In this tech age, Americans increasingly have much of their lives on their phones, tablets, and computers, but it also seems that each year we collectively lose more of our rights to privacy.
Unfortunately, yet another case in California has eroded our rights where it concerns our devices — in this case the right not to incriminate ourselves with our cell phone data.
At issue is a 9th Circuit Court decision that now allows police officers to forcibly place your thumb on your phone to unlock the device, so they can look through your data to their heart’s content.
One would think this case is clearly a violation of the Fourth and Fifth Amendments, but the often left-wing court in California ruled otherwise.
The Fourth Amendment, of course, maintains that Americans have a right to be secure in their “persons, houses, papers, and effects, against unreasonable searches and seizures” by government authorities.
The amendment states in full: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
As to the Fifth Amendment, it prevents government from forcing a citizen to become “a witness against himself,” meaning you have a right not to incriminate yourself.
That amendment reads as follows: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Should police be allowed to force you to open your phone?
Both of these amendments were created by our founders as a way to put a crimp in the despotic tendency of governments and police to abuse their positions of authority as the English Crown had done for generations by entering people’s homes at will to look for violations or contraband.
The case that came before the 9th Circuit Court concerned a man who was arrested by police and later convicted in court for dealing deadly fentanyl.
In 2021, Jeremy Travis Payne was pulled over by officers of the California Highway Patrol because his windows were tinted too dark in violation of state law. During the stop, Payne admitted he was on parole. He was placed in handcuffs and placed in a squad car while police searched his vehicle. When police asked him if he had a cell phone, he described the phone and explained where it was in the car. Upon finding the device, police demanded he unlock it for them, which he says he refused to do. The officers then physically grabbed him and forcibly placed his thumb over the home button of the device and unlocked the phone.
Officers then found a video Payne had stupidly placed into his camera roll that seemed to show him handling a batch of blue pills, which the officers suspected was illegal fentanyl. They used the location data on the phone, which led them to his home, where they used the suspect’s own house keys they had taken from him to enter and search the place. There they found the illegal drugs, and Payne was arrested.
This is not a good guy, granted. He absolutely was dealing dangerous fentanyl, and he needed to be stopped, for certain. But this ruling sets a dangerous precedent and gives police a harsh new power.
Payne later filed a case to suppress the evidence based on the information found on his phone because he was compelled to place his thumb on the device in violation of his constitutional rights.
Payne lost his case with the court, which said, “Payne was never compelled to acknowledge the existence of any incriminating information. He merely had to provide access to a source of potential information,” Police1 reported.
“The compelled use of Payne’s thumb to unlock his phone (which he had already identified for the officers) required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking,” the court added. “When Officer Coddington used Payne’s thumb to unlock his phone — which he could have accomplished even if Payne had been unconscious — he did not intrude on the contents of Payne’s mind.”
This, though, is a dangerous precedent to set. Officers should absolutely not have conducted their investigation the way they did because these methods will surely lead to the violation of the rights of people who end up being innocent. Further, a person’s data is already something that cannot be compelled without a warrant. Investigators are forced by law to get a warrant for travel info, calling records, banking records, and all the other bits of data that would be found on a phone.
These officers should simply have gotten a warrant and followed the usual legal process to enter his home or get his phone data.
Not only is this a violation of Payne’s constitutional rights — especially in a case where there was no emergency or immediate dangers involved — but using these methods will also result in someone being physically harmed by police as they attempt to compel someone to place their thumb on a device.
Again, this man was not a good guy wrongly accused. He was a drug dealer with a long criminal record. But we all have rights, even those who end up being guilty of a crime. And our laws are meant to protect both the guilty and the innocent. This ruling violates that trust.
