Second-Degree Burglary, the Cell Phone and the Fifth Amendment

This post examines a recent opinion from the Court of Appeals of Minnesota: State v. Diamond, 2017 WL 163710 (2017).  The court begins the opinion by explaining that

[a]ppellant Matthew Vaughn Diamond appeals his convictions of second-degree burglary, misdemeanor theft, and fourth-degree criminal damage to property following a jury trial. On appeal, Diamond argues his convictions must be reversed because. . . . the district court violated his Fifth Amendment privilege against compelled self-incrimination by ordering him to provide his fingerprint so police could search his cellphone. . . .

State v. Diamond, supra.

Then, as courts usually do, the Court of Appeals explains how, and why, the prosecution arose:

On October 30, 2014, M.H. left her Chaska home between 10:30 and 10:45 a.m. to run errands. M.H. returned home around noon and noticed that the attached garage's side-entry door appeared to have been kicked in from the outside. M.H. called the police after discovering that a safe, a laptop, and several items of jewelry were missing from her home. While waiting for police to arrive, M.H. found an envelope in her driveway that had the name of S.W. written on it. Police took photographs and measurements of the shoeprints left on the garage's side-entry door.

Detective Nelson of the Chaska Police Department used state databases to determine S.W.'s car model and license plate number and that S.W. had pawned several pieces of jewelry at a Shakopee pawn shop on October 30. M.H. later verified that the pawned jewelry was stolen from her home. On November 4, police located S.W.'s car, which Diamond was driving at the time. Diamond was arrested on an outstanding warrant unrelated to this case. He was booked at the Scott County jail, where staff collected and stored his property, including his shoes and cellphone.

The following day, Detective Nelson went to the jail and viewed the property that was taken from Diamond. Detective Nelson observed similarities between the tread of Diamond's shoes and the shoeprints left on the garage's side-entry door. Detective Nelson informed the jail staff that she was going to seek a warrant to seize Diamond's property and gave instructions not to release the property to anyone. Later that day, S.W. attempted to collect Diamond's property but was told that it could not be released.

On November 6, Detective Nelson obtained and executed a warrant to search for, and seize, Diamond's shoes and cellphone. On November 12, Detective Nelson obtained an additional warrant to search the contents of Diamond's cellphone. Detective Nelson was unable to unlock the cellphone. She returned the warrant on November 21.

State v. Diamond, supra.

The reference above to “returning” the warrant refers to a standard practice when officers execute search warrants.  Rule 41 of the Federal Rules of Criminal Procedure explains, for example, that

[t]he officer executing the warrant must promptly return it—together with a copy of the inventory—to the magistrate judge designated on the warrant. The officer may do so by reliable electronic means. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.

Federal Rules of Criminal Procedure 41(f)(1)(D).

The Court of Appeals then begins its analysis of the issue in the case, explaining that

[i]n December, the state filed a motion to compel Diamond to provide his fingerprint on the cellphone to unlock the phone. The motion was deferred to the contested omnibus hearing. Following that hearing, the district court issued an order, filed February 11, 2015, concluding that the warrant to search Diamond's cellphone was supported by probable cause and that compelling Diamond to provide his fingerprint to unlock the cellphone does not violate his Fifth Amendment privilege against compelled self-incrimination. The district court granted the state's motion to compel and ordered Diamond to provide a fingerprint or thumbprint to unlock his cellphone. Diamond refused to comply. On April 3, the district court found Diamond in civil contempt and informed him that compliance with the order would remedy the civil contempt. Diamond provided his fingerprint, and police immediately searched his cellphone.

State v. Diamond, supra.

The opinion goes on to explain that

[a]t a second omnibus hearing Diamond challenged the refusal to release his cellphone and shoes to S.W., arguing that it constituted a warrantless seizure not justified by any exception to the warrant requirement. The district court's April 3 order concluded that the seizure was justified by exigent circumstances and was tailored to protect against the destruction of evidence while a warrant was sought and obtained. Diamond thereafter brought a pro se motion to suppress all evidence derived from his cellphone and shoes, which the district court denied, relying on the previous orders from February 11 and April 3.

State v. Diamond, supra.

The court then explains what happened when Diamond went to trial:

At Diamond's jury trial, S.W. testified that: (1) she believed she was working the day of the burglary; (2) the envelope found in M.H.'s driveway belonged to S.W., and it was in her car the last time she saw it; (3) S.W. sometimes let Diamond use her car when she was working; and (4) on the day of the burglary, Diamond gave her M.H.'s stolen jewelry, and the two of them traveled to the Shakopee pawn shop, where she sold the jewelry. In addition, the state also introduced evidence that: (1) Diamond's wallet and identification card were found in S.W.'s car; (2) Diamond and S.W. exchanged phone calls and text messages throughout the day of the burglary; (3) Diamond's cellphone pinged off cell towers near M.H.'s residence on the day of the burglary; (4) the tread pattern on Diamond's shoes was similar to the shoeprints on the garage's side-entry door; and (5) while in jail, Diamond told S.W. “the only thing that [the state is] going to be able to charge me with is receiving stolen property” and that his attorney said the case would be dismissed if S.W. did not testify or recanted her statement.

State v. Diamond, supra.

The opinion then explains that

[t]he jury found Diamond guilty of second-degree burglary, misdemeanor theft, and fourth-degree criminal damage to property. The district court sentenced Diamond to 51 months in prison for the second-degree burglary and to 90 days in jail for the fourth-degree criminal damage to property.

State v. Diamond, supra.

Diamond appealed, raising three different issues.  As noted above, this post only examines one of them: “Did the district court err by ordering Diamond to provide his fingerprint so police could search his cellphone?” State v. Diamond, supra.

The Court of Appeals began its analysis of this issue by explaining that

Diamond argues that the district court's order to provide his fingerprint to unlock his cellphone violated his Fifth Amendment privilege against compelled self-incrimination. This is an issue of first impression for Minnesota appellate courts. Whether the district court violated Diamond's Fifth Amendment privilege against self-incrimination is a question of law, which this court reviews de novo. State v. Kaquatosh, 600 N.W.2d 153, 156 (Minn. App. 1999), review denied (Minn. Dec. 14, 1999).

State v. Diamond, supra.

The court goes on to explain that 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; see Malloy v. Hogan, 378 U.S. 1, 8 (1964) (incorporating Fifth Amendment protections into the Due Process Clause of the Fourteenth Amendment). `The essence of this basic constitutional principle is the requirement that the [s]tate which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.’ Estelle v. Smith, 451 U.S. 454, 462 (1981) (quotation and emphasis omitted). The Supreme Court has explained that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.” Fisher v. United States, 425 U.S. 391,409 (1976). Here, the record establishes that Diamond was compelled to produce his fingerprint to unlock the cellphone. The record also reflects that police obtained incriminating evidence once the cellphone was unlocked. Therefore, the question before this court is whether the act of providing a fingerprint to unlock a cellphone is a `testimonial communication.’

State v. Diamond, supra.

The court also explained that

[i]n examining its application of Fifth Amendment principles, the Supreme Court has established that, `in order to be testimonial, [a criminal defendant'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.’ Doe v. United States, 487 U.S. 201, 210, (1988). The Supreme Court has further noted that

[t]his understanding is perhaps most clearly revealed in those cases in which the Court has held that certain acts, though incriminating, are not within the privilege. Thus, 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. at 201,108 S.Ct. at 2347 (citing United States v. Dionisio, 410 U.S. 1, 7

 (1973) (voice exemplar); Gilbert v. California, 388 U.S. 263, 266–67 (1967) (voice (1967) (handwriting exemplar); United States v. Wade, 388 U.S. 218, 221–22 (1967) (lineup); Schmerberv. California, 384 U.S. 757, 765 (1966) (blood sample); Holt v.United States, 218 U.S. 245, 252–53 (1910) (clothing)). In addition, the Supreme Court has recognized that `both federal and state courts have usually held that [the Fifth Amendment] offers no protection against compulsion to submit to fingerprinting.’ Schmerber, supra; see Doe, 487 U.S. at 219, 108 S.Ct. at 2352 \(Stevens, J., dissenting) (`Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will’); State v. Breeden, 374 N.W.2d 560, 562 (Minn. App. 1985) (`The gathering of real evidence such as blood samples, fingerprints, or photographs does not violate a defendant's [F]ifth [A]mendment rights’).

State v. Diamond, supra.

The court then goes on to explain that

Diamond relies on In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012), to support his argument that supplying his fingerprint was testimonial. In In re Grand Jury, the court reasoned that requiring the defendant to decrypt and produce the contents of a computer's hard drive, when it was unknown whether any documents were even on the encrypted drive, `would be tantamount to testimony by [the defendant] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.’ Id. at 1346. The court concluded that such a requirement is analogous to requiring production of a combination and that such a production involves implied factual statements that could potentially incriminate. Id.

By being ordered to produce his fingerprint, however, Diamond was not required to disclose any knowledge he might have or to speak his guilt. See Doe, 487 U.S. at 211, 108 S.Ct. at 2348. The district court's order is therefore distinguishable from requiring a defendant to decrypt a hard drive or produce a combination. See, e.g., In re Grand Jury, 670 F.3d at 1346; United States v. Kirschner, 823 F.Supp.2d 665, 669 (E.D. Mich. 2010) (holding that requiring a defendant to provide computer password violates the Fifth Amendment). Those requirements involve a level of knowledge and mental capacity that is not present in ordering Diamond to place his fingerprint on his cellphone. Instead, the task that Diamond was compelled to perform—to provide his fingerprint—is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing. See Doe, 487 U.S. at 210, 108 S.Ct. at 2347–48.

Diamond argues, however, that the district court's order effectively required him to communicate `that he had exclusive use of the phone containing incriminating information.’ This does not overcome the fact that such a requirement is not testimonial. In addition, Diamond provides no support for the assertion that only his fingerprint would unlock the cellphone or that his provision of a fingerprint would communicate his exclusive use of the cellphone.

State v. Diamond, supra.

The opinion goes on to explain that

Diamond also argues that he `was required to identify for the police which of his fingerprints would open the phone’ and that this requirement compelled a testimonial communication. This argument, however, mischaracterizes the district court's order. The district court's February 11 order compelled Diamond to `provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone.’ At the April 3 contempt hearing, the district court referred to Diamond providing his `thumbprint.’ The prosecutor noted that they were `not sure if it's an index finger or a thumb.’ The district court answered, `Take whatever samples you need.’ Diamond then asked the detectives which finger they wanted, and they answered, `The one that unlocks it.’

State v. Diamond, supra.

The opinion winds up the analysis of this particular issue by explaining that,

[i]t is clear that the district court permitted the state to take samples of all of Diamond's fingerprints and thumbprints. The district court did not ask Diamond whether his prints would unlock the cellphone or which print would unlock it, nor did the district court compel Diamond to disclose that information. There is no indication that Diamond would have been asked to do more had none of his fingerprints unlocked the cellphone. Diamond himself asked which finger the detectives wanted when he was ready to comply with the order, and the detectives answered his question. Diamond did not object then, nor did he bring an additional motion to suppress the evidence based on the exchange that he initiated.

In sum, because the order compelling Diamond to produce his fingerprint to unlock the cellphone did not require a testimonial communication, we hold that the order did not violate Diamond's Fifth Amendment privilege against compelled self-incrimination.

State v. Diamond, supra.

The Court of Appeals appended a footnote after the last sentence in the paragraph immediately above, in which it explained that “[w]e express no opinion regarding whether, in a given case, a defendant may be compelled to produce a cellphone password, consistent with the Fifth Amendment.” State v. Diamond, supra.