Thumb unlocks: what the Ninth and D.C. Circuits held

This page describes what the federal courts of appeals named below held about compelled phone unlocks under the Fifth Amendment, which says no person shall “be compelled in any criminal case to be a witness against himself.” Those courts’ holdings below concern a thumb used to unlock a phone. Rulings of state supreme courts on compelled passcodes are on Compelled passcodes: state supreme court rulings, by state.

In United States v. Payne (9th Cir., decided Apr. 17, 2024), the court held “that the compelled use of Payne’s thumb to unlock his phone (which he had already identified for the officers) required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking,” and that “the use of Payne’s thumb to unlock his phone was not a testimonial act and the Fifth Amendment does not apply.”

The court then limited its own ruling: “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.” It added that “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,” and said of such possibilities: “We mention these possibilities not to opine on the right result”.

The opinion’s text describes what the officer did this way: “Officer Coddington forcibly grabbed Payne’s thumb and used it to unlock the phone via a built-in biometric unlocking feature.” A footnote in the same opinion qualifies that account; it is quoted under “What Brown says about Payne” below.

The Supreme Court’s docket for Payne v. United States, No. 24-5871, records “Petition DENIED” on Nov. 25, 2024. That is a docket entry; this page does not describe it as more than that.

In United States v. Brown (D.C. Cir., decided Jan. 17, 2025), the court described the unlock this way: “the record reveals that an FBI agent ordered Schwartz to open the cellphone, and Schwartz complied by placing his thumb on the cellphone.” Its holding: “we hold that, in compelling Schwartz to unlock his cellphone, law enforcement violated the Fifth Amendment.”

A footnote in Brown says: “This holding is consistent with the Ninth Circuit’s decision in Payne.” It explains: “In that case, instead of instructing the defendant to open his phone, as the FBI instructed Schwartz to do,” the police “forcibly grabbed Payne’s thumb and used it to unlock the phone.” It then quotes Payne’s statement that “the outcome on the testimonial prong may have been different” had the officer “required Payne to independently select the finger that he placed on the phone,” and adds: “That is this case.”

Payne’s opinion says Officer Coddington “forcibly grabbed Payne’s thumb and used it to unlock the phone”; but a footnote in Payne says that whether he did so or Payne “reluctantly unlocked the cell phone using his thumb print” “was disputed before the district court,” and that for the purposes of the appeal the government “accepted the defendant’s version of the facts, i.e., ‘that defendant’s thumbprint was compelled.’” In Brown, an FBI agent ordered Schwartz to open the cellphone, and he did so by placing his thumb on it. Payne itself says it mentioned its finger-selection possibility “not to opine on the right result”. This site does not describe the two decisions as conflicting: the later court says its holding is consistent with Payne.

The holdings quoted above concern a thumb. The state supreme court rulings below concern a passcode, and each is a ruling of one state’s court about the act that was before it. Some are quoted here; the rest are on Compelled passcodes: state supreme court rulings, by state.

In Utah, in State v. Valdez (2023), the Supreme Court of Utah wrote: “We hold that verbally providing a cell phone passcode to law enforcement is testimonial for Fifth Amendment purposes.” It described the act before it this way: “Here, law enforcement asked Valdez to verbally provide his passcode.”

In New Jersey, in State v. Andrews (2020), the Supreme Court of New Jersey wrote that the appeal presented the question “whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination,” and then wrote: “We conclude that it does not and affirm the Appellate Division’s judgment.”

Brown said that if Schwartz had instead been compelled “to verbally disclose the password, those answers unquestionably would be testimonial communications” — a statement about a situation that case did not involve.

These opinions do not say which unlock method to choose, and this page does not either. What the vendors say is narrower and purely technical: Apple’s own documentation describes the key for its Complete Protection data class as discarded shortly after the user locks the device, with that data inaccessible “until the user enters the passcode again or unlocks (logs in to) the device using Optic ID , Face ID , or Touch ID”. GrapheneOS’s features page says of one feature that it “allows users to make use of diceware passwords if they don't want to depend on the security of the secure element”. Neither vendor statement is about the Fifth Amendment; they describe what the device does, not what a court will hold. For the device-side steps, see Passcode and software updates.