the officers “coerced a witness communication,” violating both the Fourth Amendment’s protection against unreasonable searches and seizures and the Fifth Amendment’s guarantee against ‘self-incrimination. Although the provisions of his parole required him to surrender any electronic devices and passcodes, “failure to do so could result in arrest pending further investigation or confiscation of the device pending investigation,” not use of force to force him to 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 served only 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.
“Accident of arrest” searches are an accepted part of Fourth Amendment precedent. Furthermore, 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 l canceling the search. at all.
But Tallman went further in his Fifth Amendment analysis: “We believe that Payne’s forced use of his thumb to unlock his phone (which he had already identified
for officers) required no cognitive effort, placing it firmly in the same category as a blood draw or fingerprint taken at the time of booking,” he wrote. “The act itself simply provided the CHP with access to a source of potential information”.
From a practical point of view, this is chilling. First, the Supreme Court ruled in 2016 that police needed a warrant before drawing a suspect’s blood.
And it can be argued that fingerprinting a suspect while he is being arrested is integral to establishing his identity. Nearly half of American states require people to identify themselves to the police if asked.
But gaining forced access to someone’s phone provides more than just their identity: it’s a window into their entire life. Even cursory access to someone’s phone can reveal travel history, banking information, and call and text logs – a treasure trove of potentially incriminating information that would otherwise require a warrant.
When drafting the Fourth Amendment, the Founders drew inspiration from 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 search anything unauthorized. Accordingly, the Fourth Amendment requires search warrants based on probable cause and signed by a judge.
Tallman points out the unique circumstances of the case: “Our opinion should not be interpreted as extending to all cases in which a biometric device is used to unlock an electronic device.” But, he adds, “the outcome … could have been different [the officer] required Payne to independently select the finger he had placed on the phone” instead of forcibly crushing it with Payne’s thumb.