MN: 5A not violated by order to use fingerprint to open cell phone for search

By John Wesley Hall
Law Offices of John Wesley Hall
Jan 23, 2017

Defendant’s cell phone was properly seized, and the order compelling him to provide his fingerprint to unlock the phone didn’t violation his privilege against self-incrimination because there was nothing testimonial about it. State v. Diamond, 2017 Minn. App. LEXIS 9 (Jan. 17, 2017):

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V; see Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493-94, 12 L. Ed. 2d 653 (1964) (incorporating Fifth Amendment protections into the Due Process Clause of the Fourteenth Amendment). “The essence of this basic constitutional principle is the requirement that the [s]tate which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” Estelle v. Smith, 451 U.S. 454, 462, 101 S. Ct. 1866, 1872, 68 L. Ed. 2d 359 (1981) (quotation and emphasis omitted). The Supreme Court has explained that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.” Fisher v. United States, 425 U.S. 391, 409, 96 S. Ct. 1569, 1580, 48 L. Ed. 2d 39 (1976). Here, the record establishes that Diamond was compelled to produce his fingerprint to unlock the cellphone. The record also reflects that police obtained incriminating evidence once the cellphone was unlocked. Therefore, the question before this court is whether the act of providing a fingerprint to unlock a cellphone is a “testimonial communication.”

In examining its application of Fifth Amendment principles, the Supreme Court has established that, “in order to be testimonial, [a criminal defendant’s] communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” Doe v. United States, 487 U.S. 201, 210, 108 S. Ct. 2341, 2347-48, 101 L. Ed. 2d 184 (1988). The Supreme Court has further noted that

[t]his understanding is perhaps most clearly revealed in those cases in which the Court has held that certain acts, though incriminating, are not within the privilege. Thus, a suspect may be compelled to furnish a blood sample; to provide a handwriting exemplar, or a voice exemplar; to stand in a lineup; and to wear particular clothing.

Id. at 210, 108 S. Ct. at 2347 (citing United States v. Dionisio, 410 U.S. 1, 7, 93 S. Ct. 764, 768, 35 L. Ed. 2d 67 (1973) (voice exemplar); Gilbert v. California, 388 U.S. 263, 266-67, 87 S. Ct. 1951, 1953, 18 L. Ed. 2d 1178 (1967) (handwriting exemplar); United States v. Wade, 388 U.S. 218, 221-22, 87 S. Ct. 1926, 1929, 18 L. Ed. 2d 1149 (1967) (lineup); Schmerber v. California, 384 U.S. 757, 765, 86 S. Ct. 1826, 1832-33, 16 L. Ed. 2d 908 (1966) (blood sample); Holt v. United States, 218 U.S. 245, 252-53, 31 S. Ct. 2, 6, 54 L. Ed. 1021 (1910) (clothing)). In addition, the Supreme Court has recognized that “both federal and state courts have usually held that [the Fifth Amendment] offers no protection against compulsion to submit to fingerprinting.” Schmerber, 384 U.S. at 764, 86 S. Ct. at 1832; see Doe, 487 U.S. at 219, 108 S. Ct. at 2352 (Stevens, J., dissenting) (“Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will.”); State v. Breeden, 374 N.W.2d 560, 562 (Minn. App. 1985) (“The gathering of real evidence such as blood samples, fingerprints, or photographs does not violate a defendant’s [F]ifth [A]mendment rights.”).

Diamond relies on In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012), to support his argument that supplying his fingerprint was testimonial. In In re Grand Jury, the court reasoned that requiring the defendant to decrypt and produce the contents of a computer’s hard drive, when it was unknown whether any documents were even on the encrypted drive, “would be tantamount to testimony by [the defendant] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Id. at 1346. The court concluded that such a requirement is analogous to requiring production of a combination and that such a production involves implied factual statements that could potentially incriminate. Id.

By being ordered to produce his fingerprint, however, Diamond was not required to disclose any knowledge he might have or to speak his guilt. See Doe, 487 U.S. at 211, 108 S. Ct. at 2348. The district court’s order is therefore distinguishable from requiring a defendant to decrypt a hard drive or produce a combination. See, e.g., In re Grand Jury, 670 F.3d at 1346; United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (holding that requiring a defendant to provide computer password violates the Fifth Amendment). Those requirements involve a level of knowledge and mental capacity that is not present in ordering Diamond to place his fingerprint on his cellphone. Instead, the task that Diamond was compelled to perform—to provide his fingerprint—is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing. See Doe, 487 U.S. at 210, 108 S. Ct. at 2347-48.

Diamond argues, however, that the district court’s order effectively required him to communicate “that he had exclusive use of the phone containing incriminating information.” This does not overcome the fact that such a requirement is not testimonial. In addition, Diamond provides no support for the assertion that only his fingerprint would unlock the cellphone or that his provision of a fingerprint would communicate his exclusive use of the cellphone.

Diamond also argues that he “was required to identify for the police which of his fingerprints would open the phone” and that this requirement compelled a testimonial communication. This argument, however, mischaracterizes the district court’s order. The district court’s February 11 order compelled Diamond to “provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone.” At the April 3 contempt hearing, the district court referred to Diamond providing his “thumbprint.” The prosecutor noted that they were “not sure if it’s an index finger or a thumb.” The district court answered, “Take whatever samples you need.” Diamond then asked the detectives which finger they wanted, and they answered, “The one that unlocks it.”

It is clear that the district court permitted the state to take samples of all of Diamond’s fingerprints and thumbprints. The district court did not ask Diamond whether his prints would unlock the cellphone or which print would unlock it, nor did the district court compel Diamond to disclose that information. There is no indication that Diamond would have been asked to do more had none of his fingerprints unlocked the cellphone. Diamond himself asked which finger the detectives wanted when he was ready to comply with the order, and the detectives answered his question. Diamond did not object then, nor did he bring an additional motion to suppress the evidence based on the exchange that he initiated.

In sum, because the order compelling Diamond to produce his fingerprint to unlock the cellphone did not require a testimonial communication, we hold that the order did not violate Diamond’s Fifth Amendment privilege against compelled self-incrimination.