UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-50262

Plaintiff-Appellee, D.C. No. 5:22-cr- 00054-PA-1 v. JEREMY TRAVIS PAYNE, AKA OPINION Jeramey Travis Payne,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted February 14, 2024 Pasadena, California

Filed April 17, 2024

Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and Robert S. Lasnik, * District Judge.

Opinion by Judge Tallman * The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 2 USA V. PAYNE

SUMMARY **

Criminal Law

The panel affirmed the district court’s denial of Jeremy Travis Payne’s motion to suppress evidence. Payne, a California parolee, was arrested and charged with possession with intent to distribute fentanyl, fluorofentanyl, and cocaine. After the district court denied his motion to suppress evidence of these crimes that California Highway Patrol officers had recovered from a house in Palm Desert, California, he entered a conditional guilty plea to possession of fentanyl with intent to distribute. The panel held that the CHP officers did not violate the Fourth Amendment in their search, during a traffic stop, of Payne’s cell phone, made possible by the officers’ forced use of his thumb to unlock the device. The panel held that, despite the language of a special search condition of Payne’s parole, requiring him to surrender any electronic device and provide a pass key or code, but not requiring him to provide a biometric identifier to unlock the device, the search was authorized under a general search condition, mandated by California law, allowing the suspicionless search of any property under Payne’s control. The panel concluded that any ambiguity created by the special condition, when factored into the totality of the circumstances, did not increase Payne’s expectation of privacy in his cell phone to render the search unreasonable under the Fourth Amendment. The panel further held that the search of the ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. PAYNE 3

cell phone was not unreasonable on a theory that it violated California’s prohibition against arbitrary, capricious, or harassing searches. In addition, the search of Payne’s photos, videos, and maps on his cell phone did not run afoul of Riley v. California, which held that officers cannot search the contents of an individual’s cell phone incident to their arrest, because Riley does not apply to parole searches of a cell phone. The panel held that the CHP officers did not violate Payne’s Fifth Amendment privilege against self- incrimination when they compelled him to unlock his cell phone using his fingerprint. Payne established that the communication at issue was compelled and incriminating. The panel held, however, that the compelled use of a biometric to unlock an electronic device was not testimonial because it required no cognitive exertion, placing it in the same category as a blood draw or a fingerprint taken at booking, and merely provided the CHP with access to a source of potential information. Accordingly, the Fifth Amendment did not apply. The panel held that there was sufficient probable cause to support issuance of a search warrant without regard to observations CHP officers made during a challenged protect