In United States v. Payne,[1] the Ninth Circuit Court of Appeals affirmed the denial of a parolee’s motion to suppress evidence.  The Court concluded that an officer’s use of a parolee’s fingerprint to unlock the parolee’s phone did not violate his constitutional rights under the circumstances presented and the parole conditions applicable here.


In November 2018, Jeremy Travis Payne was arrested for assault with a deadly weapon on a peace officer and sentenced to three years imprisonment.  He was later released on parole, signing in September 2020 a one-page “Notice and Conditions of Parole” document and a separate, three-page “Special Conditions of Parole” document.  Pursuant to Penal Code section 3067(b)(3) and 15 Cal. Code Regs. section 2511(b)(4), Payne’s Notice and Conditions of Parole included the following condition (“general search condition”)[2]:

You, your residence, and any property under your control are subject to search or seizure by a probation officer, an agent or officer of the California Department of Corrections and Rehabilitation, or any other peace officer, at any time of the day or night, with or without a search warrant, with or without cause.

Payne’s Special Conditions of Parole included a more detailed condition (“special search condition”) concerning electronic devices:

You shall surrender any digital/electronic device and provide a pass key/code to unlock the device to any law enforcement officer for inspection other than what is visible on the display screen.  This includes any digital/electronic device in your vicinity.  Failure to comply can result in your arrest pending further investigation and/or confiscation of any device pending investigation.

In November 2021, California Highway Patrol (“CHP”) Officers Coddington and Garcia were patrolling an area in Desert Hot Springs, California.  They noticed a vehicle with what they thought were unlawfully tinted front windows and initiated a traffic stop.  Officer Coddington approached the vehicle and asked the driver, Payne, to provide his driver’s license, vehicle registration, and proof of insurance.  Payne told the officers that he was on California parole.  Officer Coddington confirmed Payne’s California parole status with Riverside County Sheriff’s Dispatch.  Officers searched Payne’s person and his vehicle, which yielded a key ring with several keys and cash.  One of these keys was later used to unlock the front door of a home in Palm Desert.

Officer Coddington asked Payne if he had a phone.  Payne responded that his phone was in the driver’s door panel and was green in color.  Officer Coddington retrieved the phone and asked Payne to provide the passcode.  Payne then stated, “the phone was not his and he did not have the password.”  Officer Coddington did not confiscate the phone or arrest Payne pending further investigation as Payne’s special search condition described.  Instead, the officer forcibly grabbed Payne’s thumb and used it to unlock the phone via a built-in biometric unlocking feature.  The phone had videos and application information that, upon further investigation, culminated in a search warrant of the Palm Desert home.  The search of the home yielded, among other things, drugs and drug distribution evidence.  Payne was arrested and charged with three counts of possessionwith intent to distribute fentanyl, fluorofentanyl, and cocaine.

After the District Court denied Payne’s motion to suppress evidence of these crimes recovered from a home in Palm Desert, California, Payne entered a conditional guilty plea to possession of fentanyl with intent to distribute at least 40 grams.  He was sentenced to 144 months in prison.  Payne appealed challenging the denial of his motion to suppress.  He argued that the CHP officers violated his Fourth and Fifth Amendment rights.


The Ninth Circuit Court of Appeals first considered Payne’s Fourth Amendment challenges to the CHP officers’ search of his cell phone.  The Court observed that the general suspicionless search condition in his Notice and Conditions of Parole was mandated by California law.[3]  The California Supreme Court held that this condition was reasonable under the Fourth Amendment, explaining that parolees have a significantly diminished expectation of privacy, while the governmenthas a strong interest in assessing parolees’ rehabilitation and reentry while simultaneously protecting the public.  People v. Reyes, 968 P.2d 445, 450-51 (Cal. 1998); People v. Bryant, 491 P.3d 1046, 1054 (Cal. 2021) (“[A] warrantless search of a parolee’s property or residence … is per se reasonable.”).  The Supreme Court of the United States upheld suspicionless searches of parolees based on the totality of the circumstances provided they are not “arbitrary, capricious, or harassing.” Samson v. California, 547 U.S. 843, 856-57 (2006).

The Ninth Circuit noted that the Circuit’s recent cases had set forth “the narrow set of constraints that apply to law enforcement officers conducting suspicionless parole searches.”  First, the officer conducting the parole search must have probable cause to believe “that the individual to be searched is on active parole, and an applicable parole condition authorizes the search or seizure at issue.”  United States v. Estrella, 69 F.4th 958, 972 (9th Cir. 2023).  Second, those searches cannot be “arbitrary, capricious, or harassing.” Id.  (internal quotations and citations omitted); Reyes, 968 P.2d at 450; see Cal. Penal Code § 3067(d) (“It is not the intent of the Legislature to authorize law enforcement officers to conduct searchesfor the sole purpose of harassment.”).

Regarding the first constraint, Payne first argued that the officers did not follow the precise terms of the special search condition and so the parole search exception to the warrant requirement could not apply.  The language of the special search condition of Payne’s parole required him to surrender any electronic device and provide a pass key or code, but did not specifically require him to provide a biometric identifier to unlock the device.

The Ninth Circuit stated that this argument ignored the more general, statutorily mandated search condition included in Payne’s—and every California parolee’s—Notice of Conditions of Parole.  This condition allowed the suspicionless search of “any property under [Payne’s] control”…”with or without a search warrant, with or without cause.”  The Court observed that under the general search condition of Payne’s parole, he did not have an “expectation of privacy that society would recognize as legitimate” in the contents of his cell phone.  Samson, 547 U.S. at 852.  The Court noted that the Ninth Circuit had previously held that California’s statutory framework governing the suspicionless search of parolees authorizes officers to conduct warrantless searches of parolees’ cell phones.  See United States v. Johnson, 875 F.3d 1265, 1275 (9th Cir. 2017).

Here, having confirmed Payne’s California parole status with the Riverside County Sheriff’s dispatch, Officer Coddington was on notice of Payne’s general search condition.  The Ninth Circuit found that as a California officer, dealing with a California parolee, Officer Coddington reasonably believed that Sections 3067(b)(3) and 2511(b)(4) authorized him to search Payne, his vehicle, and his belongings, including his cell phone.  The search was thus independently justified under Payne’s general search condition.  The special search condition did not vitiate the force of the general search condition.

The Court found that the fact that Payne was also subject to a special electronic device search condition, of which Officer Coddington was also aware, did not place the search of Payne’s cell phone outside of the realm of reasonableness, even considering the way Officer Coddington accessed its contents.  The Court noted that law enforcement officers in the field can proceed with a search under a parolee’s general search condition, assuming that search is reasonable.  Special conditions are imposed based on a parolee’s particular offense and criminal history—i.e., aggravating factors—and are designed as a further means by which the department can “discourage criminal behavior.”[4]  The Ninth Circuit thus held that the CHP officers did not violate the Fourth Amendment in their search of Payne’s cell phone, despite the officers’ forced use of his thumb to unlock the device.

The Court further held that the search of the cell phone was not unreasonable on a theory that it violated California’s prohibition against arbitrary, capricious, or harassing searches.  This prohibition, the Court explained, is “decidedly narrow” and only applies to situations where, for example, a search “is based merely on a whim or caprice or when there is no reasonable claim of a legitimate law enforcement purpose.”  Estrella, 69 F.4th at 972 (quoting People v. Cervantes, 127 Cal. Rptr. 2d 468, 471 (4th Dist. 2002), as modified (Dec. 23, 2002)).  The Court found that the CHP officers who legitimately stopped Payne did so based on their independent suspicion that Payne had violated California’s Vehicle Code.  They proceeded with their investigation logically and appropriately after learning Payne was a California parolee and observing his behavior.

The Court of Appeals next considered Payne’s argument that CHP officers violated his Fifth Amendment privilege against self-incrimination when they compelled him to unlock his cell phoneusing his fingerprint.  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 Court explained that for a criminal defendant to benefit from the Fifth Amendment privilege, there must be a “communication” at issue that is: (1) compelled; (2) incriminating; and (3) testimonial.  See Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cnty., 542 U.S. 177, 189 (2004).  The government conceded that Payne had established the compelled and incriminating prongs of the analysis, leaving the testimonial prong.  The Court explained that testimonial communications are those that, “explicitly or implicitly, relate a factual assertion or disclose information.”  Doe v. United States, 487 U.S. 201, 210 (1988).  Payne said nothing when CHP officers used his thumb to unlock his phone.  His Fifth Amendment claim thus rested entirely on whether the use of his thumb implicitly related certain facts to officers such that he could avail himself of the privilege against self-incrimination.

The Court explained that compelled physical acts—i.e., those that require an individual to serve as a “donor”—are not testimonial.  Prior physical trait cases have addressed circumstances where an individual is compelled to: wear a particular piece of clothing, Holt v. United States, 218 U.S. 245, 252-53 (1910); stand in a lineup, United States v. Wade, 388 U.S. 218, 223 (1967); provide a handwriting or voice exemplar, Gilbert v. California, 388 U.S. 263, 266-67 (1967) (handwriting exemplar); Wade, 388 U.S. at 222-23 (1967) (voice exemplar); submit to fingerprinting, Wade, 388 U.S. at 223; or have their blood drawn for DUI testing, Schmerber v. California, 384 U.S. 757, 761 (1966).  The Ninth Circuit noted that each case reached the same conclusion: not testimonial.

The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s denial of Payne’s motion to suppress.


Regarding the Fifth Amendment biometric phone unlocking issue here, agencies may note the Ninth Circuit’s emphasis on the outcome’s dependence upon the particular circumstances of the case.  The Court stated that it “would be remiss not to mention that Fifth Amendment questions like this one are highly fact dependent and the line between what is testimonial and what is not is particularly fine.  Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device.  Indeed, the outcome on the testimonial prong may have been different had Officer Coddington required Payne to independently select the finger that he placed on the phone.  See In re Search Warrant Application for [redacted text], 279 F. Supp. 3d at 804 (discussing how a suspect would be required to engage in some thought process if the government compels them to “decide which finger (or fingers) to apply” to a sensor).”  This case emphasizes the fact that it is critical to ascertain the nature of the search terms with respect to each individual to be searched to ensure that a law enforcement officer does not exceed those terms in a given incident.

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2024 U.S. App. LEXIS 9256 (9th Cir. Apr. 17, 2024).

[2] This general search condition is “mandated as a term of every parolee’s release” in the State of California. People v. Delrio, 259 Cal. Rptr. 3d 301, 305 (1st Dist. 2020); see People v. Schmitz, 288 P.3d 1259, 1264-65 (Cal. 2012).

[3] Penal Code section 3067(b)(3) and 15 Cal. Code Regs. section 2511(b)(4).

[4] Parole Conditions, Cal. Dep’t of Corrs. & Rehab., https://www.cdcr.ca.gov/parole/parole-conditions/ (as of Apr. 10, 2024).