Compelled Use of Finger to Unlock Phone Illegal?

When Alfredo Ramirez was in high school, he began dating a 15-year-old girl, M. M. was one of twelve children in her family. M. became pregnant and gave birth to a daughter when she was just fifteen and she married Mr. Ramirez.

At least three of M.’s younger sisters, Jane Does 2, 3 and 4, would regularly sleep over at the home of Ramirez, M., and their daughter. The sleepovers were Mr. Ramirez’s idea. M.’s brothers would not sleep over at Ramirez’s home. Ramirez also took Jane Does 2, 3 and 4 to various activities, including swimming pools, amusement parks, and a boardwalk.

Mr. Ramirez would regularly awake M.’s younger sisters in the night to touch their breasts and vaginas. This was when Jane Doe 2 was between the ages of 11 and 13, Jane Doe 3 was 11 and Jane Doe 4 was ages seven to nine. When the girls reported Mr. Ramirez’s actions to the Salinas’ Police Department, a detective got an electronic communications search warrant and arrested Mr. Ramirez.

The detective used Mr. Ramirez’s finger to unlock a cell phone seized at Mr. Ramirez’s home, finding dozens of images of young girls on the phone, with many of the images “focused on the buttocks of these young girls.” The warrant also led to the discovery of three videos, one of which showed Mr. Ramirez pulling down the shorts of a young girl and touching her vagina.

At trial for three counts of lewd and lascivious acts upon a child (Penal Code § 288(a)) and three counts of using a minor for sexual acts (Penal Code § 311.4(c)) and one count of possession of matter depicting a minor engaging in sexual conduct (Penal Code § 311(a)), Mr. Ramirez moved to suppress all evidence gained from the use of his finger to unlock his phone, alleging that the compelled use of his finger constituted an unreasonable warrantless search, violating his privilege against compulsory self-incrimination under the Fifth Amendment to the United States Constitution and the California Constitution.

The Monterey County Superior Court trial court denied the motion, finding that the use of Ramirez’s finger was not testimonial in nature under the Fifth Amendment and not an unreasonable search under the Fourth Amendment. The jury then convicted Mr. Ramirez of all counts. The judge sentenced him to 107 years to life in prison.

On appeal, Mr. Ramirez raised nine claims of error to the California Court of Appeal for the Sixth District, but this article will only address his claim that the forced use of his finger to unlock his phone violated his constitutional rights against an unlawful search (of his finger, although there was a subpoena) under the Fourth Amendment and the Fifth Amendment right against self-incrimination by police use of his fingerprint.

The Sixth District affirmed the trial court, finding that “to qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 189. “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself [or herself].” Doe v. United States (1988) 487 U.S. 201, 210, fn. omitted.

“Thus, a suspect may be compelled to furnish a blood sample [citation]; to provide a handwriting exemplar [citation], or a voice exemplar [citation]; to stand in a lineup [citation]; and to wear particular clothing [citation].” Ibid.

The appellate court explained a testimonial act is “written, oral or otherwise, upon which reliance is to be placed as involving [the accused’s] consciousness of the facts and the operations of his [or her] mind in expressing it, the demand made upon him [or her] is not a testimonial one.” Ibid, p. 211.

We present this summary because we have had some clients call us and ask us specifically about this issue. We told them that law enforcement’s use of one’s fingerprint was not testimonial and that it was not an unlawful search (even without a warrant). It is comforting to see that an appellate court echoed our answer in a published decision answering such a question.