D.C.Cir.: Compelling defendant to unlock his phone was a 5A testimonial act

The 5th Amendment: “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.”

Seen at FourthAmendment.com:

Compelling defendant to unlock his phone was a testimonial act under Hubbell, and it had to be suppressed. (Deciding the Fifth Amendment claim moots need to decide the Fourth Amendment claim.) United States v. Brown, 2025 U.S. App. LEXIS 1219 (D.C. Cir. Jan. 17, 2025):

So too here. When, in response to the command to unlock the phone, Schwartz opened it, that act disclosed his control over the phone, his knowledge of how to access it, and the existence, authenticity, and ownership of documents within it. In addition, opening the phone was tantamount to answering a series of questions about ownership or control over the phone, including how it could be opened and by whom.

In short, under both the physical-trait and act-of-production caselaw, Schwartz’s compelled unlocking of the phone was testimonial.

Because the compelled opening of the cellphone was testimonial, both the message communicated by that action and any evidence obtained from that communication must be suppressed. See Kastigar, 406 U.S. at 445 (The Fifth Amendment “protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”); Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968) (“[T]he same principle that prohibits the use of confessions [wrongfully obtained] also prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree, to invoke a time-worn metaphor.”). In unlocking the phone, Schwartz disclosed that he had access to the phone and therefore also the ability to use it, and the government then used those testimonial acts in prosecutorial actions against Schwartz.