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LU Ref# CAI00046
May 1, 2024
Author Ref. No: Vol. 29 No 5
LU Ref# CAI00046
May 1, 2024
Author Ref. No:   Vol. 29 No 5

Robert Phillips
Deputy District Attorney (Retired)

“My parents spanked me as a child. As a result, I now suffer from a psychological condition known as ‘respect for others.’”
Emerging Legal Issues in Compelling the Use of One’s Fingerprint to Open a Phone
COURT CASE REFERENCE: People v. Ramirez (Dec. 22, 2023) 98 Cal.App.5th 175

A separate statement of probable cause, and a request to use reasonable force if necessary, becomes a part of a search warrant when specifically incorporated by reference. An officer’s good faith, absent settled law to the contrary, allows for the execution of a search warrant even if the warrant is later found to be legally inadequate. The use of a suspect’s fingerprint to unlock his cellphone, the contents of the cellphone being non-testimonial, does not violate the subject’s Fifth Amendment privilege against self-incrimination.   Also, with law enforcement already knowing what the cellphone contains, the “foregone conclusion doctrine” applies, allowing law enforcement to search and seize the cellphone’s contents. A suspect’s due process rights are not violated by a law enforcement officer forcing a suspect to use his fingerprint to open his cellphone when the force used is minimal and insignificant.
Defendant Alfredo Ramirez, as a high school student and into adulthood, preferred younger girls. When in high school (his age is not mentioned), he dated a 15-year-old girl, listed simply as “M.” The couple got pregnant and then married. M, however, was one of 12 children in her family, with at least three younger sisters who are referred to here as Jane Does #2, #3, and #4. The three Jane Does were between the ages of nine and 13 during the events described here.  During the years Ramirez and M lived together as husband and wife, he often pressured her into having her three sisters sleep over at their house, intentionally excluding M’s brothers. When they visited, Ramirez would take them to places like a boardwalk, a swimming pool, and an amusement park. All three Jane Does eventually complained to their mother, however, that Ramirez habitually came into their bedroom at night and undid, or completely removed, their clothing, sometimes touching them inappropriately.   Jane Doe #2 also reported that Ramirez took her to a swimming pool, where she wore a bikini he had bought for her. While at the pool, Ramirez repeatedly threw her in the air, lifting her top each time, and touching her breasts as she came back down in the water.   In 1996, the three Jane Does reported Ramirez’s illicit acts (described in considerably more detail in the written case decision) to their mother, who filed a complaint with police. For unexplained reasons, the case was never submitted for prosecution. Even so, Ramirez was apparently contacted by police in that he called the girls’ mother that same day, asking her who had reported him. When told that she did, he “desperately pleaded” with her that she needed “to drop everything” because if she didn’t, it would harm his marriage to M and he’d have to move out of town. Because the police dropped the ball, however, Ramirez was left to continue his sexual acts on young girls.   By August 2018 — 22 years after the above, and after being divorced from M — Ramirez went after another young girl, his cousin’s daughter, called Jane Doe #1, whose age is not mentioned in the decision. Ramirez had a daughter with another woman and Jane Doe #1 slept over at his home with this newest daughter. On August 5, Jane Doe #1 complained to her mother that she did not want to sleep over at Ramirez’s house again because he was “weird.” When asked what she meant, she described how defendant had pulled down her pants and took pictures of her with his cellphone.  Jane Doe #1’s mother reported this to the Salinas Police Department, providing them with a photograph of her daughter depicting the clothing she had been wearing that night. Detective Gabriel Gonzalez took over the investigation, interviewing all four Jane Does. He then obtained several search warrants for Ramirez’s home, vehicles, cellphone, and iPad. After executing the warrants and arresting Ramirez, the detective obtained what the court referred to as a “communications search warrant” for the contents of Ramirez’s cellphone. Executing this warrant, Detective Gonzalez forced Ramirez to unlock his cellphone with a fingerprint.   In the phone, the detective found “dozens of images of young girls,” with many “focused on the buttocks of these young girls.” During a second warrant-authorized search of Ramirez’s cellphone, after the cellphone had locked again, Detective Gonzalez found three videos of Jane Doe #1 wearing the same clothing as in the photograph the girl’s mother had provided to the police. These videos each depicted Jane Doe #1 lying in bed with her eyes closed as the camera approached and a hand, coming from behind the camera, pulled down her shorts and touched her genitals. Ramirez was charged in state court with multiple counts of using a minor for sex acts (P.C. § 311.4(c)), possession of matter depicting a minor engaging in sexual conduct (P.C. § 311.11(a)), and lewd or lascivious act upon child (P.C. § 288(a)), plus enhancements for committing the offenses against multiple victims (P.C. §§ 667.61(b) & (e)(4), and 1203.066(a)(7).)   After the trial court denied Ramirez’s motion to suppress, a jury convicted him of all the above, resulting in a prison sentence of 107 years to life. He appealed.