Fifth Amendment Implications of Search Warrants Applied to Phones and Computers to Bypass Encryption

To bypass encryption, courts have addressed the application of Fifth Amendment to digital privacy where a search warrant allows police have forced a suspect to unlock an iPhone, cellphone, computer, or encrypted external. Likewise, challenges to the compelled production a password under grand jury and civil proceedings has been met with mixed results. The inconsistency of the rulings create the perfect storm for the Supreme Court to address the issue.

Most recently, in January 2025, the United States Court of Appeals for the District of Columbia Circuit issued a landmark ruling in United States v. Brown, 125 F.4th 1186 (D.C. Cir. 2025), holding that compelling a defendant to unlock a cellphone using biometric features violates the digital privacy Fifth Amendment protections against self-incrimination. This decision creates a significant circuit split in some contexts with the Ninth Circuit’s contrary position in the April 24, 2024 decision in United States v. Payne, 99 F.4th 422 (9th Cir. 2024), resulting in divergent constitutional standards that profoundly impact digital privacy rights.

Table of Contents

• The Digital Privacy Fifth Amendment and Device Security

• The Ninth Circuit’s Contrary Position in USA v. Payne

• Understanding the Circuit Split

• District Court Rulings Across the Nation

• Legal Theory: Testimonial vs. Non-Testimonial Evidence

• Practical Implications for Criminal Defense

• Anticipating Supreme Court Resolution

• Conclusion

• Frequently Asked Questions

Digital Privacy and the Fifth Amendment

The digital privacy Fifth Amendment protection against compelled self-incrimination has traditionally required courts to distinguish between testimonial communications (protected) and physical evidence like fingerprints or blood samples (unprotected). As smartphone security evolved from simple passwords to sophisticated biometric systems, courts have struggled to apply these distinctions to modern technology.

The need for additionally security is not due to nefarious reasons or where only the guilty must employ such measures, but due to the extensive amount of information contained on modern mobile phones. As highlighted by the Supreme Court in Riley v. California,  573 U.S. at 394–95, where the Court discussed the privacy concerns created by the vast amount of personal information kept on cell phones. Since the 2014 opinion phones have only evolved to include vital information from Bitcoin and banking apps, to digital driver license , and access to work files for the increasing number of people working from home.

The core digital privacy Fifth Amendment question is whether compelling someone to use biometric features to unlock a device is like providing a physical key (not testimonial) or revealing the contents of one’s mind, such as a memorized password (testimonial). This distinction has profound implications for both law enforcement and digital privacy Fifth Amendment protections.

Darren Chaker , who besides having undergraduate and graduate degrees in Criminal Justice and Forensics, is also a sought after consultant in forensics and counter forensics, with certifications ranging from Certified Forensic Computer Examiner (CFCE), EnCase Certified Examiner (EnCE), and Certified Cyber Forensics Professional (CCFP), looks at two recent opinions issued in 2024 and 2025.

One decision from the First Circuit and another from the Ninth Circuit – each addressing digital privacy and the application of the Fifth Amendment or other rights that may be infringed upon when compelling a suspect to unlock his or her mobile phone. Several additional cases are briefly addressed as well illustrating how different courts view the same issue.

DC Circuit’s Landmark Ruling in USA v. Brown

In United States v. Brown, 125 F.4th 1186 (D.C. Cir. 2025), the D.C. Circuit addressed whether compelling Peter Schwartz to unlock his cellphone with a fingerprint violated his digital privacy Fifth Amendment rights. During a search of one of the defendant’s residences, an FBI agent located a cellphone in Schwartz’s bedroom. The agent asked Schwartz for the password and Schwartz offered three options, none of which were appealing to Schwartz.

After unsuccessfully attempting to unlock the phone using the provided passwords, the agent “used Schwartz’s fingerprint to unlock” the device.  The court concluded that such compulsion was testimonial, explaining 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.

The Court reasoned that being compelled to use a fingerprint to unlock a cellphone directly communicates the defendant’s knowledge and control of the device, thus implicating digital privacy Fifth Amendment protections. Unlike providing physical evidence like blood samples, biometric unlocking instantly communicates specific knowledge about the defendant’s relationship to the device.

The Ninth Circuit’s Contrary Position in USA v. Payne

In contrast, the Ninth Circuit had a different set of facts in United States v. Payne, 99 F.4th 422 (9th Cir. 2024) where the California Highway Patrol detained Jeremy Payne who was on parole. Officers requested he unlock his phone. After Payne refused, he attempted to disclaim the phone. One of the officers forcibly grabbed his thumb and used it to unlock the phone. Once unlocked, an officer then searched the phone, resulting in locating evidence of drug activity and subsequently charged in federal court. The district court denied a motion to suppress resulting in the Ninth Circuit hearing the case.

The Ninth Circuit found the defendant had far less, if any, expectation of privacy due to being on parole. The Court pointed out, Payne agreed to a special condition of parole stated any his person and property were subject to search without probable cause, and “This includes any digital/electronic device in your vicinity.” Id. at 425.

The panel found the language of the 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. The Ninth Circuit cited to the California Supreme Court holding in People v. Bryant, 491 P.3d 1046, 1054 (Cal. 2021), holding that “[A] warrantless search of a parolee’s property or residence . . . is per se reasonable.”

The Ninth Circuit found when it comes to police and digital privacy in this instance, “the compelled use of a biometric to unlock an electronic device was not testimonial because it required no mental process or revelation from the defendant’s mind.” Id. at 429. The Ninth Circuit viewed the biometric feature as a physical key rather than a password that exists only in someone’s mind, thus not implicating digital privacy Fifth Amendment protections in their view.

Understanding the Circuit Split

The contradictory rulings from the D.C. Circuit and Ninth Circuit represent a significant split in how federal courts interpret the digital privacy Fifth Amendment as it applies to modern technology. The D.C. Circuit sees biometric unlocking as inherently testimonial and protected by the digital privacy Fifth Amendment, while the Ninth Circuit treats it as purely physical evidence. As noted in United States v. Crawford, 520 F. Supp. 3d 402 (D.D.C. 2022), “The question of whether a fingerprint unlock constitutes testimonial evidence lies at the intersection of traditional physical evidence and modern technological authentication.”

District Court Rulings Across the Nation

In 2024, Darren Chaker wrote an an article on digital privacy and phone searches, explaining methods to secure a phone from unauthorized viewing,  found Courts across the country have reached differing conclusions on the digital privacy Fifth Amendment and biometric unlocking:

• United States v. Smith, 706 F. Supp. 3d 404, 409 (S.D.N.Y. 2023): “The Court finds that the foregone conclusion doctrine applies, and Smith’s Fifth Amendment rights were not violated.”

• United States v. Wright, 431 F. Supp. 3d 1175 (D. Nev. 2020): Court found police, “violated Defendant’s Fifth Amendment rights when they forcibly unlocked his smartphone—before they got a warrant—by holding it up to his face. Thus, the Court will suppress any evidence obtained from the smartphone.” In addition, the Court found, “[A] biometric feature is functionally the same as a passcode.” Id. at 1187.

• In re Search Warrant No. 5165, 470 F.Supp.3d 715, 729 (E.D. Ky. 2020): Requests for compelled biometrics is permitted under the Fourth and Fifth Amendment.

• United States v. Barrera, 415 F.Supp.3d 832, 838 (N.D. Ill.2019): Biometric unlocking is like providing a physical key, non-testimonial.

• In re Search of a Residence in Oakland, California, 354 F. Supp. 3d 1010 (N.D. Cal. 2019): Request for search warrant for a phone or other encrypted devices compelling the suspect to “press a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition” was denied where the “Court finds that the Government’s request runs afoul of the Fourth and Fifth Amendments.” Id. at 1012.

• Matter of Search Warrant Application, 279 F. Supp. 3d 800 (N.D. Ill. 2017): “The application of the fingerprints to the sensor does not run afoul of the self-incrimination privilege because that act does not qualify as a testimonial communication.” Id. at 835.

• United States v. Apple Mac Pro Computer., 851 F.3d 238, 248 (3d Cir. 2017): Appeals Court affirmed District Court order finding defendant in contempt and ordered he be held in custody until he complies with the Decryption Order. However, maximum confinement for contempt held to be 18 months.

• United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010): Court found the defendant cannot be compelled to provide testimonial communication that is incriminating, including revealing passwords that may lead to incriminating evidence.

Legal Theory: Testimonial vs. Non-Testimonial Evidence

The Supreme Court’s Fisher v. United States, 425 U.S. 391 (1976) “act of production” doctrine distinguishes testimonial communications from physical evidence. The D.C. Circuit applies this doctrine to biometric unlocking, viewing it as an implicit assertion of fact-knowledge, control, and authentication-thus protected by the expectation of digital privacy under the Fifth Amendment.

The Ninth Circuit, however, treats biometrics as physical evidence, similar to a key, requiring no mental communication. As noted in In re Search of a Residence in Oakland, California, “Technology is outpacing the law,” and courts must reconcile these distinctions.

Practical Implications for Criminal Defense Attorneys

Defense attorneys should challenge compelled biometric unlocking in jurisdictions following Brown and pursue Fourth Amendment arguments in jurisdictions aligned with Payne. Clients should be advised that alphanumeric passwords generally receive stronger digital privacy Fifth Amendment protection than biometric features. As recognized in People v. Sneed, 2021 IL 126080 (Ill. 2021), compelled biometric unlocking can constitute testimonial communication and implicate digital privacy Fifth Amendment rights.

Similarly, in People v. Ramirez, 316 Cal. Rptr. 3d 520 (Cal. App. 2023), the California Court of Appeal held that compelling a defendant to provide a fingerprint to unlock a cell phone did not violate the Fifth Amendment privilege against self-incrimination. The Court reasoned that the act of providing a fingerprint, like providing a blood sample or voice exemplar, is not testimonial. The officers, not the defendant, selected which finger to use, and the defendant was not required to use the contents of his mind or communicate any knowledge. (316 Cal. Rptr. 3d 520, 544–545 (Cal. App. 2023))

Anticipating Supreme Court Resolution

The circuit split invites Supreme Court review. The Court will likely consider whether biometric unlocking is more like providing a physical key (non-testimonial) or revealing a combination (testimonial), balancing law enforcement interests and digital privacy Fifth Amendment rights in a digital era. As explained in Matter of Search Warrant Application, 279 F. Supp. 3d 800 (N.D. Ill. 2017), “The fingerprint, like a key, is a physical thing, but unlike a key, it is a physical thing that serves to communicate information from the defendant’s mind.”

Conclusion

Forensics and Privacy Consultant Darren Chaker finds the D.C. Circuit’s ruling in United States v. Brown marks a critical development in digital privacy Fifth Amendment jurisprudence, affirming that compelled biometric unlocking is testimonial and protected. The split with the Ninth Circuit decision in United States v. Payne underscores the challenges courts face in applying constitutional protections to evolving technology.  Until the Supreme Court resolves this issue, defendants’ digital privacy Fifth Amendment rights will vary by jurisdiction, requiring careful legal strategy and client counseling.

One thing is for sure – for those who are at risk of being forced to unlock an iPhone, cellphone, computer, or external drive – the use of a complex password, or ideally a passphrase, while also utilizing weekly or bimonthly wiping utility represent significant counter-forensic measures to prevent access and recovery of data.  By assessing the applicable risk factors will gage the best route to take.

Frequently Asked Questions

Q: Does the digital privacy Fifth Amendment protect me from being forced to provide my phone’s password?
A: Yes. Most courts hold that passwords are testimonial because they reveal the contents of the mind and thus are protected.

Q: Can law enforcement compel me to unlock my phone using my fingerprint?
A: It depends on jurisdiction. The D.C. Circuit says no; the Ninth Circuit says yes with a warrant.

Q: What if I refuse to unlock my phone biometrically?
A: In some jurisdictions, refusal could lead to contempt charges; in others, the digital privacy Fifth Amendment protects your refusal.

Q: Are passwords safer than biometrics?
A: Generally, yes. Passwords are considered testimonial and receive stronger digital privacy Fifth Amendment protection.

Q: Does law enforcement need a warrant to search my phone?
A: Yes. The Fourth Amendment requires a warrant for phone searches, except in limited circumstances.