A recent appeals court ruling from the 9th Circuit, says 4th and 5th Amendment rights were not violated by the forced use of a thumbprint to unlock a device during the search of a parolee. 

According to a recently published opinion from the U.S Court of Appeals for the Ninth Circuit, law enforcement can make an individual unlock their electronic device during a search, even if it means physically forcing the individual to press their thumb against the device. The decision was prompted by a case stemming from a traffic stop between the California Highway Patrol and an individual on parole. The debate sparked questions concerning Fourth and Fifth Amendment rights of the defendant, Jeremy Payne.

From the opinion regarding the Fourth Amendment:

…despite the language of a special search condition of Payne’s parole, requiring him to surrender any electronic device and provide a pass key or code, but not requiring him to provide a biometric identifier to unlock the device, the search was authorized under a general search condition, mandated by California law, allowing the suspicionless search of any property under Payne’s control.

From the opinion regarding the Fifth Amendment:

…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 California Highway Patrol with access to a source of potential information. Accordingly, the Fifth Amendment did not apply.”

The author, Judge Richard C. Tallman made clear that this is generally a complex area of the law and the ruling was specific to the the facts of the case.

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.

For any future cases where a similar line of questions arise, the primary drivers for the outcome will be the unique components of each incident. As far as influence in Maryland, until there is a case rising to the level of the Supreme Court, or one within the Fourth Circuit U.S. Court of Appeals, the recent opinion will be the standing precedent within the Ninth Circuit.

Read the full opinion from the 9th Circuit Court of Appeals.