• Inventory Searches
• Good Faith Searches and Police Department Policy

When an individual is lawfully arrested and brought to a police station for booking, the police may conduct an inventory search of that individual’s belongings as part of the booking process even though the person is ultimately released without being booked, and even though his belongings are not searched until some hours after his arrest.  The only issue in such a case is whether the officer acted in good faith and in substantial compliance with police department policy.

Two Anchorage, Alaska, police officers, responding to a call at around 2:30 a.m. about gunshots being fired at an apartment, encountered defendant Markanthony Sapalasan and another individual walking away from the apartment.  Defendant was observed to be carrying a backpack.  He also had a semiautomatic pistol visibly sticking out of his front pants pocket.  Defendant was therefore detained and searched.  The pistol was determined to be loaded, with one round in the chamber and one round missing from the magazine.  Arrested and handcuffed, defendant’s backpack was retrieved.  One of the officers—Officer Tae Yoon—requested and received defendant’s permission to search it.  Nothing of any significance was found in the backpack, however.  Other officers in the meantime found a dead individual in the apartment house with a single gunshot wound.  Defendant was therefore transported to the police station where, after being questioned by detectives, was (amazingly) released.  While defendant was being interviewed, Officer Yoon (still in possession of defendant’s backpack) returned to the field to finish his shift.  When he later returned to the station, Officer Yoon finally got around to conducting a detailed inventory search of defendant’s backpack, done about six hours after defendant’s initial arrest.  In this search, the officer found a significant amount of methamphetamine.  A search warrant was obtained at around 8:22 a.m. for the purpose of completing the search of the backpack (during which, apparently, nothing else of any evidentiary value was discovered).  Defendant was charged in federal court with one count of Possession with the Intent to Distribute Methamphetamine, and one count of Possession of a Firearm in Furtherance of a Drug Trafficking Crime.  (Nothing is mentioned in this case decision about whether there was any evidence of defendant’s possible connection to the dead body found at the apartment, so we have to assume that there was not.)   Defendant’s motion to suppress the methamphetamine was denied by the trial court.  Found guilty of all charges, defendant appealed. 

The Ninth Circuit Court of Appeals, in a split (2-to-1) decision, affirmed.  First, the Court determined that it did not need to decide whether the initial search of the backpack in the field was lawful—i.e., was his defendant’s valid—in that (aside from the fact that nothing was found) even if it was not, the later inventory search of the backpack at the station was, per the majority, lawful.  The general rule is simple: “When an individual is lawfully brought to a police station for booking into jail, the police may conduct an inventory search of that individual’s belongings as part of the booking process.”  (Citing Illinois v. Lafayette (1983) 462 U.S. 640.)  Defendant here conceded on appeal that he was lawfully arrested on probable cause, and that it was also lawful to separate him from his backpack while being transported to the station and while he was being questioned.  The issue was whether it was lawful to search his backpack some six hours after defendant was arrested, but after he had been released and without having completed the booking process. “In Lafayette, the Supreme Court held that under the?Fourth Amendment, ‘it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police stationhouse incident to booking and jailing the suspect.’” (Id., at p. 643.)  The Court held that even though defendant, as it later turned out, was never booked (being released after questioning), this fact is irrelevant so long as when first arrested, defendant was lawfully separated from his backpack and booking was intended.  It must also be shown that the inventory search as conducted satisfied “reasonable police regulations and be administered in good faith.”  Defendant did not contest Officer Yoon’s good faith. So the only issue here was whether the inventory search was in compliance with Anchorage Police Department policy.  Noting that even though Officer Yoon failed to conduct the inventory search “immediately,” as required by Anchorage Police Department policy, the Court held that it was close enough; i.e., that searching the backpack six hours after defendant’s arrest constituted “substantial compliance,” and therefore “sufficiently followed Department policy to constitute a lawful inventory search.”  Lastly, the Court rejected defendant’s argument that such a search required that the officer have “probable cause” to believe the backpack contained sizeable evidence, holding simply that “probable cause to search is irrelevant in inventory searches.”  The trial court, therefore, properly denied defendant’s motion to suppress. 

The Court declined to discuss the fact that defendant had expressly consented to the search of his backpack upon his initial arrest, which seems to me makes unnecessary all this discussion concerning the legality of a later inventory search.  Or, maybe not, depending upon how long that consent to search remained valid, and whether his subsequent release from custody cut off the legal effectiveness of his consent. But either way, it’s nice to have an appellate court decision discussing the law on inventory searches of an arrestee’s backpack, and how his release without booking might affect the applicability of this rule.  It’s also interesting to note, however, that there is no discussion about what the law might be had defendant, upon his release without being booked, asked for the return of his backpack. The dissenting opinion notes that Illinois v. Lafayette, cited by the majority, involved a situation where the defendant was in fact booked.  In this current case, the investigating detectives apparently decided upon interviewing Sapalasan that there was insufficient evidence to connect him to the murder of the person found in the apartment house.  The dissent argues that because defendant was never booked, but instead released, the law on inventory searches does not apply; an argument that makes a lot of sense although directly contrary to the rule as set out by the majority opinion.  Per the dissent: “Neither the government nor the majority have cited a published case upholding a stationhouse inventory search of someone’s belongings who was not also in the process of being booked and incarcerated.”  To the contrary, citing Alaskan state law, the dissent makes the very plausible argument that absent the defendant actually being booked, an inventory search of his backpack was illegal and should have instead been returned to him upon his release from custody whether or not he asked for its return.  I personally found the dissent to provide the stronger argument, making it all the more important to consider the legal effect of the defendant’s earlier verbal consent (i.e., was it made “freely and voluntarily,” and how long did it remain legally effective?).  This decision, therefore, should perhaps be reconsidered en banc (i.e., by an eleven-justice panel) and/or taken up to the U.S. Supreme Court.

• Searches of a vehicle on less than probable cause are illegal. 
• Once the reasonable suspicion of a group engaging in criminal activity dissipates via the arrest of one member of the group, all the other members must be released. 
• Probable Cause Searches of a Vehicle
• Vehicle Searches Conducted during an Unlawfully Prolonged Detention
• Prolonged Detentions and De Facto Arrests

The warrantless search of a person’s vehicle under the Automobile Exception requires that there be probable cause.  The recovery of a firearm from another person at the scene, with all those present being gang members, does not provide the necessary probable cause.  A continued detention of everyone at the scene of one subject’s arrest for possession of a firearm, where only one firearm is observed by witnesses prior to the contact, is illegal; any reasonable suspicion having dissipated upon the recovery of the one firearm. 

On July 5, 2023, a citizen reported to the Sacramento County Sheriff’s Office that a group of men were in the apparent process of creating a music video in the parking lot of an apartment in Rancho Cordova.  One of the men was observed to be holding a handgun.  The caller described the man holding the gun as thin, approximately 16 to 17 years old, and wearing “all black clothing.” 

Deputies and detectives from the Sheriff’s gang suppression unit responded to the call, arriving at 8:12 p.m. That particular location was known by the gang detectives to be within territory claimed by the East Side Pirus criminal street gang.  One of the six men found to be at that location was defendant, who was a heavyset 300-pound man of approximately 30 years of age. Another subject, referred to as “D.M,” and who was a juvenile, was also there.  Defendant was wearing all black. D.M. was wearing a black jacket and blue jeans. Upon the officers’ arrival, the group of six individuals was instructed to put their hands in the air.  Everyone complied except for D.M. who immediately took off running. He was caught within two minutes and, upon being taken into custody, was found to be in possession of a pistol.  Another gun was later found in D.M.’s car. 

After arresting D.M., the other five men, including defendant, were all detained at the scene. By 8:22 p.m., an active investigation, involving “a lot of tasks and duties,” was underway. This included records checks for all members of the group, including checks of the “known persons file database,” which revealed that all were members of the East Side Pirus. Employees of the apartment complex from where the original call came were also interviewed.

During all this, defendant was patted down for weapons (none was found), handcuffed, and detained in the front seat of a patrol car.  When interviewed, it was learned that he had driven to the scene in a car that was parked about 20 feet away.  He twice declined the detectives’ request for permission to search the car.  This discussion with defendant ate up about 5 to 10 minutes.  Finally, believing that they had probable cause to search his car, it was searched, resulting in the recovery of a loaded magazine.  As a result, defendant’s person was "pats searched" more thoroughly.  This time a Glock handgun was found and he was arrested.  At this point, defendant had been detained for some 41 minutes. 

The Sacramento County District Attorney filed a felony complaint charging defendant with numerous gun- and gang-related offenses, along with a prior strike.  Upon the trial court’s denial of defendant’s motion to suppress, he filed for a pre-trial writ of mandate. 

The Third District Court of Appeal reversed.  Two issues were discussed in this appeal, both of which resulted in rulings in the defendant’s favor.   

(1)  Probable Cause to Search Defendant’s Car:  At defendant’s motion to suppress, one of the gang detectives testified that he believed he had probable cause to search defendant’s car because as a member of the gang suppression unit for several months, he had been involved in numerous investigations related to gang activity, the “vast majority” of which involved a gangster’s possession of firearms. Secondly, the detective noted defendant’s status as a validated member of the East Side Pirus, and that the location of the apartment complex where his detention took place was within gang territory. Third, the detective testified that he had personally watched over 100 gangster-produced music videos, such as these gangsters were reported to have been making in this case, and that in his experience, such videos—made for the purpose of posing “as a threat to rival gangs or to show the power and dominance of that gang”—commonly involve firearms or firearm-related accessories such as holsters, magazines, or ammunition.  Fourth, the detective was of the opinion that said gang members frequently hide firearms in their cars. Finally, the detective testified that he was familiar with defendant's criminal history.

Based upon all this, the People argued that the detectives had probable cause to search defendant’s car, and that as such, the so-called “automobile exception” allowed for such a search without a warrant.  The automobile exception does in fact allow for warrantless searches of a car, but only upon a finding that the searching officers had probable cause; an issue on which it is the People’s burden to prove.  The relevant law is well settled:  The automobile exception, when it does apply, applies as well to unoccupied parked cars, as was the situation in this case.  However, probable cause exists only when, under the totality of the circumstances, “there is a fair probability that contraband or?evidence of a crime will be found in a particular place.” (Illinois v. Gates?(1983) 462 U.S. 213, 238.)  In this case, the People failed to meet its burden to prove there was probable cause to believe defendant’s car contained any sizable evidence.  Noting that the evidence necessary to prove probable cause to arrest is sometimes different than what is needed to prove probable cause to search (See United States v. Rodgers?(9th Cir. 2011) 656 F.3rd 1023, 1028–1029. and?United States v. Rojas?(5th Cir. 1982) 671 F.2nd 159, 165.), the Court held here that just because there might have been probable cause to believe defendant possessed a firearm does not mean that there was also probable cause to believe he had one in his vehicle. 

In this case, defendant’s car was some 20 feet away, with no evidence that any of his fellow gangsters (let alone defendant himself) had approached the car or placed anything in it.  The fact that defendant admitted driving to the apartment complex in the car, the detective’s knowledge that gang members frequently hide firearms in cars, and the opinion that defendant “could have had time to hide a firearm in his car before detectives?arrived on scene,” was insufficient, per the Court, to establish probable cause to believe that defendant’s car contained a firearm. Also, “(t)hat (defendant) was standing within 20 feet of a parked car in a parking lot does not, without more, raise an inference that evidence of crime or contraband might be found inside the car.”  The Court further noted that while the detectives’ training and experience “may be considered in determining probable cause, they are no substitute for objective facts supporting an inference that evidence of crime may be found in a particular place.”  In total, the Court held that “viewing the record independently, and considering the totality of the circumstances,” what was known to the detectives at the time was insufficient to establish sufficient probable cause to believe defendant’s car contained evidence of a crime.  As such, the automobile exception did not apply. The search of defendant’s car was therefore illegal.  The gun having been found on defendant’s person, being the product of the illegal search of his car, should have been suppressed.   

(2) Prolonged Detention:  Defendant argued that the detectives detained him for an unreasonable length of time, converting what started as a lawful detention into an unlawfully prolonged detention, and thus a “de facto arrest.” The People countered with the argument that considering the fact that the deputies and detectives were “faced with an active investigation involving numerous suspects and witnesses, and detained (defendant) no longer than necessary to perform their ‘many necessary tasks,’” that the 41 minutes it took to develop probable cause was not unreasonable. 

Once again, the Court sided with defendant. Again, the basic rules are clear even if not easily applied:  A police officer “can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity?‘may be afoot,’ even if the officer lacks probable cause.” (United States v. Sokolow (1980) 490 U.S. 1, 7.) However: “An investigative detention must be temporary and last no longer than necessary to effectuate its purpose.” (Florida v. Royer?(1983) 460 U.S. 491, 500.)  An investigative detention “exceeds constitutional bounds when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible.” (People v. Russell?(2000) 81 Cal.App.4th 96, 101.) 

Recognizing that there are no “hard-and-fast rules” that help distinguish between an investigative detention and a “de facto arrest” (commonly referred to as an “unlawfully prolonged detention”), the Court noted that “the facts of each case, with a focus on ‘whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicious quickly, using the least intrusive means reasonably available under the circumstances,’” must be considered.  (People v. Celis?(2004) 33 Cal.4th 667, 675.)  The prosecution bears the burden of proving that the detention was reasonable in scope and duration.?(People v. Pearl (2009) 172 Cal.App.4th 1280, 1288.)  Defendant conceded that at least initially, he was legally detained.  However, once D.M., who generally matched the description of the person observed by the apartment complex witnesses (thin, 16 to 17 years old, and wearing black, even though he was also wearing blue jeans), was arrested and found with a gun, defendant argued that the detectives no longer had any reason to suspect that he—who, although wearing all black, was much older (around 30 years old), weighed around 300 pounds, and thus did not match the witnesses’ description—might also be in possession of a gun.  Any continued detention of defendant after D.M.’s arrest, therefore, violated the Fourth Amendment. 

The Court agreed.  By 8:22, ten minutes into the contact, D.M. had been arrested, found in possession of a firearm, with a second firearm found in his car.  At that point, per the Court, there was no longer any reasonable suspicion supporting the detectives’ belief that defendant also might have a firearm; a fact confirmed by the patdown search of defendant’s person with negative results (even though it was later determined that the patdown had missed a weapon defendant was in fact carrying).  The Court ruled that at this point in time, the detectives had “completed their mission and the original justification for the investigative detention ‘completely dissipated.’”  Any further detention was not supported by a reasonable suspicion to believe that defendant (or any of the other four individuals with him) were engaged in criminal activity.  As such, detaining him beyond this point constituted a “de facto arrest,” violating the Fourth Amendment.  As such, even if the search of defendant’s car had been supported by probable cause (which it was not, per the above), it was conducted during an unlawful detention.  The magazine found in the car, and the gun found during the subsequent search of his person, should have been suppressed. 

It’s hard to argue with the Court’s conclusion concerning the search of defendant’s car.  If a gang detective’s belief that all gang members carry firearms in their car were to constitute the necessary probable cause to legally justify the search of any car owned or operated by a gang member, then the police could search any gang member’s car simply because he is a gangster.  The courts will never allow so broad a rule.  There has to be something in addition to the fact that the person belongs to a gang to justify such a search.

Here, the Court ruled that just because gang members commonly carry guns, guns are also commonly used when gangsters are producing music videos, and the fact that someone else in the group had possession of a gun, was not enough. I don’t disagree. It may create a “reasonable suspicion” (see below), but certainly not probable cause to believe others in the group may also have guns in their cars.  However, although it is a moot issue, the car search being illegal, I don’t agree with the Court’s conclusion that defendant’s continued detention in this case was illegal.  Having arrested one member of the group with a firearm, and knowing that the group is producing a music video during which firearms are commonly used (and in fact one is observed by witnesses), the detectives’ continued detention of the others for the purpose of investigating the rest of the group’s possible possession of their own firearms is not, in my never-to-be-so-humble opinion, unreasonable. That’s more than a “hunch.”  That’s based upon the experienced detectives’ training and experience. 

While you can’t just assume a gangster is carrying a gun in his car simply because he is a gangster (see above), you should be able to detain the gangsters further in order to investigate the possibility that one or more of the other gangsters (other than D.M.) also has a gun in his car when caught making gangster videos, at which it is known guns are commonly used, and in fact one of the group has already been found in possession of a gun.  It is ludicrous to believe that just because D.M. was found to be in possession of a gun that the detectives were just going to cut everyone else lose without further investigation.  I don’t think a detective has to assume that the one gun already recovered is the only gun at the scene, as the Court seems to infer here.  But I don’t have another case I can cite you to for this argument.  As such, we’re stuck with the rule as provided here until some other court rules to the contrary.   

• The Fourth Amendment and Forced Biometric Cellphone Searches
• Parolees and Cellphone Searches
• The Fifth Amendment and Forced Biometric Cellphone Searches

The forced use of a suspect’s thumbprint to open his cellphone, when the suspect is subject to a parole Fourth waiver, is lawful.  Forcing a suspect to open his cellphone via the use of his thumbprint does not violate that suspect’s Fifth Amendment self-incrimination privilege. Where a search warrant obtained for a suspect’s residence shows probable cause justifying the search even after redacting information obtained during an illegal security sweep of the residence, whether or not the security sweep was legal is irrelevant.

Defendant Jeremy Travis Payne was sentenced to three years in prison after having been convicted of assault upon a peace officer (P.C. § 245(c)), stemming from an incident that occurred in November, 2018.  Released on parole on September 23, 2020, defendant signed the standard “Notice and Conditions of Parole” document which included the following general search condition:  “You, your residence, and any property under your control are subject to search or seizure by a probation officer, an agent or officer of the California Department of Corrections and Rehabilitation, or any other peace officer, at any time of the?day or night, with or without a search warrant, with or without cause.”  Attached to that was a three-page “Special Conditions of Parol” document that included the following concerning electronic devices: “You shall surrender any digital/electronic device and provide a pass key/code to unlock the device to any law enforcement officer for inspection other than what is visible on the display screen. This includes any digital/electronic device in your vicinity. Failure to comply can result in your arrest pending further investigation and/or confiscation of any device pending investigation.”

On November 3, 2021, California Highway Patrol Officers Coddington and Garcia—assigned to the Coachella Valley Crime Gang Taskforce—observed defendant driving a gold Nissan in the Desert Hot Springs area with unlawfully tinted front windows; a violation of V.C. § 26708.  Upon making a traffic stop, an extremely nervous “sweating profusely,” “stammering” defendant informed the officers that he was on parole.  Upon confirming defendant’s parole status via the police radio, defendant was searched pursuant to his parole conditions, resulting in the recovery of  $1,270 in cash and a key ring with several keys, including a key to a BMW. Upon retrieving defendant’s cellphone from the car, Officer Coddington asked defendant for the password.  Defendant claimed at that point that the cellphone was not his, contrary to earlier assertions that it was.  So Officer Coddington grabbed defendant’s hand and forced him to press his thumb to the screen, opening the phone via a built-in biometric unlocking feature.  Upon doing so, and checking the phone’s settings, it was confirmed that it was indeed defendant’s cellphone.  So the Officer searched the contents of the phone, finding some videos depicting a large amount of U.S. currency, several bags of blue pills (suspected to be fentanyl), and a gold money counting machine.  Defendant was seen in one of the videos referring to the room in which the video was made as his “office.”  Another video in defendant’s cellphone depicted a residence with a gray-brick wall around the front.  In that same video, defendant could be seen saying; “life is good in Palm Desert” and “I got the Beamer out front,” in apparent reference to a parked BMW vehicle shown in the video. 

Checking the maps application on defendant’s cellphone, Officer Coddington found a pin dropped to a parked vehicle on a street called El Cortez Way in Palm Desert; about 25 miles from their current location.  Despite defendant’s assertions that he did not live there, the officers drove him to the residence at that location.  Upon finding a silver BMW parked in front of the residence, it was determined that it was registered to defendant. Also, the key recovered earlier from his person opened the BMW. Another key on the same keyring unlocked the door to the residence. 

The officers entered the home and conducted what they referred to as a “security sweep” to “make sure there was no one inside the residence who could possibly come out of the residence and?harm [the officers].” During sweep, the officers observed in plain sight several bags of blue pills suspected to be fentanyl and a money-counting machine?consistent with what they had earlier observed in the first video on defendant’s cellphone  A search warrant was subsequently obtained for the residence listing in its probable cause statement the information the officers had obtained from defendant’s cellphone, as described above, as well as observations made during the sweep of the home. 

Upon execution of the warrant, documents were recovered showing defendant as the resident.  Also recovered was a “white powdery substance” throughout the home and a total of 104.3 grams of blue pills marked “M/30,” later confirmed to be fentanyl, fluorofentanyl, and cocaine. In addition to the drugs, officers recovered a total of $13,992 in cash, a digital scale, the gold money-counting machine, and six cellphones. Defendant was formally arrested following this search.  Charged with a whole host of drug-related charges in federal court, defendant’s motion to suppress was denied by the district (trial) court.  Upon being found guilty (the Court did not specify whether that was by plea, or a jury verdict), defendant was sentenced to 12 years in prison. 

Defendant appealed. 

The Ninth Circuit Court of Appeals affirmed.  On appeal, defendant raised a number of issues:  

(1) The Search of Defendant’s Cellphone:  The primary issue on appeal was the legality of the search of defendant’s cellphone, and the CHP officers’ forced use of defendant’s thumbprint to open it. Upon defendant’s release from prison, he was required to agree to suspicionless searches of his person, his residence, and any property under his control, such searches being conducted by persons which included “any . . . peace officer.”  Such a search has been held to be constitution, justified by the fact that “parolees, who enjoy only ‘conditional freedom,’ have a significantly diminished expectation of privacy, while the government has a strong interest in assessing parolees’ rehabilitation and reentry while simultaneously protecting the public.”?(People v. Reyes (1998) 19 Cal.4th 743; People v. Bryant (2021) 11 Cal.5th 976, 281; Samson v. California (2006) 547 U.S. 843, 856-857.)  Defendant was also required to agree to certain “Special Conditions of Parole,” including the search of  “any digital/electronic device and (to) provide a pass key/code to unlock the device to any law enforcement officer for inspection.”  Despite this, defendant argued on appeal, “(1) that the officers on scene during the traffic stop used ‘unreasonable means’ to unlock his phone considering the language of his special search condition;?and (2) that the search was arbitrary, capricious, or harassing.”  The Court rejected both arguments. There are two basic requirements for a parole search to be lawful:  First, there must have probable cause to believe that the individual to be searched is on active parole, and an applicable parole condition authorizes the search or seizure at issue.  Secondly,?the search cannot be “arbitrary, capricious, or harassing.”  Here, defendant admitted to the officers that he was on parole. Also, the officers took the time to verify this fact via their radio. This certainly established that the officers knew defendant was on searchable parole. Relative to the issue of whether the search was “arbitrary, capricious, or harassing,” defendant pointed out that in order to get into his cellphone, Officer Coddington had grabbed his hand and forced him to press his thumb to the screen, opening the phone via a built-in biometric unlocking feature.  Noting that the special search condition?did not?require defendant to provide a biometric identifier (i.e., a thumbprint) to unlock any electronic devices, and did?include an express enforcement provision, defendant submitted that the officer should have chosen the more reasonable alternative of simply arresting him pending further investigation, as outlined in the special search condition. The Court noted that this was not a totally frivolous argument. However, the Court ultimately rejected defendant’s argument on this issue, noting that it ignores the more general, statutorily mandated search condition included in the “Notice of Conditions of Parole,” i.e., that “any property under (his) control (was) subject to search or seizure.”  Secondly, defendant’s argument ignores “the ‘totality of the circumstances’ and ‘reasonableness’ requirements that form the foundation of our?Fourth Amendment?jurisprudence, including in the parolee search context.”  The Ninth Circuit has held before that the warrantless and suspicionless search of a parolee’s cellphone, pursuant to the parolee’s conditions of release, is reasonable.  (United States v. Johnson (9th Cir. 2017) 875 F.3rd 1265, 1275.)  Under the general search condition of defendant’s parole, the Court held that he did not have an “expectation of privacy that society would recognize as legitimate” in the contents of his cellphone. The special search conditions did not dilute this wavier.  Officer Coddington’s use of means not specifically contemplated by defendant’s special search condition to access a device over which he (the defendant) had no significant privacy interest does not appear to have been unreasonable. Specifically, the Court determined that the act of forcing defendant to use biometric means to open his cellphone (by forcing him to apply his thumbprint to the phone) did not, by itself, make the subsequent search “arbitrary, capricious, or harassing” in any way, and there is no contrary evidence to support defendant’s assertions to the contrary.   

(2) The Fifth Amendment Self-Incrimination Privilege and the Compelled Unlocking of a Cellphone via Biometric Means:  Defendant also argued on appeal that forcing him to use his thumbprint to open his phone violated his Fifth Amendment right against self-incrimination.  The?Fifth Amendment?provides that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself.”  While subject to some debate, there’s authority for the argument that we must consider a “three-prong analysis” when deciding whether the Government has violated a defendant’s Fifth Amendment self-incrimination rights.  In order to prove that the Government has violated a person’s self-incrimination rights, it must be shown that the “communication” at issue was (1) compelled; (2) incriminating; and (3) testimonial.?(See?Hiibel v. Sixth Judicial Dist. Ct. of Nev. (2004) 542 U.S. 177, 189.)  The Government here “all but concedes” that has satisfied the first two prongs; i.e., that by forcing a defendant to open his cellphone with his thumbprint, his will was “overborn,” compelling him to incriminate himself. As for the “incriminating” element, it has been held that “any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used,” makes it incriminating. (Kastigar v. United States (1972) 406 U.S. 441, 445.) The contested issue in this case was whether the compelled use of defendant’s thumbprint to unlock his cellphone was “testimonial;” an issue yet to be decided by either the U.S. Supreme Court or any other federal circuit courts. In a very esoteric discussion of this issue, the Court here noted that the term “testimonial” has been defined before, albeit in other contexts. “Testimonial communications are those that, ‘explicitly or implicitly, relate a factual assertion or disclose information.’” (Doe v. United States (1988) 487 U.S. 201, 210.) There being no “explicit” communications involved in this case, the issue is whether the forced use of defendant’s thumb “implicitly” related certain facts to officers such that he can avail himself of the privilege against self-incrimination.? As noted by the Court, this argument implicates two lines of Supreme Court precedent; i.e., the “physical trait cases” and the “act of production doctrine.”  (I warned you that this was going to be very “esoteric.”)  The “physical trait cases” involve situations where physical acts are involved, such as standing in a live lineup, or wearing a particular piece of clothing in such a lineup.  Also included are cases where the suspect is required to provide a handwriting or voice exemplar, submit to fingerprinting upon being booked, or a blood draw.  Because none of these compelled acts are “testimonial,” the Fifth Amendment self-incrimination privilege does not apply.  Defendant argued, however, that under the “act of production doctrine,” a purely physical act may nonetheless be testimonial because of what it communicates wholly aside from the contents of the thing produced.  Lower appellate court cases from various jurisdictions are inconsistent on this issue, agreeing with defendant in some cases and disagreeing in others.  After a long and (again) esoteric discussion of this split of authority, the Court here held ultimately determined that being forced to provide a thumbprint for biometric purposes falls into the non-testimonial category in that defendant was never compelled to acknowledge the existence of any incriminating information. As such, defendant’s Fifth Amendment privilege was not violated by forcing him to open his cellphone via the use of his thumbprint.   

(3)  Legality of the “Security Sweep” of Defendant’s Residence, and its Effect on the Subsequently Obtained Search Warrant:  Defendant challenged on appeal the legality of the “security sweep” (often referred to as a “protective sweep”) of his residence prior to the obtaining of the search warrant.  The Court ultimately ruled that the search warrant later obtained had sufficient probable cause to justify the issuance of the warrant even after redacting the observations the officers made during the security sweep.  Specifically, the Court held that the information obtained from defendant’s phone “likely would have been sufficient for probable cause even without the information garnered during the illegal protective sweep.” Thus, it’s irrelevant whether or not the pre-warrant security sweep of defendant’s home was legal.  The Court therefore didn’t see the need to decide the other issues defendant raised; i.e., whether defendant’s parole status allowed for the security sweep (which it obviously did) and whether the “good faith” doctrine applied (a questionable assumption).   

The important issue, in this case, obviously, is the legality of forcing a suspect to open his cellphone via the use of biometrics, such as a thumbprint or his facial features.  This is a case of first impression by the Ninth Circuit.  California’s Sixth District Court of Appeal, in People v. Ramirez (Dec. 22, 2023) 98 Cal.App.5th 175, ruled similarly, at least as to the Fourth Amendment issue (although Ramirez involved the use of a search warrant authorizing the use of biometrics, and not a Fourth wavier.), but not discussing the Fifth Amendment, self-incrimination issue.  (See California Legal Update, Vol. 29, #5; May 1, 2024) These two biometrics cases are just the beginning of what we can expect is going to develop into a whole new body of law.  So get ready for a whole bunch of new cases on this issue in the near future.  Remember, however, that the use of biometrics (finger or facial recognition) on electronic devices is in fact a search, necessitating a warrant (as in Ramirez) or a parole or probationary Fourth waiver (as in this new case).  The Fourth Amendment does not become irrelevant merely because biometrics is involved.