When Your Fingers Do the Talking: D.C. Circuit Rules That Compelled Opening of Cellphone With Fingerprint Violates the Fifth Amendment

Given the importance of cellphones to modern life, gaining access to a suspect’s phone is generally a top priority for law enforcement. But once “seized,” a phone’s security measures may present an obstacle for government authorities who then seek to “search” the phone’s contents. While law enforcement can ask for the phone’s owner to provide the password, they (generally) cannot compel the person to do so without running afoul of the Fifth Amendment. However, law enforcement frequently — and with court authorization — unlocks devices by applying the cellphone owner’s fingerprint or holding it up to the person’s face. To justify this approach, the government’s position is that such physical characteristics are not “testimonial” so as to be protected by the Fifth Amendment’s privilege against self-incrimination, just as appearing in a lineup or providing writing samples, voice exemplars, and hair and blood samples are not protected (with some exceptions).

But a recent appellate court decision could substantially narrow law enforcement’s ability to compel a suspect to provide fingerprint access to a cellphone. In January 2025, the D.C. Circuit issued United States v. Brown, 125 F.4th 1186 (D.C. Cir. 2025), in which it held that compelling the defendant to unlock his cellphone violated his Fifth Amendment right against self-incrimination. The D.C. Circuit concluded that law enforcement violated the defendant’s Fifth Amendment right against self-incrimination because his compelled revelation of how to unlock his phone was “testimonial,” and not just a physical act. We explore the Brown decision below, and then provide some takeaways.

Background

Peter Schwartz and his two co-defendants, Jeffrey Brown and Markus Maly, were charged with a series of felony and misdemeanor offenses for their actions during the January 6, 2021 Capitol breach. On February 4, 2021, FBI agents arrested Schwartz at his apartment and executed a search warrant there. During the search, an agent found a cellphone in Schwartz’s bedroom. The agent asked Schwartz for the password and Schwartz offered three options, none of which worked. After unsuccessfully attempting to unlock the phone using the provided passwords, the agent “used Schwartz’s fingerprint to unlock” the device. Id. at 1200. The government later conceded that Schwartz had been “compelled” to use his fingerprint to open the cellphone. While both the district and appellate courts accepted that the unlocking was compelled, the exact circumstances surrounding the compelling are unclear from the record. Still, as the D.C. Circuit put it, “the government admitted that Schwartz’s opening of the cellphone with his thumbprint was involuntary.” According to the D.C. Circuit, “the record reveals that an FBI agent ordered Schwartz to open the cellphone, and Schwartz complied by placing his thumb on the cellphone.” Id. at 1202. Once unlocked, agents photographed information on the phone, including text messages. Law enforcement used those photographs as part of the probable cause showing to obtain a subsequent warrant to conduct a full search of Schwartz’s cellphone.

Schwartz moved to suppress the fruits of both searches of his phone, arguing that the FBI had violated his Fifth Amendment privilege against self-incrimination by forcing him to unlock the phone, as well as his Fourth Amendment rights against unreasonable searches and seizures. The district court denied Schwartz’s motion in its entirety. In particular, the court found that although the FBI had compelled Schwartz to unlock his cellphone and reveal inculpatory contents, his act of unlocking the cellphone with his fingerprint was not a testimonial act, but merely a physical one, and therefore did not implicate his Fifth Amendment rights. At trial, the jury convicted Schwartz of all counts against him, including four counts of felony assaulting, resisting, or impeding law enforcement officers using a dangerous weapon; interfering with a law enforcement officer during a civil disorder; obstruction of an official proceeding; and related charges. The jury similarly convicted Schwartz’s co-defendants of the charges against them (only some of which also were charged against Schwartz).

D.C. Circuit Decision

On appeal, the D.C. Circuit affirmed the convictions of Schwartz’s co-defendants and vacated Schwartz’s obstruction conviction under 18 U.S.C. § 1512(c) in light of recent Supreme Court precedent. With respect to Schwartz’s other convictions, the appeals court held that the district court wrongly denied his Fifth Amendment suppression motion. The D.C. Circuit described how the privilege against self-incrimination protects communications that are “testimonial, incriminating, and compelled.” Brown, 125 F.4th at 1201. There was no dispute that law enforcement compelled Schwartz to open his phone, or that his act of doing so was incriminating, because it linked him to the phone’s inculpatory contents. Id. Consequently, the circuit court determined that Schwartz’s “disclosing to police [his] way of opening the cellphone and his ability to do so was testimonial,” and therefore his Fifth Amendment rights had been violated. Id. As a result, the D.C. Circuit remanded the case for the district court to determine, in the first instance, whether the admission of the cellphone evidence “infected some or all of Schwartz’s offenses of conviction” or was merely harmless error. Id. at 1194.

The D.C. Circuit explained that “compelled biometric unlock of a cellphone arises at the intersection of the Fifth Amendment’s physical-trait and act-of-production precedents.” Id. at 1202. Turning first to the “physical trait” case law, the court distinguished Schwartz’s involuntary unlocking of his cellphone from other uses of a suspect’s physical actions or traits that the Supreme Court has deemed non-testimonial, such as the involuntary furnishing of blood or handwriting samples, submitting to fingerprinting, standing in a police lineup, or wearing certain clothes. In the D.C. Circuit’s view, the key question is whether the physical traits or actions in question “are manifestations of testimonial thoughts in the defendant’s mind” and “require no additional information to communicate an incriminatory message.” Id. at 1203. Unlike blood or handwriting samples, which must be analyzed before they communicate a specific meaning, the court concluded that using a fingerprint to unlock a cellphone was more like the use of a lie-detector test’s physiological readings as evidence of guilt. This was not a case where the agents grabbed the defendant’s finger and pressed it onto the phone. Rather, while the record was less than perfectly clear, the agents ordered Schwartz to open the cellphone, and he complied by using his fingerprint. According to the D.C. Circuit, being ordered to unlock the device was akin to being forced to verbally provide its password or speak the words, “I know how to open the phone,” “I have control over and access to this phone,” and “the print of this specific finger is the password to this phone.” Id. at 1202. In other words, the “compelled opening of a cellphone directly announces the owner’s access to and control over the phone, as well as his mental knowledge of how to unlock the device.” Id. at 1203. Accordingly, the D.C. Circuit held that it must be considered testimonial and protected by the Fifth Amendment.

The D.C. Circuit further explained that the Fifth Amendment’s act-of-production doctrine reinforced the testimonial nature of Schwartz’s actions, drawing from United States v. Hubbell, 530 U.S. 27 (2000). Hubbell held that a defendant’s production of documents in response to a subpoena was testimonial because it “established the existence, authenticity, and custody of the items produced,” and required “extensive use of the contents of [the respondent’s] own mind” and was “tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions.” Id. at 41, 43 (cleaned up). The Brown court held that, like Hubbell, Schwartz’s opening of his cellphone “disclosed his control over the phone, his knowledge of how to access it, and the existence, authenticity, and ownership of documents within it,” and “was tantamount to answering a series of questions about ownership or control over the phone, including how it could be opened and by whom.” Brown, 125 F.4th at 1204.

Interplay With the Ninth Circuit’s Decision in United States v. Payne

In a footnote, the D.C. Circuit addressed an arguable circuit split with the Ninth Circuit’s decision in United States v. Payne, 99 F.4th 495 (9th Cir. 2024). In Payne, the Ninth Circuit held that forcibly grabbing a defendant’s thumb and using it to unlock a phone was not testimonial and did not violate the defendant’s Fifth Amendment rights. Id. at 500, 509-12. The D.C. Circuit concluded that its holding was consistent with Payne for two reasons. First, unlike in Brown, the police in Payne did not instruct the individual to open his phone. Rather, they grabbed the individual’s finger and used it to unlock the phone (so there was no “act” of production by the defendant). Second, the Ninth Circuit cautioned that its opinion “should not be read to extend to all instances where a biometric is used to unlock an electronic device.” Id. at 513 (emphasis in original). Indeed, “the outcome on the testimonial prong may have been different had [the police] required Payne to independently select the finger that he placed on the phone.” Id. The D.C. Circuit highlighted that remark, declaring: “That is this case.” Brown, 125 F.4th at 1204 n.2. Lower courts that have addressed this issue have been divided as to whether biometric features are functionally the same as a passcode and therefore testimonial in nature. Compare In re Search Warrant Application for [Redacted], 279 F. Supp. 3d 800, 804 (N.D. Ill. 2017) (noting that “[t]he government chooses the finger to apply to the sensor, and thus obtains the physical characteristic — all without need for the person to put any thought at all into the seizure.”), with United States v. Wright, 431 F. Supp. 3d 1175, 1187 (D. Nev. 2020) (finding that “a biometric feature is functionally the same as a passcode, and because telling a law enforcement officer your passcode would be testimonial, so too must the compelled use of your biometric feature [facial recognition] to unlock a device.”).

To the extent that forcing a suspect’s hand to unlock a phone might implicate the Fourth Amendment’s protections against unreasonable seizures of a person, the D.C. Circuit declined to reach the Fourth Amendment question. However, it is notable that the government had a search warrant which stated that law enforcement could obtain from Schwartz “the compelled display” of thumbprints or other “physical biometric characteristics” to unlock his phone. Still, regardless of any superficial similarities or distinctions between Brown and Payne, the widespread use of smartphones with biometric locks suggest a potential opening for the Supreme Court to address these issues in the future.

Takeaways

Going forward, Brown may shape how law enforcement seeks to obtain access to cellphones. Just as importantly, Brown could influence the kinds of guardrails that judges reviewing search warrants or suppression motions may impose on the government’s ability to compel a suspect to identify which finger or whose face may open the phone.

According to the D.C. Circuit, the key difference between Brown and Payne was the agent’s instruction to Shwartz to open the phone. Thus, what law enforcement authorities communicate to an individual before seeking to unlock a phone using physical characteristics will be critically important to evaluating Fifth Amendment concerns. By the same token, what an individual communicates to law enforcement before being compelled to unlock their phone, and whether it was communicated before or after the individual receives a Miranda warning, also will be at issue.

Finally, the Fifth Amendment act-of-production doctrine concerns raised in Brown might inspire future litigation concerning compelled device unlocking. Most often, the act-of-production doctrine arises in the context of a subpoena, where the recipient has an opportunity to assert the doctrine, resist the subpoena, and can then litigate the issue in court. By comparison, there is no such opportunity to assert Fifth Amendment protections in the context of a compelled unlocking of a cellphone. While the record was ambiguous as to the exact circumstances surrounding the compelled unlocking of Schwartz’s cellphone, the Fifth Amendment concerns raised by Brown suggest the need for further judicial guidance on whether law enforcement agents must take steps to ensure the voluntariness of a device unlocking. We will continue to monitor developments in this area.

For questions about white collar prosecutions and potential data seizure issues, reach out to the authors or any of their colleagues in Arnold & Porter’s White Collar Defense & Investigations practice group.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.