Fifth Amendment and the Act of Product Doctrine
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const., Amend. V. The privilege against self-incrimination extends not only “to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . [an individual] for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486 (1951). To assert the privilege against self-incrimination, a witness must show that information is: (1) compelled; (2) incriminating; and (3) testimonial. Fisher v. United States, 425 U.S. 391 (1976). A statement is considered “testimonial” when an accused’s “communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 220 (1988). The government may not compel a witness “to use the contents of his own mind” to communicate something factual because doing so is equivalent to testimony and is barred by the Fifth Amendment. Id.
Certain communications or acts are not considered testimonial even when incriminating. For example, “a suspect may be compelled to furnish a blood sample; to provide a handwriting exemplar, or a voice exemplar; to stand in a lineup; and to wear particular clothing.” Id.
The act-of-production doctrine recognizes that although “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence,” it does apply “when the accused is compelled to make a testimonial communication that is incriminating.” Fisher v. United States, 425 U.S. 391, 408 (1976). The Supreme Court has held that the “act of producing evidence in response to a subpoena . . . has communicative aspects of its own, wholly aside from the contents of the papers produced.” Id. at 410; see also Doe, 465 U.S. at 613–14; see also United States v. Hubbell, 530 U.S. 27, 36–37 (2000) (discussing the act-of-production doctrine). The Supreme Court has observed that the “more difficult issues are whether the tacit averments of the [individual] are both ‘testimonial’ and ‘incriminating’ for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases. . . .” Fisher, 425 U.S. at 410. Compelled disclosure of biometric data is one such “difficult” issue that focuses heavily on the act-of-production doctrine.
The Conflict among the Ninth and D.C. Circuits
Last year in United States v. Payne, 99 F. 4th 495 (9th Cir. 2024), the defendant argued that the officers violated his Fifth Amendment right against self-incrimination when they compelled him to unlock his phone with his fingerprint. United States v. Payne, 99 F. 4th 495, 507 (9th Cir. 2024). During a traffic stop, Payne was arrested and compelled to unlock his phone for officers. Id. at 499-500. During legal proceedings, the officers conceded that Payne satisfied the first two prongs for Fifth Amendment protection, that the use of his fingerprint was compelled and incriminating, but they disagreed that it was testimonial. Id. at 507. The Ninth Circuit explained that a testimonial communication requires some factual assertion or disclosure of information to trigger the privilege, but here Payne said nothing after his fingerprint was used to unlock his phone. Id. at 511 (“Payne was never compelled to acknowledge the existence of any incriminating information.”). Thus, the Ninth Circuit found that the use of Payne’s fingerprint required no cognitive exertion and was more like compelled physical acts such as submitting to fingerprinting or having blood drawn—all the types of physical-trait cases in which courts have held certain physical acts as non-testimonial, unafforded Fifth Amendment Protection. Id. at 511-13. Accordingly, the Ninth Circuit affirmed the district court’s ruling and denied Payne’s motion to suppress information obtained from his phone at the time of his arrest. Id. at 514.
Several district courts reached the same conclusion as Payne. Namely, that an officer compelling an arrestee to unlock their phone with biometrics is non-testimonial, although compelled and despite providing access to incriminating information. See Matter of White Google Pixel 3 XL Cellphone in a Black Incipio Case, 398 F. Supp. 3d 785, 793-94 (D. Idaho 2019) (finding that forcing arrestee to unlock phone with fingerprint was not testimonial for Fifth Amendment purposes); Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d 523, 539 (D.D.C. 2018) (same); Matter of Search Warrant Application for cellular telephone in United States v. Barrera, 415 F. Supp. 3d 832, 842 (N.D. Ill. 2019) (concluding “that any implicit inference that can be drawn from a biometric unlock procedure is not of testimonial significance” and thus not violative of the Fifth Amendment); Ballard v. United States, No. 1:21-CR-00207-DCN, 2023 WL 8653808, at *3 (D. Idaho Dec. 14, 2023), certificate of appealability denied, No. 24-71, 2024 WL 5293718 (9th Cir. Sept. 12, 2024) (“[T]he compelled use of a fingerprint does not violate the Fifth Amendment privilege against self-incrimination.”); United States v. Eldarir, 681 F. Supp. 3d 43, 52 (E.D.N.Y. 2023) (“[T]he Court cannot conclude that the compelled use of biometrics to unlock a phone is a testimonial act, thereby implicating the Fifth Amendment. Accordingly, suppression is not warranted on Fifth Amendment grounds.”); Matter of Search Warrant Application for [redacted text], 279 F. Supp. 3d 800, 806 (N.D. Ill. 2017) (“The same principle applies here: a person generally cannot be compelled to disclose the passcode (like the safe’s combination) but can be compelled to provide the fingerprint (like the key to the safe).”).
The issue resurfaced again this past January in United States v. Brown, 125 F.4th 1186 (D.C. Cir. 2025), where the D.C. Circuit reached an opposite conclusion. Schwartz, a co-defendant with defendants Brown and Maly, argued that FBI officers violated his Fifth Amendment rights when the arresting agent found a black phone in his bedroom and compelled Schwartz to unlock it via his fingerprint. United States v. Brown, 125 F.4th 1186, 1199–1200 (D.C. Cir. 2025). As in Payne, Schwartz moved to suppress the evidence obtained from his phone and all the parties agreed that the unlocking of the phone via fingerprint was compelled and incriminating, but the parties disagreed whether the act of unlocking the phone itself was testimonial. Id. at 1200-01. The D.C. Circuit held that unlocking a phone with biometrics was distinctively different than submitting to a blood draw or handwriting test. Id. at 1202-03. The court interestingly highlights a commonsense point—most people who use biometrics to unlock their phone usually set only one or two of their ten possible fingerprints as “passwords.” Id. at 1202 (“[T]he print of this specific finger is the password to this phone.”). The court noted that among the physical trait cases, which are context dependent, some physical responses like the heart beating faster or sweating during a compelled lie detector test are testimonial. Id. at 1202. In reviewing the denial of Schwartz’s motion to suppress, the court reasoned that compelling Schwartz to open his phone with his fingerprint reflected his thoughts and knowledge on: “how to open the phone,” “[his] control over access to this phone,” and “the print of this specific finger is the password to this phone.” Id. at 1202-03. The court thus found that Schwartz’s Fifth Amendment rights were violated. Id. at 1201 (“The district court erred in denying Schwartz’s suppression motion because the compelled opening of the cellphone was testimonial under the Fifth Amendment.”).
Like the Ninth Circuit, the D.C. Circuit also reviewed act-of-production cases, but the courts diverged on whether using a fingerprint to unlock a phone reflected extensive cognitive thought. The D.C. Circuit reasoned that when the FBI agent compelled Schwartz to unlock the phone with his fingerprint, Schwartz demonstrated not only his ownership and control over the phone—but also his ownership of the data accessible within it. Id. at 1203. The Ninth Circuit saw no cognitive exertion in that very same compelled physical act. Payne, 99 F.4th at 511.
Future Forecast
Several district courts reached the same holding as the D.C. Circuit, which when juxtaposed against those that have agreed with Payne, reflects a dramatically unsettled area of law. See United States v. Wright, 431 F. Supp. 3d 1175, 1187–88 (D. Nev. 2020) (holding the compelled biometric unlocking of phones to be testimonial and violative of the Fifth Amendment); In re Residence in Oakland, Cal., 354 F. Supp. 3d 1010 (N.D. Cal. 2019) (“requiring someone to affix their finger or thumb to a digital device is fundamentally different than requiring a suspect to submit to fingerprinting” and “is an abuse of power and is unconstitutional”); In re Search Warrant No. 5165, 470 F. Supp. 3d 715, 734 (E.D. Ky. 2020) (striking request to compel biometrics alongside a search warrant and agreeing with Oakland case that “biometric features serve the same purpose of a passcode, which is to secure the owner’s content, pragmatically rendering them functionally equivalent,” thus is testimonial); In re Application for a Search Warrant, 236 F. Supp. 3d 1066, 1073-74 (N.D. Ill. 2017) (same as to forced fingerprint device unlocking only); United States v. Warrant, No. 19-MJ-71283-VKD-1, 2019 WL 4047615, at *3 (N.D. Cal. Aug. 26, 2019)(“[T]his Court disagrees with those courts that have concluded that compelling application of a biometric feature is no different than compelling the provision of non-testimonial physical evidence”).
Several years earlier, in In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, the accused was served with a subpoena duces tecum requiring him to produce the unencrypted contents located on the hard drives of his laptop computer and five external hard drives. 670 F.3d 1335, 1337 (11th Cir. 2012). In responding to the show-cause order, Doe informed the court that he invoked his Fifth Amendment privilege against self-incrimination and refused to comply with the subpoena before the grand jury. Id. at 1338. The government, in turn, sought an order of immunity limited to “the use [of Doe’s] act of production of the unencrypted contents” of the hard drives. Id. That is, Doe’s immunity would not extend to the government’s derivative use of contents of the drives as evidence against him in a criminal prosecution. Id. The court accepted the U.S.’s position on the scope of the immunity to give Doe and granted the requested order. Id. The order “convey[ed] immunity for the act of production of the unencrypted drives, but [did] not convey immunity regarding the United States’ [derivative] use” of the decrypted contents of the drives. Id. Doe persisted and the court found him in civil contempt. Id. The Eleventh Circuit reversed because Doe’s act of production would have testimonial aspects to it and the government’s offer of act-of-production immunity clearly could not provide the requisite protection because it would allow the government to use evidence derived from the immunized testimony. Doe could not be compelled to decrypt the drives. Id. at 1346, 48-49.
The issue may be less complicated with facial or fingerprint recognition, but the Eleventh Circuit decision provides guidance for when a device can only be accessed if the accused is compelled to disclose a particular pattern or personal identification number (PIN). Such scenarios should accord greater testimonial weight, because the government is compelling what is contained in the accused’s mind, akin to being compelled to provide the combination to a safe with incriminating information in it. See Hubbell, 530 U.S. at 43 (indicating that requiring production of a combination to a wall safe would be testimonial); see also United States v. Green, 272 F.3d 748, 753 (5th Cir. 2001) (reversing conviction and holding that agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives elicited testimonial acts in violation of the defendant’s Fifth Amendment rights when they compelled him to enter a combination to open his briefcase’s lock while in custody); United States v. Cowette, No. 1:19-CR-00026-LEW, 2024 WL 278211, at *2 (D. Me. Jan. 25, 2024) (granting motion to suppress and holding that “asking [defendant] for the safe combinations” violated the Fifth Amendment). But, what if the accused is compelled to provide a statement to unlock what only may be accessed through voice recognition? The Supreme Court has held that voice exemplars do not violate the Fifth Amendment since they are used “solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said.” United States v. Dionisio, 410 U.S. 1, 6 (1973); see also Gilbert v. California, 388 U.S. 263 (1967) (allowing handwriting exemplar and finding no Fifth Amendment violation); United States v. Wade, 388 U.S. 218 (1967) (permitting voice exemplar in the context of lineup and finding no Fifth Amendment violation). However, if a voice exemplar is compelled as entry for access to a device, akin to a password, it is likely that the reasoning in Brown would apply and the compulsion would seem quintessentially and unavoidably testimonial under those circumstances. Brown, 125 F.4th at 1202.
For the past five years, federal district courts have wrestled with the implications of federal agents compelling arrestees to unlock their phones using biometrics. The conflicting rulings by the Ninth Circuit and D.C. Circuit brings the issues into greater relief where two circuits reached opposite conclusions on similar facts. It surely will lead to additional splits among other courts on the compelled use of biometrics to obtain data. The Supreme Court will likely have occasion to decide these issues when facts and an exercise of ordered liberty demand it.
