United States v. Brown, 2025 WL 223881 (D.C. Cir. 2025)
On Jan. 6, 2021, Peter Schwartz, Jeffrey Brown and Markus Maly were in the mob assaulting officers in the Lower West Terrace tunnel, engaged in “hand-to-hand combat” using baseball bats, flagpoles, sticks, chairs, “pretty much anything that you can think of.” Officers described the scene in the tunnel as “pretty terrifying” and “hell.” One police officer testified the “tunnel was by far his worst experience” during the January 6 attacks on police. More than 150 police officers were injured.
During the melee, Schwartz, who already had a lengthy history of violent crime, struck an officer in the head with a chair, then bragged about it in a text sent the following day. Schwartz and Maly both shot pepper spray into the faces of police officers.
As part of the investigation into the men’s actions, FBI investigators compelled Schwartz to press his thumb to his cell phone to unlock it biometrically. The evidence obtained from the phone was used to try and convict Brown, Maly and Schwartz. Schwartz complained the compelled thumbprint violated his Fourth and Fifth Amendment rights.
The trial court denied Schwartz’s motions to suppress evidence obtained from his cellphone. The judge agreed investigators had compelled Schwartz to unlock his phone but ruled this act was not testimonial. The court reasoned that Fifth Amendment privilege does not apply when “the government merely compels some physical act, i.e., where the individual is not called upon to make use of the contents of his mind.” The trial court also found the good faith exception, though typically relevant in the Fourth Amendment context, applied to Schwartz’s Fifth Amendment claim. Schwartz exercised his right to appeal.
The court of appeals disagreed with the trial court and held that compelling Schwartz to unlock his cellphone violated the Fifth Amendment. The appellate court remanded to the trial court to determine whether any of Schwartz’s counts of conviction must be vacated due to the compelled thumbprint. (There was substantial other evidence of his crimes.) However, in the meantime, President Trump halted all proceedings against Schwartz through a general pardon.
The Supreme Court has defined testimonial communications are those that, “explicitly or implicitly, relate a factual assertion or disclose information” (Doe v. United States, 487 U.S. 201 (1988)). The Court has opined that whether a communication is testimonial often “depends on the facts and circumstances of a particular case” (Fisher v. United States, 425 U.S. 391 (1976)). Resolving Schwartz’s claim, the appellate court began with the observation that “generally, the use of an individual’s physical traits by police is not considered testimonial. For example, the Fifth Amendment does not protect against the involuntary furnishing of a blood sample, submitting to fingerprinting, providing a handwriting exemplar, providing a voice exemplar, standing in a police lineup, or donning particular clothing.”
The appellate court distinguished those physical acts from unlocking a phone and communicating, “I know how to open the phone,” “I have control over and access to this phone,” and “the print of this specific finger is the password to this phone.” It held: “If Schwartz had instead been compelled to disclose whether he could open the phone, and made to say yes or to verbally disclose the password, those answers unquestionably would be testimonial communications. The compelled opening of the cellphone that occurred here is no different.” The court concluded Schwartz’s response disclosed his control over the phone, his knowledge of how to access it, and the existence, authenticity and ownership of documents within it.
Not all courts agreed with the appellate court in this case. For example, the Minnesota Supreme Court held providing a compelled fingerprint to unlock a mobile phone was not testimonial (State v. Diamond, 905 N.W.2d 870, 875 (Minn.), cert. denied, 138 S. Ct. 2003 (2018)). See also United States v. Smith, 706 F. Supp. 3d 404 (S.D.N.Y. 2023), United States v. Eldarir, 681 F. Supp. 3d 43 (E.D.N.Y. 2023).
The wisest course is to consult with a prosecutor in your jurisdiction before compelling a suspect to open a phone or other device, whether by a biometric identifier or a passcode.
Note that Brown, Maly and Schwartz were subsequently pardoned by President Trump for several crimes, including using force against officers in the tunnel and spraying pepper spray into officers’ faces. In a joint statement, the International Association of Chiefs of Police (IACP) and the Fraternal Order of Police (FOP) condemned the pardons, saying in part, “When perpetrators of crimes, especially serious crimes, are not held fully accountable, it sends a dangerous message that the consequences for attacking law enforcement are not severe, potentially emboldening others to commit similar acts of violence.”
