Boyle & Jasari Wins Major Decision in Wrongful Search Case

On January 17, 2025, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in United States v. Peter Schwartz, Case No. 23-3074. A central issue in the case concerned the seizure of a cell phone belonging to Mr. Schwartz and the FBI’s access to the information on the cell phone. At the time of his arrest on January 6^th related charges, the FBI had a search warrant to seize Mr. Schwartz’s cell phone.

As Mr. Schwartz was taken into custody, an agent brought his cell phone to him and told him that if there was anything he needed from the cell phone, he should get the information from the cell phone before it was placed into evidence. Mr. Schwartz thereafter used his thumb print to open the phone. Once the phone was opened, the agent grabbed the phone which, now opened, could be used to gather evidence against Mr. Schwartz.

Before trial, Boyle & Jasari moved to suppress the evidence obtained from the cell phone claiming it violated Mr. Schwartz’s Fifth Amendment rights. The government responded that the use of the fingerprint was not a “testimonial act” and therefore not subject to suppression. Specifically, the government cited to numerous cases where the government compelled a suspect to provide fingerprints for comparison to other fingerprints found at crime scenes or on evidence seized by the government. Boyle & Jasari countered that a fingerprint used to open a cell phone is different from a fingerprint used for comparison to another fingerprint because the use of the fingerprint communicated that the cell phone and all personal information stored on the cell phone belonged to him.

After a hearing in the District Court, the Judge denied the motion to suppress finding that providing a fingerprint was not a “testimonial act” and that the Fifth Amendment was therefore inapplicable to the FBI’s “collection” of Mr. Schwartz’s fingerprint. Following a jury trial, Mr. Schwartz was convicted and sentenced to a lengthy prison sentence. Boyle & Jasari appealed the conviction contending that the FBI’s trickery in obtaining the fingerprint to gain access to his cell phone was indeed a testimonial act. Following an oral argument on the matter, the Court of Appeals agreed that the use of the fingerprint under the facts of this case was a testimonial act.

This is the first time that a U.S. Court of Appeals found that the use of a fingerprint to unlock a cell phone constitutes a testimonial act under the Fifth Amendment. Previously, the U.S. Court of Appeals for the Ninth Circuit, in United States v. Payne, Case No. 22-50262, found that “the compelled use of a biometric to unlock an electronic device was not testimonial because it required no cognitive exertion.”

To view the opinion of the Court please click below:

https://www.govinfo.gov/content/pkg/USCOURTS-caDC-23-03075/pdf/USCOURTS-caDC-23-03075-0.pdf