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Biometric Features are Testimonial in Nature and are Protected Statements Under the Fifth Amendment

Published By Stephen Preziosi

Biometric Features are Testimonial in Nature and are Protected Statements Under the Fifth Amendment

In the Matter of the SEARCH OF A RESIDENCE IN OAKLAND, CALIFORNIA

United States District Court, Northern District of California

Case No. 4-19-70053

Author’s Note: A Federal Court in the Northern District of California has held that the police may not force a suspect to provide biometric features when they want to unlock an electronic device because those biometric features are testimonial and protected by the Fifth Amendment. Biometric features are typically fingerprints, iris scans or facial scans. Although this case comes from a trial court, which I don’t normally blog on, I thought the holding was interesting. Even more interesting will be the appeal to the Ninth Circuit and how it will hold up compared to Schmerber v. California, 384 U.S. 757 (1966) and its progeny. 

Decided on January 10th, 2019

Federal Criminal Appeals in the Ninth Circuit Court of Appeals

Federal Criminal Appeals in California

ISSUE:

Whether the Police may compel the use of biometric features, such as finger prints, facial or iris recognition, to open electronic devices such as cell phones and whether such police activity results in self-incriminating testimonial communication in violation of the Fifth Amendment where the government sought the authority to compel individuals to provide any biometric feature necessary to unlock a digital device.

HOLDING:

The Court held that biometric features, including finger prints, facial or iris recognition, are testimonial in nature and are, therefore, protected by the Fifth Amendment. The use of a suspect’s biometric feature to unlock an electronic device violates the Fifth Amendment right against self-incrimination because biometric features serve the same purpose of a password, and a person cannot be compelled to provide a passcode because it is a testimonial communication and, therefore, protected by the Fifth Amendment.

FACTS OF THE CASE:

In the investigation of two individuals believed to be involved in extortion, the Government submitted an application to the United States District Court for the Northern District of California for a search warrant to seize several items connected to the two suspects; amongst the items were electronic devices such as mobile phones and computers.  The Government sought the authority to compel any individual present at the time of search to utilize biometric features, such as fingerprinting or facial or iris recognition, for the purpose of unlocking the digital devices found in order to permit a search of the contents.

COURT’S ANALYSIS:

The Court held that biometric features, including finger prints, facial or iris recognition, are testimonial in nature and are therefore protected by the Fifth Amendment. The use of a suspect’s biometric feature to unlock an electronic device violates the Fifth Amendment’s right against self-incrimination.  The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.  While the Fifth Amendment does not specifically mention biometric features or digital devices, it is the duty of all Courts to safeguard Constitutional rights despite the advancement of technology.  To assume that citizens anticipate a waiver of their civil rights when using new technology is to leave them at the mercy of the ever-advancing technology. 

In Doe v. United States, 487 U.S. 201, 291 (1988) it was held that a passcode cannot be compelled under the Fifth Amendment because the act of communicating the passcode is testimonial and expressing the contents of one’s mind falls directly within the protection of the Fifth Amendment.  Testimony is not limited to verbal or written communication.  An act that implies assertion of fact can constitute testimonial communication for the purposes of the Fifth Amendment, particularly a witness’s act of producing something could qualify as testimonial if conceding the existence, possession and control, and authenticity of the documents tended to incriminate them.  Certain acts, while incriminating, do not fall within the privilege. For example, furnishing a blood sample, submitting to fingerprinting, providing a handwriting or voice exemplar, or standing in a lineup.  There is a disparity between compulsion of communications or testimony, which violates the Fifth Amendment, and compulsion which makes a suspect or accused the source of real or physical evidence, which does not.   

The Court Makes Two Major Distinctions Between Using Biometric Features to Unlock an Electronic Device and Submitting to Fingerprinting or a DNA Swab 

One: Biometric features serve the same purpose of a passcode; they are used interchangeably, and both serve the purpose of securing the owner’s content.  The Court used the example of restarting a phone or keeping it locked for too long; in those cases, the phone may not accept any biometric feature at all and force the user to enter the passcode.  This is done to add an additional layer of security against someone who does not have the passcode.  The Government placed a sense of urgency on compelling individuals to provide biometric features as a means of bypassing their inability to compel the production of a passcode.  However, if a person cannot be compelled to provide a passcode because it is testimonial communication, a person cannot be compelled to provide one’s fingerprint, thumb, iris, face or other biometric feature to unlock the same device. 

Two: Requiring someone to place their finger or thumb to a digital device is fundamentally different than requiring a suspect to submit to fingerprinting.  When a person uses their finger or thumb to unlock a device, they are asserting that the device belongs to them. By doing so, they assert that they are in the possession and control of the device with ownership or access to the phone and all of its digital contents are verified.  The act of unlocking a phone with a finger or thumbprint scan far exceeds the physical evidence created when a suspect submits to fingerprinting to compare his fingerprints to existing physical evidence found at a crime scene because there is no comparison or witness for the former.  A finger or thumb scan either confirms or denies the ownership or control of a device and, unlike fingerprinting, the authenticity cannot be reasonably disputed.   

The Court held that the foregone conclusion doctrine does not apply here.  The foregone conclusion doctrine is an application of the Fifth Amendment by which the Government can show that no testimony is at issue.  It is used when the witness adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the documents.  It does not apply when the Government cannot show prior knowledge of the existence or the whereabouts of the documents ultimately produced in response to a subpoena.  Advanced mobile phones are entitled to greater privacy protection because they contain not only a digital form of many sensitive records that can be found in a search of a home but also a broad array of private information never found in a home in any form in the absence of the phone.  Therefore, mobile phones are subject to different treatment than more traditional storage devices, like safes, and should be awarded more protection.  

Miranda Warnings and FRCP Rule 16: Government’s Misrepresentation Prevents Motion To Suppress And Mandates New Trial

Published By Stephen Preziosi

FRCP   Rule 16: Government’s Misrepresentation Prevents Motion To Suppress And Mandates New Trial

United States of America v. Vinas

2018 WL6381164

United States Court of Appeals – 2nd Circuit

Decided on December 6th, 2018

Appeals to the Second Circuit

Federal Appeals Lawyer in New York, Connecticut, Vermont 

ISSUE

Whether the defendant is entitled to a new trial where the Government inaccurately portrayed how a pre-arrest statement was obtained from the defendant where the statement was made to four federal officers at the airport in a search room prior to defendant being Mirandized and the misrepresentation prevented the defendant from making a motion to suppress the statement pursuant to Federal Rules of Criminal Procedure Rule 16. 

HOLDING

The Courts held that a new trial is warranted because the Government inaccurately portrayed how a pre-arrest statement was obtained denying defendant the opportunity to make a suppression motion.  Rule16(a)(1)(A) requires the government to disclose the substance not only of the incriminating post-arrest oral statements which it intends to use at trial, but also the substance of the defendant’s response to any Miranda warnings which preceded the statements.

FACTS OF THE CASE

On November 15, 2015 defendantFrancis Patino Vinas arrived at JFK airport after a five-day trip to the Dominican Republic.  He approachedCustoms Control Point and present his suitcase and backpack for inspection where he was selected for further inspection and was referred to the BaggageInspection Area, where United States Customs and Border Protection (“CBP”) officer Francisco Santos inspected the contents of his suitcase.

Officer Santos took Vinas into a private room (the“Search Room”) where he and three other armed CBP officers asked Vinas where he had gotten the bottle of Mamajuana. Vinas replied that he had bought the bottle at a store outside the airport in the Dominican Republic.  Officer Santos discovered further evidence of tampering and broke the bottom on the bottle, spilling the contents of the bottle into the bag.  Various “blue oblong objects” were observed  blue objects in the bag and cut it open, revealing a white powdery substance that was later revealed to be cocaine. 

Vinas was placed under arrest. Prior to being Mirandized  and during the initial inspection of his luggage by U.S. Customs and Border Protection officers, Vinas stated, in sum and substance, that he purchased the bottle of “Mamajuana” at a store in theDominican Republic. He was later advised of his Miranda Rights and he waived those rights.  

Vinas was indicted for importing cocaine.  The Government produced discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure, which included Vinas’ signed Miranda waiver and a document describing Vinas’ statements that he had been given the bottle of Mamajuana by Chelo. 

Prior to trial, the Government made a supplemental production of Rule 16 material. The Government’s disclosure stated: During the initial inspection of his luggage by U.S. Customs and Border Protection officers, Vinas stated, in sum and substance, that he purchased the bottle of “Mamajuana” at a store in the Dominican Republic. The defense did not move to suppress this statement before trial because they were unaware that the statement was given pre-Miranda. 

 The only issue at trial was whether Vinas knew that the Mamajuana bottle contained cocaine.  During the Government’s opening statement, they described the expected testimony given by Officer Santos which stated that after Vinas was taken to “a private search room,” he claimed to have purchased the Mamajuana bottle at a store in the Dominican Republic (the “Store Statement”).  Defense counsel immediately notified the district court that, until the Government’s opening, they were unaware that Vinas purportedly made the Store Statement in the Search Room in the presence of four armed CBP officers, prior to receiving Miranda warnings. 

Defense counsel argued that he would have moved before trial to suppress the Store Statement if he had known about the factual context.  Despite this, the district court allowed the Government to proceed with Officer Santos’ direct testimony, the aforementioned Store Statement and simply assured the defense counsel that they would have the opportunity to make any necessary motion.  During the initial and rebuttal summations, the Government mentioned the Store Statement Vinas made in the Search Room nine times and made it central to their argument that Venus was aware he was importing cocaine. 

The jury convicted Vinas on both counts of the Indictment.  After his conviction, he moved for a new trial, arguing that the Government’s Rule 16 disclosure regarding Vinas’ Store Statement misled the defense into forgoing a pretrial motion to suppress that statement.  The district court denied Vinas’ motion.   

COURT’S ANALYSIS

The Courts held that a new trial is warranted because the Government inaccurately portrayed how a pre-arrest statement was obtained by federal authorities in violation of Rule 16 (a)(1)(A)therefore denying the defendant the opportunity to make a suppression motion.  Rule 16(a)(1)(A) states:

Upon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person that defendant knew was a government agent if the government intends to use the statement at trial.  Fed. R. Crim. P. 16(a)(1)(A). 

The district court was in error when they concluded that the Government complied with the requirements of Rule 16 because they relied on the reasoning that this Court rejected in United States v. McElroy, 697 F.2d 459(2d Cir. 1982). 

In McElroy, before trial, the Government responded to the defendant’s request for Rule 16 materials by producing a post-arrest statement by the defendant in which the defendant claimed that he was present at the transaction only out of concern for the safety of an accomplice, which the Government said the defendant “volunteered” to a DEA agent. During the trial, however, it arose that prior to making this statement, the defendant chose to remain silent and meet with an attorney before being questioned further, invoking his Miranda right.  Afterward, the defendant initiated a conversation with a DEA agent and was read his Miranda rights a second time which he chose to waive and proceeded to making the inculpatory statement at issue.  The Court held that the Government violated Rule 16(a)(1)(A) and reversed the defendant’s conviction because they failed to disclose the defendant’s initial oral invocation of his Miranda rights.

The Second Circuit rejected the district court’s determination that the Government properly disclosed the Store Statement under Rule 16 since “nothing was concealed,” or “withheld.” because it was established in McElroy that “Rule16(a)(1)(A) requires the government to disclose the substance not only of the incriminating post-arrest oral statements which it intends to use at trial, but also the substance of the defendant’s response to any Miranda warnings which preceded the statements.” 697 F.2d at 464. Like in McElroy, theGovernment’s disclosure in this case offered a precise summary of the defendant’s alleged statement, coupled with a misleading depiction of the circumstances under which the defendant supposedly made it and therefore, misinformed defense counsel about the possible grounds for suppression.

Sentencing Guidelines: District courts possess broad discretion in imposing conditions of supervised release.

Published By Stephen Preziosi

 

United States v. Betts

886 F.3d 198 (2d Cir. 2018)

Second Circuit Court of Appeals

Decided on March 28, 2018

District courts possess broad discretion in imposing conditions of supervised release. A district court’s discretion to impose special conditions of supervised release is not untrammeled, and Court of Appeals will carefully scrutinize unusual and severe conditions.

Issue: Whether the (newly) imposed sentence of four years of supervised release is substantively unreasonable and whether the District Court erred in imposing a special conditions relating to alcohol and drugs.

Holding: The Court of Appeals for the Second Circuit held that the imposition of an additional four years of supervised release was not substantively unreasonable and the District Court did not err in imposing a special condition requiring Betts to submit a periodic drug test. However, the Court held that a total ban on alcohol was not reasonably related to the nature and circumstances of Betts’ offense.

Facts: Defendant Betts was sentenced to ten months’ imprisonment and four years of supervised release with special conditions. The sentence at issue stems from violations committed while Betts was already on supervised release from another conviction (conspiracy to commit bank fraud). The original sentence imposed for the bank fraud conviction was 24 months in prison, followed by five years of supervised release.

The more recent violations included two arrests for driving without a license and failure to make required restitution payments. In addition, Betts later admitted to failing to notify his probation officer within 72 hours of being arrested. Betts pleaded guilty to failing to notify his probation officer and was subjected to a maximum term of five years of supervised release. The District Court ordered Betts to refrain completely from consumption of alcohol while under supervision. The Court also required periodic drug testing from Betts, emphasizing a zero-tolerance order on the use of any drugs at all.

On appeal, Betts argued that the sentence of four years of supervised release was substantively unreasonable and that the District Court erred in imposing the special conditions involving drugs and alcohol.

Analysis: The Second Circuit reviewed Betts’ sentence for substantive reasonableness under a deferential abuse of discretion standard. Under that standard, a sentence is only unreasonable if it “cannot be located within the range of permissible decision.” United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010).

Betts presented this Court with three reasons as to why his sentence was substantively unreasonable: 1) his violation was not sufficiently egregious to warrant an additional four years of supervised release; 2) the District Court abused its discretion when it sentenced him to a term at the upper end of the applicable Guidelines range; 3) the District Court erred in discrediting defense counsel’s mitigation arguments.

The Court found Betts’ “insufficiently egregious” argument unpersuasive. Since the District Court made a careful assessment of the factual basis for Betts’ violation as well as his personal history and character, the Court’s imposition of four years of supervision was not an abuse of discretion. Among other factors, the District Court considered Betts’ repeated failure to make restitution payments and the fact that he escaped from supervision after his most recent arrest.

Unconvinced, again, by Betts’ next argument, the Second Circuit concluded that sentencing Betts at the upper end of the applicable Guidelines range was not an abuse of discretion. Both the imposed term of imprisonment and the term of supervised release were within the Guidelines range and Betts’ sentence fell within the broad range of reasonable sentences given his behavior while on supervised release.

Last, the Court rejected Betts’ argument that the District Court erred in discrediting some of defense counsel’s mitigation arguments. The Court noted that at sentencing, defense counsel brought before the District Court claims that Betts was taking serious steps toward better behavior. However, the District Court was not convinced because Betts’ actions contradicted these statements. Thus, the District Court’s decision was not an abuse of discretion because it properly weighed the evidence.

While the Second Circuit was unmoved by Betts’ initial claims of abuses of discretion, it saw merit in Betts’ ‘special conditions’ argument. A sentencing court may impose special conditions that are reasonably related to “the nature and circumstances of the offense and the history and characteristics of the defendant” ; “the need for the sentence imposed to afford adequate deterrence to criminal conduct” ; “the need to protect the public from further crimes of the defendant” ; and “the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner,” and which “involve no greater deprivation of liberty than is reasonably necessary” for these purposes. U.S. Sentencing Guidelines § 5D1.3(b); see also United States v. Myers, 426 F.3d 117, 123-25 (2d Circ. 2005).

First, Betts argued that a special condition prohibiting alcohol use is not reasonably related to either his underlying crime or the violation and the ban involves greater deprivation of liberty than necessary. The Second Circuit agreed with Betts and concluded that there was no evidence to suggest that Betts abused alcohol. The District Court also failed to clarify why it imposed this special condition other than the fact that it was not happy with Betts’ behavior. Thus, the Second Circuit vacated the District Court’s special condition ordering Betts to ban “all alcohol use.”

Betts also urged the Second Circuit to vacate the District Court’s special condition requiring substance abuse testing with “zero tolerance of the use of any drugs at all.” Betts claimed that the ban referred to all drugs, including prescription drugs. However, looking at the entered judgment, the Second Circuit concluded that the actual ban was only meant for controlled substances and not prescription drugs. The Court concluded that such a ban was “entirely appropriate.”

Dunaway v. New York: Fourth Amendment Violation As Basis To Suppress Statements Despite Miranda Warnings

Published By Stephen Preziosi

Dunaway v. New York

U.S. Supreme Court

442 U.S. 200 (1979)

Decided on June 5, 1979

Throw-Back-Thursday Blog Post.

This week we consider another classic in the criminal law arena:  Dunaway v. New York was decided in light of Brown v. Illinois, 422 U.S. 590.  The Court’s finding would, like Mapp, transform the way we do business on a daily basis in criminal courts throughout the United States.  Reading through the Court’s analysis again was a refreshing reminder of the parameters of the Dunaway hearings and the rule of admissibility of statements in light of a Fourth Amendment violation despite the police administering Miranda warnings.

Issue: whether statements and sketches that were taken at a police station must be suppressed because of the unlawful detention of the defendant where he was brought to the police station and interrogated and whether the illegal detention was sufficiently attenuated to permit the use of the statements at trial.

Holding: The U.S. Supreme Court held that when police unconstitutionally seize and detain an individual for interrogation without probable cause, statements made by that individual must be suppressed regardless of giving proper Miranda warnings or voluntariness in the Fifth Amendment sense. Law enforcement may not violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the procedural safeguards of the Fifth.

Facts: A Rochester, New York detective questioned an inmate at a jail who allegedly had information about an attempted robbery and homicide in which the detective believed petitioner Dunaway was involved. Although the information was not enough for an arrest warrant, Dunaway was taken into custody where he was interrogated. He was told that if he attempted to leave, he would be physically restrained.

After being read his Miranda rights, Dunaway waived his right to counsel and supplied the detectives with self-incriminating statements and illustrations. Before trial, Dunaway moved to have the self-incriminating evidence suppressed, but the motion was denied and Dunaway was convicted.

The Rule In Brown v. Illinois

The U.S. Supreme Court vacated the conviction in light of Brown v. Illinois, 422 U.S. 590 (1975), where the Supreme Court held that there is no per se rule that Miranda warnings provide a cure-all for Fourth Amendment violations when incriminating statements result from custodial interrogation following an arrest on less than probable cause. The trial court granted Dunaway’s motion to suppress on remand, but the Appellate Division reversed. The Appellate Division reasoned that even if police lack probable cause for an arrest, they could still detain an individual under reasonable suspicion for questioning under “carefully controlled” conditions that do not violate the Fifth and Sixth Amendment rights.

The petitioner in Brown, like petitioner Dunaway, made inculpatory statements after receiving Miranda warnings during custodial interrogation following his seizure—in that case a formal arrest—on less than probable cause. Brown’s motion to suppress the statements was also denied and the statements were used to convict him. Although the Illinois Supreme Court recognized that Brown’s arrest was unlawful, it affirmed the admission of the statements on the ground that the giving of Miranda warnings served to break the causal connection between the illegal arrest and the giving of the statements. This Court reversed, holding that the Illinois courts erred in adopting a per se rule that Miranda warnings in and of themselves sufficed to cure the Fourth Amendment violation; rather the Court held that in order to use such statements, the prosecution must show not only that the statements meet the Fifth Amendment voluntariness standard, but also that the causal connection between the statements and the illegal arrest is broken sufficiently to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the Fourth Amendment.

The Case Was Remanded To The New York Court of Appeals And Then To The Trial Court 

In compliance with the remand, the New York Court of Appeals directed the Monroe County Court to make further factual findings.

On remand, the County Court in Rochester held that the factual predicate in this case did not amount to probable cause sufficient to support the arrest of the defendant and that the Miranda warnings by themselves did not purge the taint of the defendant’s illegal seizure, and granted the motion to suppress. The Appellate Division reversed finding that the taint of the illegal detention was sufficiently attenuated to allow the admission of his statements and sketches, emphasizing that the petitioner was never threatened or abused by the police. The Court of Appeals dismissed the petition for leave to appeal and the United States Supreme Court granted certiorari.

Analysis: Just four years prior, the Supreme Court decided that the Miranda warning is not a cure-all for Fourth Amendment violations when incriminating statements result from custodial interrogation following an arrest on less than probable cause. Brown v. Illinois, 422 U.S. 590 (1975). The Brown Court further ruled that for such obtained statements to be admissible, the prosecution would need to prove that those statements met voluntariness standards under the Fifth Amendment and that they were “sufficiently an act of free will to purge the primary taint” in light of the Fourth Amendment.

Miranda Warnings Were Proper

Although in agreement that there was no probable cause, the State purported that Dunaway’s seizure did not amount to an arrest and that because police had “reasonable suspicion,” questioning was permissible under the Fourth Amendment. The Supreme Court rejected this argument, concluding that while no “arrest” technically took place, the way the detectives treated Dunaway was indistinguishable from an official arrest, which amounted to an unlawful seizure under the Fourth Amendment.

The New York courts have consistently held, and petitioner does not contest, that proper Miranda warnings were given and that his statements were “voluntary” for purposes of the Fifth Amendment. But Brown v. Illinois, supra, settled that [t]he exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth,” 422 U.S., at 601, 95 S.Ct., at 2260, and held therefore that “Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.” Ibid.

Miranda Does Not Attenuate The Fourth Amendment Violation 

“If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. . . . Arrests made without warrant or without probable cause, for questioning or ‘investigation,’ would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings.” Id., at 602, 95 S.Ct., at 2261.

Consequently, although a confession after proper Miranda warnings may be found “voluntary” for purposes of the Fifth Amendment,18 this type of “voluntariness” is merely a “threshold requirement” for Fourth Amendment analysis, 422 U.S., at 604, 95 S.Ct., at 2262. Indeed, if the Fifth Amendment has been violated, the Fourth Amendment issue would not have to be reached.

The Test From Brown v. Illinois

Beyond this threshold requirement, Brown articulated a test designed to vindicate the “distinct policies and interests of the Fourth Amendment.

When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but also use of the evidence is more likely to compromise the integrity of the courts.

Brown identified several factors to be considered “in determining whether the confession is obtained by exploitation of an illegal arrest[:t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct . . . . And the burden of showing admissibility rests, of course, on the prosecution.

No intervening events broke the connection between petitioner’s illegal detention and his confession. To admit petitioner’s confession in such a case would allow “law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the ‘procedural safeguards’ of the Fifth.

The Supreme Court looked to the exclusionary rule, which prohibits unconstitutionally obtained evidence from being used in state and federal court, and determined that even when Miranda warnings are given and statements are voluntarily under the Fifth Amendment, if an individual was seized illegally under the Fourth Amendment, the elicited statements resulting from the custodial interrogation must be suppressed.