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...
