State v. Diamond, A15-2075

• Decision Date: 17 January 2018
• Docket Number: A15-2075
• Citation: 905 N.W.2d 870
• Parties: STATE of Minnesota, Respondent, v. Matthew Vaughn DIAMOND, Appellant.
• Court: Minnesota Supreme Court

905 N.W.2d 870

STATE of Minnesota, Respondent,

v.Matthew Vaughn DIAMOND, Appellant.

A15-2075

Supreme Court of Minnesota.

Filed: January 17, 2018

Lori Swanson, Attorney General, Saint Paul, Minnesota; and Mark Metz, Carver County Attorney, Peter A.C. Ivy, Chief Deputy County Attorney, Chaska, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant State Public Defender, Office of the Appellate Public Defender, Saint Paul, Minnesota, for appellant.

Cort C. Holten, Jeffrey D. Bores, Gary K. Luloff, Chestnut Cambronne PA, Minneapolis, Minnesota, for amicus curiae Minnesota Police and Peace Officers Association Legal Defense Fund.

OPINION

CHUTICH, Justice.

This case presents an issue of first impression: whether the Fifth Amendment privilege against self-incrimination protects a person from being ordered to provide a fingerprint to unlock a seized cellphone. Neither the Supreme Court of the United States nor any state supreme court has addressed this issue.

The police lawfully seized a cellphone from appellant Matthew Diamond, a burglary suspect, and attempted to execute a valid warrant to search the cellphone. The cellphone's fingerprint-scanner security lock, however, prevented the search, and Diamond refused to unlock the cellphone with his fingerprint, asserting his Fifth Amendment privilege against self-incrimination.

The district court found no Fifth Amendment violation and ordered Diamond to provide his fingerprint to unlock the cellphone so that the police could search its contents. After the court of appeals affirmed, we granted Diamond's petition for review. Because the compelled act here—providing a fingerprint—elicited only physical evidence from Diamond's body and did not reveal the contents of his mind, no violation of the Fifth Amendment privilege occurred. Accordingly, we affirm.

FACTS

A homeowner in Chaska returned home to find that someone had kicked open her attached garage's side-entry door, entered her home, and taken jewelry, electronics, and a safe. When police officers arrived to investigate the burglary, they discovered two key pieces of evidence: shoe tread prints on the side-entry door, and, on the driveway, an envelope with the name "S.W." written on it. A Chaska investigator determined that S.W. had sold jewelry to a pawnshop on the same day as the burglary, and the investigator obtained the license plate number of a car registered in S.W.'s name. Officers then located and stopped S.W.'s car; Diamond was driving the car, and S.W. was a passenger. Police officers arrested Diamond on outstanding warrants and took him to jail, where jail personnel collected and stored his shoes and a Samsung Galaxy 5 cellphone that he was carrying when arrested.

Police officers obtained and executed warrants to seize Diamond's shoes and cellphone. In addition, they obtained a warrant to search the contents of the cellphone. But they could not search its contents because the cellphone required a fingerprint to unlock it.¹ The State then moved to compel Diamond to unlock the seized cellphone with his fingerprint. Diamond objected, asserting his Fifth Amendment privilege against self-incrimination.

The district court concluded that compelling Diamond's fingerprint would not violate his Fifth Amendment privilege because "[c]ompelling the production of [Diamond's] fingerprint or thumbprint would not call upon the use of [his] mind. It is more akin to providing a key to a lockbox." Accordingly, it ordered Diamond to "provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone."

Diamond continued to object to providing the necessary fingerprint for unlocking the phone. Nevertheless, he finally unlocked the cellphone with his fingerprint in court after being held in civil contempt and warned of the possibility and consequences of criminal contempt. Police officers used forensic analysis software to search and to extract the cellphone's data, including call records and messages sent and received from the cellphone. The data showed frequent communication between S.W. and Diamond on the day of the burglary.

During the jury trial, the district court admitted the messages and call logs from the search of the cellphone, but to avoid Fifth Amendment concerns, it prohibited the parties from introducing evidence that Diamond had unlocked the phone with his fingerprint. The court also admitted inculpatory evidence unrelated to the contents of the cellphone, which showed that Diamondhad committed the burglary. This evidence included an analysis of Diamond's shoes, which matched the shoeprints found at the scene of the crime; cellphone tower records that placed him in the area of the burglary at the relevant time; pawnshop records; and testimony from S.W. The jury found Diamond guilty of second-degree burglary, Minn. Stat. § 609.582, subd. 2(a)(1) (2016), and other offenses.

The court of appeals affirmed, concluding that providing a fingerprint was not privileged under the Fifth Amendment because it was "no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing." State v. Diamond , 890 N.W.2d 143, 151 (Minn. App. 2017).

We granted Diamond's petition for review.

ANALYSIS

The question this case poses arises under the Fifth Amendment to the United States Constitution. We review this constitutional question de novo.² See State v. Borg , 806 N.W.2d 535, 541 (Minn. 2011) (reviewing de novo whether the Fifth Amendment privilege prohibits eliciting certain testimony during the State's case in chief).

The Fifth Amendment, applicable to the states through the Fourteenth Amendment, Malloy v. Hogan , 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), provides that "no person ... shall be compelled in any criminal case to be a witness against himself," U.S. Const. amend. V ; see also Minn. Const. art. I, § 7.³ The "constitutional foundation underlying the privilege is the respect a government—state or federal—must accord to the dignity and integrity of its citizens." Schmerber v. California , 384 U.S. 757, 762, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). To maintain a "fair state-individual balance," the privilege ensures that the government "shoulder[s] the entire load" in building a criminal case. Miranda v. Arizona , 384 U.S. 436, 460, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). "[O]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from [the defendant's] own mouth." Id.

The privilege against self-incrimination bars the state from (1) compelling a defendant (2) to make a testimonial communication to the state (3) that is incriminating. See Fisher v. United States , 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Because we conclude that the act of providing a fingerprint to the police to unlock a cellphone is not a testimonial communication, we need not consider the other two requirements.

The Fifth Amendment bars a state from compelling oral and physical testimonial communications from a defendant. Schmerber , 384 U.S. at 763–64, 86 S.Ct. 1826 ("It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers."). A physical act is testimonial when the act is a communication that "itself, explicitly or implicitly, relate[s] a factual assertion or disclose[s] information." Doe v. United States (Doe II) , 487 U.S. 201, 209–10, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988). For example, complying with a subpoena to produce documents "may implicitly communicate ‘statements of fact’ " because complying with a court order may communicate the existence of evidence, the possession or control of evidence, or authenticate evidence.⁴ United States v. Hubbell , 530 U.S. 27, 36, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) (subpoena for documents); Doe II , 487 U.S. at 203–04, 108 S.Ct. 2341 (order compelling a signature to access bank record); State v. Alexander , 281 N.W.2d 349, 352 (Minn. 1979) (order to produce films).

But an act is not testimonial when the act provides "real or physical evidence" that is "used solely to measure ... physical properties," United States v. Dionisio , 410 U.S. 1, 7, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), or to "exhibit ... physical characteristics," United States v. Wade , 388 U.S. 218, 222, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The government can compel a defendant to act when the act presents the "body as evidence when it may be material." Schmerber , 384 U.S. at 763, 86 S.Ct. 1826 (quoting Holt v. United States , 218 U.S. 245, 252–53, 31 S.Ct. 2, 54 L.Ed. 1021 (1910) ). In other words, the government may compel a defendant to "exhibit himself" and present his "features" so that the police or a jury may "compare his features" with other evidence of the defendant's guilt. Holt , 218 U.S. at 253, 31 S.Ct. 2 ; State v. Williams , 307 Minn. 191, 239 N.W.2d 222, 225–26 (1976) (holding that an order to "put on a hat found at the scene of the crime" was not testimonial because the police compelled the physical act for "the sole purpose of attempting to prove [the defendant's] ownership of [an] incriminating article").

The Supreme Court of the United States has therefore drawn a distinction between the testimonial act of producing documents as evidence and the nontestimonial act of producing the body as evidence. The Court first held that the compelled exhibition of the body's characteristics was not testimonial under the Fifth Amendment in Holt , 218 U.S. at 252, 31 S.Ct. 2. The Court explained that it would be an "extravagant extension of the 5th Amendment" to prevent a jury from hearing a witness...