[00:00:17] Speaker 05:
the federal public defender here on behalf of Jeremy Payne.

[00:00:21] Speaker 05:
We respectfully ask the court to reverse the district court

[00:00:56] Speaker 05:
of the parole agreement, which, as you know, is at ER 50.

[00:01:36] Speaker 04:
be searchable and get the passcode but what if he didn't

[00:02:11] Speaker 05:
forcibly opening his phone and searching the phone at that point was also a Fourth Amendment violation of searching his phone outside of the scope of the parole agreement.

[00:02:21] Speaker 05:
I'm sorry, Your Honors.

[00:02:22] Speaker 05:
And so, if you look, for example, at this quiz...

[00:02:41] Speaker 05:
72 of Australia.

[00:03:36] Speaker 05:
not held against Mr. Payne but my understanding is that parole conditions are relatively standard and so if they don't allow for biometrics then police officers either know or do not know what they allow and I have not seen and the government has not provided any California case that has allowed for forcible use of biometrics to open

[00:04:44] Speaker 03:
But as you say, there's nothing really in the record that illuminates it.

[00:04:47] Speaker 05:
Well, and the government hasn't provided any either cases or conditions that show that forcible use of biometrics is allowed anywhere, so therefore the government has not met their burden to show that this warrantless search should be allowed.

[00:05:30] Speaker 05:
No one should train their officers that it is allowed.

[00:05:59] Speaker 05:
So again, no police group in California, state, city, whatever, should be training their officers to use forcible use of biometrics if no one allows it.

[00:06:09] Speaker 05:
And I'm happy to go there, Your Honor, but I would just say under the Fourth Amendment question, if the government can, and I have not found any case allowing forcible biometrics as opposed to pass code.

[00:06:19] Speaker 05:
There might be a case after today.

[00:06:21] Speaker 05:
I understand that, Your Honor.

[00:06:23] Speaker 05:
But to the good faith question, if it hasn't happened before, why would a police officer

[00:06:54] Speaker 04:
someone was gonna look at it, then it suddenly wasn't his phone.

[00:06:59] Speaker 04:
It suddenly didn't have a passcode and all of that.

[00:07:03] Speaker 04:
And when you're on parole, and I'm sure that you know the law very well, I'm sure that it's akin to being parolees have less rights than the average person.

[00:07:13] Speaker 04:
And so I think we have someone sitting here that says Riley isn't the same for parolees as it is for the average bear.

[00:07:23] Speaker 04:
as it were.

[00:07:23] Speaker 04:
So why wouldn't it be reasonable to think like that if you can search someone's phone that we're not looking

[00:07:52] Speaker 04:
I mean parole is a continuation of being in prison.

[00:08:36] Speaker 05:
I would not have raised the Fourth Amendment issue.

[00:09:23] Speaker 03:
We know that it is permissible, as long as it's not testimonial, to use fingerprints, faces.

[00:09:33] Speaker 03:
You can do a field show up.

[00:09:35] Speaker 03:
You can make them stand in a lineup.

[00:09:37] Speaker 03:
You can order them to repeat the words of the bank robber.

[00:09:40] Speaker 03:
So where's the compelled testimonial evidence here?

[00:09:52] Speaker 05:
the court is aware the definition of testimonial from Doe versus United States the Supreme Court case is in order to be testimonial and accused communication an accused communication must itself explicitly or implicitly relate a factual assertion or disclose information and in Hubble the court held that by producing documents this is also a quote the witness admits papers

[00:10:33] Speaker 03:
as Lassie pointed out, he basically identified, that's my phone.

[00:10:39] Speaker ?:
And it's the green phone in the driver's door pocket.

[00:10:43] Speaker 03:
And lo and behold, the officer retrieves a green cell phone.

[00:10:46] Speaker 05:
So we know it belongs to him at this point.

[00:10:49] Speaker 05:
So leaving aside that there was later a contrary assertion by Mr. Payne that Judge Callahan alluded to, by the use of the biometrics, leaving aside the physical item that is the phone, by using your biometrics

[00:11:12] Speaker 05:
2020 pointed out, by opening the phone with your biometrics, you are doing exactly what Hubble did in Hubble.

[00:11:21] Speaker 05:
You are authenticating the contents.

[00:11:23] Speaker 05:
You are admitting actual

[00:12:11] Speaker 05:
and like hypothetically pictures of fentanyl and pictures of cash and all kinds of ill-advised information, you're authenticating to, for example, a friendly police officer that those are yours, that you have previously possessed the digital images or the medical records or the bank records.

[00:12:30] Speaker 03:
It doesn't flow from the simple putting of the finger on the screen to unlock the phone.

[00:12:36] Speaker 05:
It does, Your Honor, and it's exactly the conclusion that the police drew in this case.

[00:12:42] Speaker 03:
to the south.

[00:13:24] Speaker 05:
about the question here is whether the act of biometric unlocking is a fifth amendment testimonial communication because an ink blot fingerprint that you take for example when you become a federal employee doesn't tell you anything about the piece of paper whereas biometrically opening the phone gives you a wealth of

[00:14:01] Speaker 05:
communication, it relays other information, not just the ink on the piece of paper.

[00:14:06] Speaker 03:
In a DUI case, it identifies the percentage of alcohol in the blood.

[00:14:13] Speaker 03:
That is a consequence of the compelled blood draw, which the Supreme Court has said is lawful.

[00:14:22] Speaker 05:
So Your Honor, the blood draw, I would submit, gives you information about the blood.

[00:14:33] Speaker 05:
Well, that's incriminating, Your Honor.

[00:14:34] Speaker 05:
That's a different element.

[00:14:35] Speaker 05:
The elements are compelled, incriminating, and testimonial.

[00:14:38] Speaker 05:
If we're just talking about testimonial, it doesn't give you any other information about... It's not a... The definition in Dela that I don't want to read again, because I've well exceeded my time, but it's information about the act of production of your relation to other information in the world, in the sense of Hubble, which is the granddaddy case of all of

[00:15:23] Speaker 05:
they found on the phone.

[00:15:25] Speaker 05:
These pictures of Fentanyl are mine.

[00:15:27] Speaker 05:
This is my voice talking about this house on El Cortez Way.

[00:15:30] Speaker 05:
It's everything else that the police inferred about his relationship to the data on the phone.

[00:15:35] Speaker 05:
That is all a use of my client's mind.

[00:15:38] Speaker 03:
I've had a hard time linking the physical act with the subsequent incriminating evidence that's discovered.

[00:15:44] Speaker 03:
I understand your argument.

[00:15:46] Speaker 03:
I just have a hard time getting over the causal connection.

[00:15:58] Speaker 05:
this is relevant, all the Ninth Circuit District Courts have explained it in a way very similar to Hubble, and then the Chicago and D.C.

[00:16:04] Speaker 05:
District Courts have taken the, it's just a physical act of position, but we do think that because it's exactly the information- I suspect at some point the Supreme Court will probably weigh in on this.

[00:16:14] Speaker 05:
I don't think so, but you will be the first court of appeals that I'm aware of to

[00:16:27] Speaker 02:
He was very fortunate.

[00:17:02] Speaker 04:
I appreciate your honor.

[00:17:03] Speaker 04:
Thank you.

[00:17:10] Speaker 04:
Your turn.

[00:17:11] Speaker 04:
Are you anxious?

[00:17:11] Speaker 04:
Good morning.

[00:17:12] Speaker 04:
Good morning.

[00:17:17] Speaker 02:
You might just say, I agree with everything up here and sit down.

[00:17:21] Speaker 01:
Yes, your honor.

[00:17:23] Speaker 01:
Tell us who you are and then you can proceed.

[00:17:26] Speaker 01:
Good morning.

[00:17:26] Speaker 01:
May it please the court, Hao Xiao Han Cai on behalf of the United States.

[00:17:33] Speaker 01:
The district court got the decision correct in all respects.

[00:17:37] Speaker 01:
The search of defendant's phone comported with both the Fourth and the Fifth Amendments, and the resulting search of El Cortez Way was independently supported by three bases.

[00:17:47] Speaker 01:
I'll start where my colleague started, which is with the Fourth Amendment challenge to the search of defendant's cell phone.

[00:18:01] Speaker 01:
violated the only limitation on such suspicionless searches for parolees, which is that it's not arbitrary, capricious, or harassing.

[00:18:11] Speaker 01:
So I'll move on to the new point that defendant has made for the first time in his reply, in which the court was extensively discussing this morning.

[00:18:22] Speaker 01:
And that is the challenge the defendant has raised

[00:18:25] Speaker 01:
that using the defendant's finger in order to unlock his phone exceeds the scope of the parole conditions.

[00:18:32] Speaker 01:
Now, several responses to this.

[00:18:34] Speaker 01:
First and foremost, it isn't laid out in the parole condition.

[00:18:39] Speaker 04:
It basically, it does, there is an interpretation you could make that says, yeah, you have to give your password or, you know, you have to, but if you don't, you can get arrested.

[00:18:49] Speaker ?:
So the argument would be then just arrest him.

[00:18:53] Speaker 01:
Right.

[00:18:53] Speaker ?:
And then get a search warrant.

[00:18:56] Speaker 01:
So I would disagree with the framing of the question and first I would note that this this new challenge never appeared in the district court was not in the opening brief either and so it's doubly waived but on the merits your honor

[00:19:26] Speaker 01:
a search for a phone that the officers had the authority to seize.

[00:19:32] Speaker 01:
The challenge is not exclusion or suppression.

[00:19:34] Speaker 01:
It's a 1983 motion.

[00:19:36] Speaker 01:
That's not what's at issue here.

[00:19:38] Speaker 01:
That's not a basis for deciding the Fourth Amendment issue.

[00:19:42] Speaker 01:
But more critically to your question, Your Honor, the search condition that's relevant and which this court addressed in Johnson allowing for the search of the phone is the general mandatory

[00:19:57] Speaker 01:
code section 3067.

[00:19:59] Speaker 01:
That permits warrantless seizures and searches of the defendant's person, so his finger, and any property under his control.

[00:20:09] Speaker 01:
In Johnson, the court used that provision to uphold the cell phone search.

[00:20:13] Speaker 01:
Now, the fact that the defendant is also subject to a further special condition, that's on ER-57, which additionally imposes upon him the obligation to cooperate with law enforcement and provide a passcode or unlock his phone, does not vitiate or diminish in any way the much

[00:20:49] Speaker 04:
I think initially it started out that maybe he just did it on his own because there wasn't a body cam on them.

[00:21:00] Speaker 04:
And then later it said, well, we don't want to kind of keep putting your finger on here.

[00:21:03] Speaker 04:
And so then you've conceded the facts that we're dealing with are the officers put his finger on the phone, right?

[00:21:11] Speaker 01:
We've not conceded that fact, but because the district court didn't make an explicit finding, we've accepted for the purposes of appeal the defendant's version of the facts.

[00:21:21] Speaker 01:
in order to unlock the phone.

[00:21:23] Speaker 01:
And certainly the district court understood, I think addressing Judge Tallman's earlier question, that the general mandatory provision was the one that authorized the search of the phone.

[00:21:37] Speaker 01:
And you can find that on the record at page 114.

[00:21:40] Speaker 01:
The district court wasn't just operating under the idea

[00:21:45] Speaker 01:
also applied.

[00:21:47] Speaker 01:
Now the government has also directed the court to the instructive discussion that can be found in People versus Del Rio, which is a Court of Appeals decision, where it sort of dealt with this question, whether a specific condition for an electronic search impacts the

[00:22:08] Speaker 01:
more broad authority under the general mandatory condition for any property under the parolees control.

[00:22:17] Speaker 01:
And the court said, no, it doesn't impact that provision.

[00:22:21] Speaker 01:
It doesn't limit the search authorization that the officers have.

[00:22:26] Speaker 01:
What it does do is provide another penalty

[00:22:31] Speaker 01:
It could be an arrest if the defendant refuses to provide a passcode.

[00:22:35] Speaker 01:
So inherent in that mandatory provision, authorize.

[00:22:41] Speaker 01:
and his phone is the authority to conduct the biometric unlock.

[00:22:47] Speaker 01:
Now just because that general provision doesn't encompass or anticipate every permutation, right?

[00:22:54] Speaker 01:
It doesn't say you can unlock the defendant's door if you want to search a house.

[00:22:58] Speaker 01:
It doesn't say you can open a box in his car.

[00:23:01] Speaker 01:
That's not necessary because that is the

[00:23:05] Speaker 01:
defendant has already lost his right to privacy in those things that are covered by that condition.

[00:23:12] Speaker 03:
So I believe your question is now pivoting towards the Fifth Amendment question, is that right?

[00:23:28] Speaker 01:
Sure.

[00:23:29] Speaker 01:
And we'll address that.

[00:23:33] Speaker 03:
So I think it is a distinction, but it makes no difference in this case, exactly because.

[00:24:00] Speaker 03:
he refuses to cooperate, either with the search of the phone or with just the general suspicionless search of his person or property, they can arrest him and refer him to the parole officer for further, you know, for violating his parole.

[00:24:16] Speaker 01:
Right, I think that's an additional penalty that can be imposed, but it doesn't limit what the officers encountered in this case, which is not a passcode anymore.

[00:24:25] Speaker 03:
But you would agree that if it were a passcode, the only option the officer would have at that point would be to simply take him into custody for violating the parole condition.

[00:24:36] Speaker 03:
You couldn't beat the passcode.

[00:24:38] Speaker 03:
Exactly, yeah.

[00:24:38] Speaker 01:
Yes, that would be an unreasonable thing for the officers to have done.

[00:24:44] Speaker 01:
I would disagree on that point.

[00:24:49] Speaker 01:
I do not mean to suggest that certainly that would be all matters of violations, but I'll address the passcode issues shortly within the Fifth Amendment context.

[00:24:59] Speaker 01:
But yes, I think practically in that case, which does not fit the facts before us, the officers

[00:25:08] Speaker 01:
What we have is, if we accept the defendant's facts, the officers used and took defendant's thumb and pressed it to a phone.

[00:25:17] Speaker 01:
No violence, no beating, very reasonable.

[00:25:20] Speaker 01:
So now, addressing the Fifth Amendment question.

[00:25:23] Speaker 03:
So, ultimately, your argument under the Fourth Amendment is that this is still reasonable within the Fourth Amendment prohibition of searches without warrants?

[00:25:36] Speaker 01:
Yes, your honor.

[00:25:37] Speaker 01:
Both that it is expressly contemplated by the general search condition, which would allow searches of his phone using his finger.

[00:25:45] Speaker 01:
And it was a reasonable manner of executing that search.

[00:25:50] Speaker 01:
So turning to the Fifth Amendment, the district court also got that right because the fingerprint to unlock a phone, that's not testimonial.

[00:25:59] Speaker 01:
And- You're saying it's like a swerver thing?

[00:26:01] Speaker 01:
I think it's a smurber thing, but more importantly, it's a Hubble and Doe thing, right?

[00:26:06] Speaker 01:
Those two cases by the Supreme Court drew the very critical distinction that what makes something testimonial is not if it's incriminating, a lot of things are, not if it's compelled, a lot of things are.

[00:26:20] Speaker 01:
What makes it testimonial is that it

[00:26:25] Speaker 01:
in getting the defendant to admit something and communicate an assertion of a fact in that compelled act.

[00:26:33] Speaker 04:
Well, the defendant's mind definitely came into play here because when he realized they were going to look at it, he knew what was there.

[00:26:39] Speaker 04:
And so he's thinking, I don't want them to look at it.

[00:26:41] Speaker 04:
No, it's not my phone.

[00:26:43] Speaker 01:
Sure.

[00:26:44] Speaker 01:
I think there was some mental gymnastics that were done on the defendant's part in this case.

[00:26:51] Speaker 01:
But at the critical moment when officers took his

[00:26:57] Speaker 01:
was nothing mental that defendant was communicating at that point and in Doe and Hubble the Supreme Court adopted the distinction of

[00:27:14] Speaker 01:
not testimonial.

[00:27:15] Speaker 01:
What is testimonial may be the forced compulsion of a combination to a wall safe.

[00:27:22] Speaker 01:
And the only difference between those two examples espoused by the court is that one requires a foray through the defendant's mind and a mental compulsion.

[00:27:33] Speaker 01:
From that, and these two cases were active production cases, from that there may be inferences that implicate the use of defendant's mind, which is certainly not what is here and the crux of the majority, the crux of the cases

[00:27:50] Speaker 01:
in this circuit in the district court split have found that biometric unlock does not violate the Fifth Amendment and the district court got that right.

[00:28:02] Speaker 02:
What if it was activated by your eyes and the defendant just shut his eyes and refused to open them?

[00:28:11] Speaker 02:
Could the police have somehow forced his eye open to open the phone?

[00:28:18] Speaker 01:
I think that's a very fact-dependent question, but I don't believe that any unreasonable uses of force would not be permitted even under this analysis.

[00:28:31] Speaker 01:
And I think the cases of

[00:28:43] Speaker 01:
the compiled act would be permissible, something that's wildly impermissible would obviously not fly.

[00:28:50] Speaker 04:
Can I take you to, if it's okay with my colleagues, they could come back, but I'm curious about when they got to the house.

[00:28:59] Speaker 04:
Okay, let's just for all purposes say we get to the house.

[00:29:19] Speaker 04:
And also as part of the searches, they get keys too.

[00:29:25] Speaker 04:
So when they get to the house, one of the keys opens the front door.

[00:29:43] Speaker 04:
was they obtained a search warrant.

[00:29:47] Speaker 04:
I'm just wondering if everything is okay up to this point and he's on parole and it says you can search your property.

[00:29:55] Speaker 04:
What does it say?

[00:29:55] Speaker 04:
It says you can search your property and yours and your property or your residence.

[00:30:05] Speaker 04:
And everyone seems to talk about it's not his home.

[00:30:14] Speaker 04:
methodically assume that.

[00:30:17] Speaker 04:
Why don't they have probable cause to search that residence?

[00:30:23] Speaker 04:
Because I don't have an office at Judge Tolman's house.

[00:30:27] Speaker 04:
He says it's his office, and in your office, you have your property, and they see a picture, and the officers get there, and they actually know that the keys they have, he's got keys to the Beamer that's in the driveway.

[00:30:55] Speaker 01:
like Granbury, but the Ninth Circuit has basically indicated even though the house could have both been property under his control or his residence, the more restrictive search applies.

[00:31:10] Speaker 01:
So if it is a residence, the government, even though they can reasonably indicate that it is property under his control, would not be able to make use of that general provision.

[00:31:27] Speaker 03:
officers had in Granbury.

[00:31:29] Speaker 01:
Certainly, and that's a position we took in our papers, but I want to help.

[00:31:33] Speaker 03:
But to answer Judge Callahan's question, didn't they have sufficient probable cause at that point without regard to what they saw in the House to get a search warrant?

[00:31:44] Speaker 03:
Exactly, and the District Court upheld the search warrant on that basis.

[00:31:48] Speaker 03:
They couldn't excise what they saw during the protective sweep and there was still an

[00:31:53] Speaker 01:
under Segura, if any of the, if the two facts that were gleaned from the protective sweep were excised and purged from the search warrant, all of what Judge Callahan... Those are all backup arguments.

[00:32:07] Speaker 04:
I understand that.

[00:32:08] Speaker 04:
And we can vote to all of those.

[00:32:09] Speaker 04:
But I'm just wondering, does an officer, with all of that information, then, I don't know why it wouldn't be, I'm just wondering, hypothetically,

[00:32:29] Speaker 04:
Were these officers in wrecked vehicles and in uniform?

[00:32:32] Speaker 04:
I believe so, Your Honor.

[00:32:33] Speaker 04:
Is that in the record?

[00:32:34] Speaker 04:
Because they pulled them over for tinted windows.

[00:32:36] Speaker 01:
Yes, they were on patrol and they were CHP officers.

[00:32:39] Speaker 03:
Oh, the way I read the record, the officers were part of a special task force composed of local sheriff's deputies and city police officers targeting drug trafficking and gangs.

[00:33:18] Speaker 01:
Yes, I believe in exhibit C to the defense's opening brief, in that video you can see that the defendant was transported in a marked vehicle and the officers were wearing uniforms.

[00:33:31] Speaker 01:
I believe that's correct.

[00:33:32] Speaker 01:
Well, at least some of the officers were.

[00:33:33] Speaker 01:
At least some of the officers were, correct.

[00:34:07] Speaker 05:
that there was more in this case than there was in Granbury under Granbury and Howard, this court's decision, having a key to a residence is not sufficient probable cause to search the house under a parole condition.

[00:34:19] Speaker 03:
Well, they had the video that identified the house.

[00:34:22] Speaker 03:
They had the pin drop.

[00:34:24] Speaker 03:
They had his admission that this is my office.

[00:34:38] Speaker 03:
that he describes it as his office, and that the BMW parked in front is evidence of, I forget what the phrase was, what the good life.

[00:34:48] Speaker 04:
So, Your Honor, I would note that.

[00:34:49] Speaker 04:
And he has a key to the BMW, too.

[00:34:51] Speaker 04:
Yeah.

[00:34:51] Speaker 04:
So, I always park my BMW in someone else's office.

[00:34:54] Speaker 05:
There's no evidence of that.

[00:35:56] Speaker 05:
for the purpose of the parole

[00:36:43] Speaker 05:
pages 37, 98, 113, and I think 28 of the ER, and so we would say the Fourth Amendment issue is well preserved and we would ask this Court to reach it.

[00:37:12] Speaker 04:
the point, but also were conversational with the court.