UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JEREMY TRAVIS PAYNE, AKA

Jeramey Travis Payne,

Defendant-Appellant.

No. 22-50262

D.C. No. 5:22-cr-

00054-PA-1

OPINION

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

protective sweep of the Palm Desert House.

4 USA V. PAYNE

COUNSEL

Caroline S. Platt (argued), Assistant Federal Public

Defender; Cuauhtemoc Ortega, Federal Public Defender;

Federal Public Defender’s Office, Los Angeles, for

Defendant-Appellant.

Haoxiaohan H. Cai (argued), Assistant United States

Attorney, General Crimes Section; Bram M. Alden,

Assistant United States Attorney, Chief, Criminal Appeals

Section; E. Martin Estrada, United States Attorney; United

States Department of Justice, Office of the United States

Attorney, Los Angeles, California, for Plaintiff-Appellee.

OPINION

TALLMAN, Circuit Judge:

Appellant Jeremy Travis Payne was a California parolee

when he was arrested and charged with three counts of

possession with intent to distribute fentanyl, fluorofentanyl,

and cocaine. After the district court denied Payne’s motion

to suppress evidence of these crimes recovered from a home

in Palm Desert, California, Payne entered a conditional

guilty plea to possession of fentanyl with intent to distribute

at least 40 grams in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B)(vi). On appeal, Payne challenges the district

court’s denial of his motion to suppress, arguing that

California Highway Patrol (“CHP”) officers violated his

Fourth and Fifth Amendment rights.

USA V. PAYNE 5

In November 2018, Payne was arrested for assault with

a deadly weapon on a peace officer, in violation of Cal. Penal

Code § 245(c). He was sentenced to three years

imprisonment and later released on parole. On September

23, 2020, Payne signed a one-page “Notice and Conditions

of Parole” document and a separate, three-page “Special

Conditions of Parole” document. Pursuant to Cal. Penal

Code § 3067(b)(3) and 15 Cal. Code Regs. § 2511(b)(4),

Payne’s Notice and Conditions of Parole included the

following condition (“general search condition”)

You, your residence, and any property under

your control are subject to search or seizure

by a probation officer, an agent or officer of

the California Department of Corrections and

Rehabilitation, or any other peace officer, at

any time of the day or night, with or without

a search warrant, with or without cause.

Payne’s Special Conditions of Parole included a more

detailed condition (“special search condition”) concerning

electronic devices:

You shall surrender any digital/electronic

device and provide a pass key/code to unlock

the device to any law enforcement officer for

inspection other than what is visible on the

display screen. This includes any

This general search condition is “mandated as a term of every parolee’s

release” in the State of California. People v. Delrio, 259 Cal. Rptr. 3d

301, 305 (Ct. App. 2020); see People v. Schmitz, 288 P.3d 1259, 1264–

65 (Cal. 2012).

6 USA V. PAYNE

digital/electronic device in your vicinity.

Failure to comply can result in your arrest

pending further investigation and/or

confiscation of any device pending

investigation.

On November 3, 2021, CHP officers Coddington and

Garcia—who were both assigned to the Coachella Valley

Violent Crime Gang Taskforce—were patrolling an area in

Desert Hot Springs, California. They saw a gold Nissan with

what they perceived to be unlawfully tinted front windows

and initiated a traffic stop for a suspected violation of Cal.

Veh. Code § 26708. Officer Coddington approached the

vehicle and asked the driver, Payne, to provide his driver’s

license, vehicle registration, and proof of insurance. Officer

Coddington later reported that Payne was “extremely

nervous,” “trembling as he fumbled for the documents,”

“sweating profusely,” and “stammering when he spoke.”

Payne informed the officers that he was on California parole.

After confirming Payne’s California parole status with

Riverside County Sheriff’s Dispatch, Officer Coddington

asked Payne and his female passenger to get out of the car.

Payne was handcuffed and eventually detained in the back

of a squad car.

Officers searched Payne’s person pursuant to his parole

conditions and found in his pockets $1,270 cash and a key

ring with several keys, including a key to a BMW. After

searching the vehicle, Officer Coddington asked Payne if he

had a phone. Payne responded that “his phone was in the

driver’s door panel and was green in color.” The phone was

where Payne said it would be. Officer Coddington retrieved

it and asked Payne to provide the passcode. Despite

confirming that he had a phone, and informing officers of its

USA V. PAYNE 7

location and color, Payne changed his story and began

denying ownership, stating “the phone was not his and he

did not have the password.”

At this juncture, CHP officers would have been justified

under Payne’s special search condition in either

“confiscati[ng] . . . [the] device” or “arrest[ing] Payne

pending further investigation.” Instead, Officer Coddington

forcibly grabbed Payne’s thumb and used it to unlock the

phone via a built-in biometric unlocking feature.

Once

unlocked, Officer Coddington opened the phone’s settings

and confirmed that Payne’s full name was listed in the

owner’s information section. Next, he began looking

through the device’s stored media and found two important

videos.

The first video was recorded on the phone the same day,

November 3, 2021, just three hours before the traffic stop. It

showed the inside of a room with what Officer Coddington

believed to be “a large amount of U.S. currency, several bags

of blue pills (suspected to be fentanyl), and a gold-colored

money counting machine.” An individual, who Officer

Coddington presumed was Payne, could be heard on the

video referring to the room as his “office.” The second video

was taken outside of a residence with a gray-brick wall

around the front. Again, an individual, who Officer

Coddington presumed was Payne, could be heard saying

“life is good in Palm Desert” and “I got the Beamer out

Whether Officer Coddington forcibly used Payne’s thumb to unlock the

phone or Payne “reluctantly unlocked the cell phone using his thumb

print” was disputed before the district court. For the purposes of this

appeal, however, the government—both in its answering brief and during

oral argument—accepted the defendant’s version of the facts, i.e., “that

defendant’s thumbprint was compelled.”

8 USA V. PAYNE

front,” referring to a parked BMW vehicle shown in the

video.

Finally, Officer Coddington opened the maps application

on Payne’s cell phone, which showed a pin dropped to a

parked vehicle on a street called El Cortez Way in Palm

Desert, California, about twenty-five miles away. Despite

what Officer Coddington found on the phone concerning the

parked car in Palm Desert, Payne insisted that he resided

with his mother at her home in Indio, California; Payne’s

female passenger told officers the same thing in a later

interview. Based on what CHP officers found on Payne’s

person and phone, they drove Payne to the location of the

parked car on El Cortez Way.

When the officers arrived, they saw a silver BMW

parked in front of a house. The car was registered to Payne

and the BMW key recovered from Payne’s person unlocked

it. Before obtaining a warrant, Officer Coddington walked

to the front door of what was marked Unit B and unlocked

the door with one of the keys from Payne’s keyring. Officers

entered the home and conducted what they reported as a

“security sweep” to “make sure there was no one inside the

residence who could possibly come out of the residence and

harm [the officers].” During this initial search of the home,

officers observed in plain sight several bags of blue pills they

suspected of being fentanyl and a money-counting machine,

consistent with what they had earlier observed in the first

video on Payne’s cell phone.

Officer Coddington then wrote a search warrant

application for the house on El Cortez Way. The application

listed all the information that Officer Coddington had

learned from his search of Payne’s cell phone. The

application also attested that Officer Coddington:

USA V. PAYNE 9

(1) observed a BMW outside of Payne’s residence that the

key recovered from Payne’s person unlocked; (2) confirmed

the BMW was registered to Payne; (3) accessed Unit B with

another key on Payne’s keyring; and (4) saw several bags of

blue pills (suspected to be fentanyl) and a gold money-

counting machine during the initial sweep of the residence.

Two hours later, a Riverside County Superior Court judge

authorized the search warrant.

The search of El Cortez Way under the authority of that

warrant was more thorough. Officers found several

documents, including pieces of mail, bearing Payne’s full

name. They also discovered a “white powdery substance”

throughout the home and a total of 104.3 grams of blue pills

marked “M/30.” The pills and powder were later confirmed

to be fentanyl, fluorofentanyl, and cocaine. In addition to

the drugs, officers recovered a total of $13,992 in cash, a

digital scale, the gold money-counting machine, and six cell

phones. Payne was arrested following the second search.

On February 23, 2022, a federal grand jury returned an

indictment charging Payne with: (1) possession with intent

to distribute a mixture and substance containing fentanyl in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vi);

(2) possession with intent to distribute fluorofentanyl in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); and

(3) possession with intent to distribute cocaine in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(C). Payne filed a motion to

suppress the evidence seized from the house on El Cortez

Way on April 25, 2022. He primarily argued that the

searches of his phone and the house on El Cortez Way

violated his Fourth and Fifth Amendment rights.

The district court denied Payne’s motion in an oral ruling

on May 24, 2022. The court found that the search of Payne’s

10 USA V. PAYNE

cell phone was reasonable under the Fourth Amendment

given that Payne was on parole in California and subject to

California’s standard search conditions that covered his

electronic devices. Further, the court determined that the

compelled use of Payne’s thumb to access the phone was a

nontestimonial act, placing it outside of Payne’s Fifth

Amendment privilege against self-incrimination. The court

found no separate Fourth Amendment violation for the first,

warrantless search of the house on El Cortez Way for two

reasons. First, because the search was justified under

Payne’s parole conditions and, second, because the search

warrant officers later obtained would have still been valid

after excising the information included in the warrant

application from the protective sweep of the home.

Payne was sentenced on November 7, 2022, to 144

months in prison. After the district court entered final

judgment, Payne filed a timely notice of appeal. We have

jurisdiction under 28 U.S.C. § 1291.

We begin with Payne’s Fourth Amendment challenges

to the CHP officers’ search of his cell phone. Given Payne

raises his Fourth Amendment claim in the context of a

challenge to the district court’s denial of his motion to

suppress, we review the denial of that motion de novo and

the district court’s factual findings for clear error. United

States v. Sullivan, 797 F.3d 623, 632–33 (9th Cir. 2015).

The general suspicionless search condition in Payne’s

Notice and Conditions of Parole is mandated by California

law. See Cal. Penal Code § 3067(b)(3); 15 Cal. Code Regs.

§ 2511(b)(4). The California Supreme Court held the

condition was reasonable under the Fourth Amendment, in

large part because parolees, who enjoy only “conditional

USA V. PAYNE 11

freedom,” have a significantly diminished expectation of

privacy, while the government has a strong interest in

assessing parolees’ rehabilitation and reentry while

simultaneously protecting the public. People v. Reyes, 968

P.2d 445, 450–51 (Cal. 1998); People v. Bryant, 491 P.3d

1046, 1054 (Cal. 2021) (“[A] warrantless search of a

parolee’s property or residence . . . is per se reasonable.”);

see also United States v. Johnson, 875 F.3d 1265, 1275 (9th

Cir. 2017). The Supreme Court of the United States agreed,

upholding suspicionless searches of parolees based on the

totality of the circumstances provided they are not “arbitrary,

capricious, or harassing.” Samson v. California, 547 U.S.

843, 856–57 (2006). In the years since Samson, we have

made clear that suspicionless parolee searches that

“compl[y] with the terms of a valid search condition will

usually be deemed reasonable under the Fourth

Amendment.” United States v. Cervantes, 859 F.3d 1175,

1183 (9th Cir. 2017).

Our more recent cases have articulated the narrow set of

constraints that apply to law enforcement officers

conducting suspicionless parole searches. First, the officer

conducting the parole search must have probable cause to

believe “that the individual to be searched is on active

parole, and an applicable parole condition authorizes the

search or seizure at issue.” United States v. Estrella, 69

F.4th 958, 972 (9th Cir. 2023). Second, those searches

cannot be “arbitrary, capricious, or harassing.” Id. (internal

quotations and citations omitted); Reyes, 968 P.2d at 450;

see Cal. Penal Code § 3067(d) (“It is not the intent of the

Legislature to authorize law enforcement officers to conduct

searches for the sole purpose of harassment.”).

Payne raises two distinct, yet inexorably entwined,

arguments: (1) that the officers on scene during the traffic

12 USA V. PAYNE

stop used “unreasonable means” to unlock his phone

considering the language of his special search condition;

and (2) that the search was arbitrary, capricious, or

harassing.

Payne’s unreasonable means argument most closely

implicates the principle, from Estrella, that officers must

have probable cause to believe an individual is on parole and

subject to an applicable parole condition that authorizes the

search at issue. 69 F.4th at 972. Here, the search at issue is

of Payne’s phone, made possible by the forced use of

Payne’s thumb to unlock the device. Payne posits the

question of whether CHP officers complied with the precise

terms of his parole conditions when they searched his cell

phone as a threshold one. In other words, he argues that the

parole search exception to the warrant requirement cannot

apply when officers do not follow the precise terms or

commands of a parole condition. He points to the language

in special parole condition number sixty-four for support,

which compelled Payne to surrender his cell phone to any

law enforcement officer for inspection and “provide [the]

pass key/code to unlock the device.” It further states that

“[f]ailure to comply can result in your arrest pending further

investigation and/or confiscation of any device pending

Invoking Fed. R. Crim. P. 12, the government argues that Payne

forfeited his “unreasonable means” argument because he failed to

squarely present it in his motion to suppress. However, Payne’s

argument centers on the precise language of his parole conditions, which

was presented to and analyzed by the district court during the

suppression hearing. See United States v. Magdirila, 962 F.3d 1152,

1155–57 (9th Cir. 2020). Because Payne’s argument does not rely on

new facts or wholly distinct legal theories, we decline to deem it

forfeited.

USA V. PAYNE 13

investigation.” Relying on the condition’s plain language,

Payne argues that the officers could not use his thumb to

unlock his phone when he refused to provide the numerical

passcode—their only recourse was to confiscate the device

or arrest him pending investigation, as outlined in the special

search condition.

Textually, Payne’s unreasonable means argument has

certain cogency. The special search condition did not

require Payne to provide a biometric identifier to unlock any

electronic devices in his vicinity and it did include an express

enforcement provision. However, Payne’s argument suffers

from two fatal flaws. First, it ignores the more general,

statutorily mandated search condition included in his—and

every California parolee’s—Notice of Conditions of Parole.

Second, Payne’s proposed approach decouples the analysis

from the “totality of the circumstances” and

“reasonableness” inquiries that form the foundation of our

Fourth Amendment jurisprudence, including in the parolee

search context. See, e.g., Brigham City, Utah v. Stuart, 547

U.S. 398, 403 (2006); United States v. Knights, 534 U.S.

112, 118 (2001).

While Payne’s special search condition addresses

electronic devices specifically, his general search condition,

mandated by California law, states that “any property under

[Payne’s] control are subject to search or seizure by . . . any

other peace officer, at any time of the day or night, with or

without a search warrant, with or without cause.” We have

before held that California’s statutory framework governing

the suspicionless search of parolees authorizes officers to

conduct warrantless searches of parolees’ cell phones. See

Johnson, 875 F.3d at 1275. The language of California’s

general search condition, written into all California parole

notices, is abundantly clear, putting parolees like Payne on

14 USA V. PAYNE

notice that their person, home, phone, and other belongings

may be searched at any time without cause or a warrant. This

“clear and unambiguous search condition” serves to

“significantly diminish[] [parolees’] reasonable expectation

of privacy.” Samson, 547 U.S. at 852. Thus, under the

general search condition of Payne’s parole, he did not have

an “expectation of privacy that society would recognize as

legitimate” in the contents of his cell phone. Id. The

question then becomes whether the inclusion of the special

search condition in any way alters that reality.

In applying Supreme Court precedent governing

warrantless parolee and probationer searches, we have

acknowledged that officers are generally required to conduct

these searches pursuant to valid search conditions. In United

States v. Caseres, we held that warrantless parole searches

do not withstand scrutiny when officers are unaware that

§ 3067, or a similar parole search statute or condition,

applies. 533 F.3d 1064, 1076 (9th Cir. 2008). Caseres drew

on well-founded concerns that officers could seek to use

broad parole search conditions—discovered to apply only

after a warrantless search took place—to retroactively justify

their actions. See id.; Samson, 547 U.S. at 856 n.5 (“[A]n

officer would not act reasonably in conducting a

suspicionless search absent knowledge that the person

stopped for the search is a parolee.”); Moreno v. Baca, 431

F.3d 633, 641 (9th Cir. 2005) (“[P]olice officers cannot

retroactively justify a suspicionless search and arrest on the

basis of an after-the-fact discovery of . . . a parole

condition.”); Fitzgerald v. City of Los Angeles, 485 F. Supp.

2d 1137, 1143 (C.D. Cal. 2007) (“[A]dvance knowledge of

a parolee’s status is critical to the constitutionality of a

suspicionless search of a parolee.”). These cases, on which

Caseres relied, did not hold that officers must have

USA V. PAYNE 15

knowledge of the exact language of a parole condition.

Rather, they focused on whether the searching officers had

knowledge of a parolee’s status.

In Estrella, we refined the prior knowledge language

from Caseres to mean that an officer must have both:

(1) “probable cause to believe that an individual is on active

parole before conducting a suspicionless search,” and

(2) probable cause to believe that “an applicable parole

condition authorizes the search . . . at issue.” 69 F.4th at

971–72. We opted for this standard, in lieu of an “actual

knowledge” standard, on the basis that the Fourth

Amendment “calls for reasonable determinations, and does

not demand certainty.” Id. at 968 (citing Hill v. California,

401 U.S. 797, 804 (1971)).

Our decisions in Caseres and Estrella do not support

Payne’s proposition that the officers were compelled to

follow the special search condition to the letter or that the

special search condition served to override the general

search condition. Instead, they support the government’s

position that the general search condition authorized the

search of Payne’s cell phone. If we were to accept Payne’s

proposition, it would impose an impractical burden on

officers in the field to study a parolee’s specific parole

conditions before conducting the investigations they deem

necessary based on the circumstances with which they are

confronted. See Estrella, 69 F.4th at 968 (noting that

officers cannot be expected to possess “‘up-to-the-minute’

information of a parolee’s status before proceeding with a

routine compliance check”).

Here, having confirmed Payne’s California parole status

with the Riverside County Sheriff’s dispatch, Officer

Coddington was on notice of Payne’s general search

16 USA V. PAYNE

condition, which subjected all “property under [Payne’s]

control” to “search or seizure . . . at any time of the day or

night, with or without a search warrant, with or without

cause.” As a California officer, dealing with a California

parolee, he reasonably believed that §§ 3067(b)(3) and

2511(b)(4) authorized him to search Payne, his vehicle, and

his belongings, including his cell phone. The search was

thus independently justified under Payne’s general search

condition.

That Payne was also subject to a special electronic

device search condition, of which Officer Coddington was

also aware, does not place the search of Payne’s cell phone

outside of the realm of reasonableness, even considering the

way Officer Coddington accessed its contents. In Delrio, the

California Court of Appeal considered the interplay between

California’s mandatory search conditions and other various

special conditions to which a parolee may be subjected. See

People v. Delrio, 259 Cal. Rptr. 3d 301, 304–09 (Ct. App.

2020). There, the court found that special conditions of

California parole, like special condition sixty-four in

Payne’s case, “do not appear intended to set restrictions on

the searches and seizures authorized by Penal Code section

3067, subdivision (b)(3), or to elevate a parolee’s

expectations of privacy.” Id. at 308. Instead, the court saw

the terms as interposing additional penalties for possible

parole violations. Id. (“When such special conditions are

selected, the parolee’s failure to adhere may give rise to

parole violation charges . . . .”). We agree.

As Payne would have it, CHP officers’ only recourse for

Payne’s refusal to provide his numerical passcode would

have been the two options textually set forth in his special

parole condition: “arrest pending further investigation

and/or confiscation of any device pending investigation.”

USA V. PAYNE 17

Payne argues that any officer conduct outside of those

measures would be per se unreasonable. But so drastically

limiting the range of permissible officer conduct based on

whether a parolee is subject to a special search condition

would lead to bizarre results. Nor do parole search

conditions have the strict textual force that Payne suggests

they should. See People v. Schmitz, 288 P.3d 1259, 1273

(Cal. 2012) (noting that the scope of a parole search is not

“strictly tied to the literal wording of the notification given

to the parolee upon release”); Delrio, 259 Cal. Rptr. 3d at

309 (“[T]he officers who performed the parole search of

defendant were not required to first ascertain and parse the

language of the [parole] form”).

Law enforcement officers in the field can proceed with a

search under a parolee’s general search condition, assuming

that search is reasonable. After all, the California

Department of Corrections and Rehabilitation defines

special conditions of parole as “rules imposed in addition to

the general conditions of parole,” not in place of those

general conditions. Parole Conditions, Cal. Dep’t of Corrs.

& Rehab., https://www.cdcr.ca.gov/parole/parole-

conditions/ (last visited Apr. 10, 2024) (emphasis added).

These special conditions are imposed based on a parolee’s

particular offense and criminal history—i.e., aggravating

factors—and are designed as a further means by which the

department can “discourage criminal behavior.” Id. It

would thus make little sense to hold that Payne’s special

search condition materially raised his expectation of

privacy, providing him with a way to shield the contents of

his phone from officer inspection by refusing to provide his

passcode.

At best, the special condition of Payne’s parole created

some minimal ambiguity concerning the reach of his parole

18 USA V. PAYNE

conditions in the aggregate. In reviewing suspicionless

searches of parolees, the Supreme Court of the United States,

the Ninth Circuit, and the Supreme Court of California have

often analyzed parole conditions, their clarity, and officers’

knowledge of their express terms as factors to consider in a

comprehensive reasonableness analysis. For example, in

Samson, the Supreme Court of the United States found the

clear expression of a parole search condition as “salient,” but

still examined the search under the “totality of the

circumstances.” Samson, 547 U.S. at 852; see also Knights,

534 U.S. at 118; Johnson, 875 F.3d at 1275; People v.

Sanders, 73 P.3d 496, 506–07 (Cal. 2003). This totality of

the circumstances approach is sound, especially considering

that a parole search is an exception to the warrant

requirement, well-situated in broader Fourth Amendment

jurisprudence. See, e.g., Griffin v. Wisconsin, 483 U.S. 868,

873 (1987). With that approach in mind, we assess “on the

one hand, the degree to which [the search] intrudes upon an

individual’s privacy and, on the other, the degree to which it

is needed for the promotion of legitimate governmental

interests.” Knights, 534 U.S. at 119 (quoting Wyoming v.

Houghton, 526 U.S. 295, 300 (1999)).

Payne’s parole status alone subjected him to a

significantly diminished expectation of privacy. See

Johnson, 875 F.3d at 1275. With respect to his cell phone,

Payne signed and acknowledged multiple explicit parole

search conditions that required him to surrender any device

in his vicinity for search without cause. To the extent that

Payne’s special search condition created an ambiguity over

how far his general search condition could sweep, that

ambiguity may have marginally increased Payne’s

expectation of privacy in his cell phone. But any increase

based on these facts is de minimis. Payne knew he was on

USA V. PAYNE 19

parole. He knew that, based on his parole conditions, all his

belongings could be searched at any time, including the

contents of his cell phone. Officer Coddington’s use of

means not specifically contemplated by Payne’s special

search condition to access a device over which Payne had no

significant privacy interest does not appear to have been

unreasonable.

The reasonableness of the search is compounded when

Payne’s diminished privacy interest is weighed against the

government’s interest in supervising parolees. “[A] State’s

interests in reducing recidivism and thereby promoting

reintegration and positive citizenship among probationers

and parolees warrant privacy intrusions that would not

otherwise be tolerated under the Fourth Amendment.”

Samson, 547 U.S. at 853. The Supreme Court has described

this government interest as “overwhelming” based on

parolees increased propensity “to commit future criminal

offenses.” Id. (quoting Pennsylvania Bd. of Prob. & Parole

v. Scott, 524 U.S. 357, 365 (1998)). Here, the State’s already

significant interest was even greater based on Officer

Coddington’s knowledge of Payne’s assault with a deadly

weapon charge, Payne’s extreme nervousness during the

traffic stop, and Payne’s possession of over $1,000 in cash.

Accordingly, we hold that the inclusion of Payne’s

special search condition did not vitiate the force of his

statutorily mandated general search condition, which

independently authorized the search at issue in this case.

Moreover, we hold that any ambiguity created by the

inclusion of 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.

20 USA V. PAYNE

In addition to his unreasonable means argument, Payne

claims that the search of his cell phone violated California’s

prohibition against arbitrary, capricious, or harassing parole

searches. Suspicionless parole searches that violate

California’s prohibition against arbitrary, capricious, or

harassing searches are constitutionally unreasonable.

Cervantes, 859 F.3d at 1183. This prohibition, however, is

“decidedly narrow” and only applies to situations where, for

example, a search “is based merely on a whim or caprice or

when there is no reasonable claim of a legitimate law

enforcement purpose.” Estrella, 69 F.4th at 972 (quoting

People v. Cervantes, 127 Cal. Rptr. 2d 468, 471 (Ct. App.

2002), as modified (Dec. 23, 2002)).

Payne argues that “[o]nce the officers found nothing

illegal on [his] person or in his vehicle, that should have been

the end of the matter,” but he does not cite to any authority

suggesting that an officer’s failure to abandon their

investigation under these circumstances rises to the level of

a violation of the arbitrary, capricious, or harassing standard.

Instead, he cites cases involving the automobile exception

for the proposition that officers had no reason to search the

contents of Payne’s phone for evidence of his window tint

violation. Those cases, however, are inapposite because

officers must have probable cause to conduct a search under

the automobile exception to the warrant requirement. Parole

searches, on the other hand, require no such probable cause

determination as to the place or thing being searched.

Finally, Payne claims that the officers’ search of his

photos, videos, and maps ran afoul of the Supreme Court’s

decision in Riley v. California, which held that officers could

not search the contents of an individual’s cell phone as

USA V. PAYNE 21

incident to their arrest. 573 U.S. 373, 401 (2014). However,

we clearly rejected the argument that Riley applies to parole

searches of a cell phone in Johnson. 875 F.3d at 1273–75.

We therefore decline to extend Riley’s reasoning to the facts

of this case.

The CHP officers who legitimately stopped Payne did so

based on their independent suspicion that Payne had violated

California’s Vehicle Code. They proceeded with their

investigation logically and appropriately after learning

Payne was a California parolee and observing his behavior.

Having failed to present any evidence that the CHP officers

who stopped Payne and eventually searched his cell phone

demonstrated any “arbitrary or oppressive conduct,” Reyes,

968 P.2d at 451 (citations omitted), we hold that the search

of Payne’s cell phone was reasonable.

III

Next, we consider Payne’s argument that CHP officers

violated his Fifth Amendment privilege against self-

incrimination when they compelled him to unlock his cell

phone using his fingerprint. Again, we review the district

court’s denial of Payne’s motion to suppress de novo, and its

factual findings for clear error. Sullivan, 797 F.3d at 632–

33.

Ratified in 1791, the Fifth Amendment provides that

“[n]o person shall be . . . compelled in any criminal case to

be a witness against himself.” U.S. Const. amend. V. While

To the extent that determination required the court to apply facts to law

in a way that was “essentially factual,” we discern no clear error in the

court’s conclusion. United States v. Franklin, 18 F.4th 1105, 1115 (9th

Cir. 2021) (quoting United States v. Hinkson, 585 F.3d 1247, 1259–60

(9th Cir. 2009) (en banc)).

22 USA V. PAYNE

the precise scope of the privilege has, and continues to be,

subject to great debate, what has emerged is a three-prong

analysis, with each prong representing a standalone inquiry.

For a criminal defendant to benefit from the Fifth

Amendment privilege, there must be a “communication” at

issue that is: (1) compelled; (2) incriminating; and

(3) testimonial. See Hiibel v. Sixth Jud. Dist. Ct. of Nev.,

Humboldt Cnty., 542 U.S. 177, 189 (2004). The government

all but concedes that Payne has established the compelled

and incriminating prongs of the analysis, so we address them

only briefly.

The district court implicitly found that CHP officers

compelled Payne to use his thumb to open the device, despite

Officer Coddington’s attestation that Payne reluctantly

opened the device on his own. For the purposes of this

appeal, the government has accepted Payne’s version of

events. Payne averred that, after he refused to give officers

his passcode, one of them “grabbed [his] thumb and

unlocked the phone.” This transpired while Payne was

handcuffed and in the back of a patrol vehicle. Compulsion

is present for Fifth Amendment purposes when,

“considering the totality of the circumstances, the free will

of the witness was overborne.” United States v. Anderson,

79 F.3d 1522, 1526 (9th Cir. 1996) (quoting United States v.

Washington, 431 U.S. 181, 188 (1977)). Based on Payne’s

version of events, the use of his thumb to unlock his phone

was compelled. He was physically restrained, in the back of

a squad car, and had already refused to provide officers with

the passcode to unlock the phone. Based on this resistance,

CHP officers took matters into their own hands, physically

selecting one of Payne’s thumbs to unlock the device.

The use of Payne’s thumb to unlock his device was also

“incriminating.” This prong of the Fifth Amendment

USA V. PAYNE 23

analysis has been interpreted to encompass “any disclosures

which the witness reasonably believes could be used in a

criminal prosecution or could lead to other evidence that

might be so used.” Kastigar v. United States, 406 U.S. 441,

445 (1972). Here, Payne could have reasonably concluded

that giving up his thumbprint, and thereby access to the vast

trove of personal information contained on his cell phone,

would lead to evidence that could be used against him in a

criminal prosecution. Indeed, that is exactly what happened.

The more difficult question is whether the compelled use

of Payne’s thumb to unlock his phone was testimonial. To

date, neither the Supreme Court nor any of our sister circuits

have addressed whether the compelled use of a biometric to

unlock an electronic device is testimonial. Testimonial

communications are those that, “explicitly or implicitly,

relate a factual assertion or disclose information.” Doe v.

United States, 487 U.S. 201, 210 (1988). Of course, there

are no explicit communications on this record. Payne said

nothing when CHP officers used his thumb to unlock his

phone. His Fifth Amendment claim thus rests entirely on

whether the use of his thumb implicitly related certain facts

to officers such that he can avail himself of the privilege

against self-incrimination. This argument implicates two

lines of Supreme Court precedent: the physical trait cases

and the act of production doctrine.

Compelled physical acts—i.e., those that require an

individual to serve as a “donor”—are not testimonial. The

physical trait cases have addressed circumstances where an

individual is compelled to: don a particular piece of clothing,

Holt v. United States, 218 U.S. 245, 252–53 (1910); stand in

a lineup, United States v. Wade, 388 U.S. 218, 223 (1967);

provide a handwriting or voice exemplar, Gilbert v.

California, 388 U.S. 263, 266–67 (1967) (handwriting

24 USA V. PAYNE

exemplar); Wade, 388 U.S. at 222–23 (1967) (voice

exemplar); submit to fingerprinting, Wade, 388 U.S. at 223;

or have their blood drawn for DUI testing, Schmerber v.

California, 384 U.S. 757, 761 (1966). Each case reached the

same conclusion: not testimonial. In Schmerber, for

example, the Court recognized that history and lower court

precedent made clear that the privilege against self-

incrimination was designed to ward off “situations in which

the State seeks to . . . obtain[] the evidence against an

accused through the cruel, simple expedient of compelling it

from his own mouth.” Schmerber, 384 U.S. at 763 (internal

quotation marks omitted). Because the “[p]etitioner’s

testimonial capacities were in no way implicated” and his

“participation, except as a donor, was irrelevant to the results

of the test,” the Court held that the compelled blood draw

was not testimonial under the Fifth Amendment. Id. at 765.

On its face, the use of Payne’s thumb to unlock his phone

appears no different from a blood draw or fingerprinting at

booking. These actions do not involve the testimonial

capacities of the accused and instead only compel an

individual to provide law enforcement with access to an

immutable physical characteristic. See Wade, 388 U.S. at

222–23. The next step of the investigation depends on the

“independent labor of [the state’s] officers.” Estelle v.

Smith, 451 U.S. 454, 462 (1981) (quoting Culombe v.

Connecticut, 367 U.S. 568, 581–82 (1961)). But Payne

maintains that the use of his thumb to unlock his phone is

fundamentally different from the compelled acts in past

physical trait cases, including the fingerprinting discussed in

Schmerber and Wade. See Schmerber, 384 U.S. at 764;

Wade, 388 U.S. at 223. According to Payne, this is because

of what the compelled use of his biometric implicitly

USA V. PAYNE 25

communicated. He looks to the act of production doctrine

for support.

Under the act of production doctrine, a purely physical

act may nonetheless be testimonial because of what it

communicates “wholly aside from the contents” of the thing

produced. Fisher v. United States, 425 U.S. 391, 410 (1976).

Although act of production cases have dealt exclusively with

responses to document subpoenas, their reasoning applies to

other situations.

The Supreme Court has reasoned that

producing a trove of documents in response to a subpoena

may implicitly communicate “the existence of the papers

demanded and their possession or control by the

[individual],” as well as the individual’s “belief that the

papers are those described in the subpoena.” Id. (citing

Curcio v. United States, 354 U.S. 118, 125 (1957)).

The act of production doctrine’s triggering point

becomes clearer upon close reading of the Supreme Court’s

decisions in Doe, 487 U.S. 201, and United States v.

Hubbell, 530 U.S. 27 (2000). In Doe, the government

compelled an individual to “sign 12 forms consenting to

disclosure of any bank records respectively relating to 12

foreign bank accounts over which the Government knew or

suspected that Doe had control.” 487 U.S. at 203. However,

the consent forms did not force Doe to himself collect and

The government suggests the doctrine only applies to subpoena

responses, arguing that there is “no basis to extend that doctrine to the

act of biometric unlock.” We are not so sure. The Supreme Court has

stated in its act of production jurisprudence that “[t]he difficult question

whether a compelled communication is testimonial for purposes of

applying the Fifth Amendment often depends on the facts and

circumstances of the particular case.” Doe, 487 U.S. at 214–15; see also

Fisher, 425 U.S. at 410 (noting questions of whether “tacit averments”

are testimonial “do not lend themselves to categorical answers”).

26 USA V. PAYNE

turn over any documents. The Court held that this was not a

testimonial production, reasoning that the signing of the

forms related no information about existence, control, or

authenticity of the records that the bank could ultimately be

forced to produce. Id. at 215–16. For these reasons, the

consent forms were more akin to producing “a handwriting

sample or voice exemplar” because the act was not

“compelled to obtain ‘any knowledge [the suspect] might

have.’” Id. at 217 (quoting Wade, 388 U.S. at 222).

The

forms only provided the government with “access to a

potential source of evidence,” but locating the evidence itself

required “the independent labor of its officers.” Id. at 215

(internal quotation marks omitted and emphasis added).

Hubbell, on the other hand, involved a “subpoena duces

tecum calling for the production of 11 categories of

documents.” Hubbell, 530 U.S. at 31. The suspect

eventually “produced 13,120 pages of documents and

records and responded to a series of questions that

established that those were all of the documents in his

custody or control that were responsive to the commands in

the subpoena.” Id. The Court held that this act of production

was of a fundamentally different kind than that at issue in

Doe because it was “unquestionably necessary for

respondent to make extensive use of ‘the contents of his own

mind’ in identifying the hundreds of documents responsive

to the requests in the subpoena.” Id. at 43. The “assembly

of those documents was like telling an inquisitor the

Justice Stevens dissented from the majority opinion in Doe but

introduced an analogy that was central to his majority opinion in

Hubbell. He wrote that a defendant “may in some cases be forced to

surrender a key to a strongbox containing incriminating documents, but

I do not believe he can be compelled to reveal the combination to his

wall safe.” Doe, 487 U.S. at 219 (Stevens, J. dissenting).

USA V. PAYNE 27

combination to a wall safe, not like being forced to surrender

the key to a strongbox.” Id. (citing Doe, 487 U.S. at 210

n.9). Thus, the dividing line between Doe and Hubbell

centers on the mental process involved in a compelled act,

and an inquiry into whether that act implicitly communicates

the existence, control, or authenticity of potential evidence.

District courts applying Doe and Hubbell have arrived at

different conclusions on the biometric unlock question.

Payne relies heavily on a Northern District of California case

that held forced biometric unlocks violate the Fifth

Amendment. In re Residence in Oakland, Cal., 354 F. Supp.

3d 1010 (N.D. Cal. 2019) [hereinafter Oakland]. There, a

magistrate judge determined the act of production doctrine

applied for two primary reasons. First, because compelling

an individual to unlock a device with a biometric identifier

is the functional equivalent of compelling that person to turn

over their alphanumeric passcode, an act that is generally

accepted to be protected by the Fifth Amendment because it

requires an individual to divulge the contents of his mind.

Id. at 1015–16 (“[I]f a person cannot be compelled to

provide a passcode because it is a testimonial

communication, a person cannot be compelled to provide

one’s finger, thumb, iris, face, or other biometric feature to

unlock that same device.”). Second, because the act

instantly concedes “that the phone was in the possession and

control of the suspect, and authenticates ownership or access

to the phone and all of its digital contents.” Id. at 1016.

Other district courts have come to similar conclusions. See,

e.g., United States v. Wright, 431 F. Supp. 3d 1175, 1187–

88 (D. Nev. 2020); In re Single-Family Home & Attached

Garage, No. 17 M 85, 2017 WL 4563870, at *7 (N.D. Ill.

Feb. 21, 2017).

28 USA V. PAYNE

Still other district courts have come to the opposite

result. Addressing the Oakland court’s reasoning, these

cases assert that whether a passcode and a fingerprint unlock

are functional equivalents is an observation with no legal

significance to the Fifth Amendment analysis. See In re

Search Warrant No. 5165, 470 F. Supp. 3d 715, 734 (E.D.

Ky. 2020) (“The Court stands by the unambiguous

distinction in both the law and common sense between

something intangibly held in the most sacred of places—

one’s own mind—and an immutable physical

characteristic.”). Moreover, responding to the argument that

“if the device unlocks, then the incriminating inference is

that the person had possession or control of the device,”

these courts note that such a line of analysis improperly

conflates the incrimination prong with the testimonial prong.

See In re Search Warrant Application for [redacted text],

279 F. Supp. 3d 800, 805 (N.D. Ill. 2017). They ultimately

conclude that biometric unlock cases are no different than

other physical trait cases, like subjecting an individual to

fingerprinting or drawing a person’s blood, because the acts

at issue “do not themselves communicate anything.” Id.

In Payne’s case, the Fifth Amendment question

stemming from the compelled use of his thumb to unlock his

phone bears striking resemblance to Justice Stevens’ key vs.

combination analogy. While providing law enforcement

officers with a combination to a safe or passcode to a phone

would require an individual to divulge the “contents of his

State courts are equally split on the issue. Compare, e.g., State v.

Pittman, 479 P.3d 1028, 1040–43 (Or. 2021) (unlocking phone using

biometrics is testimonial), with State v. Diamond, 905 N.W.2d 870, 874–

78 (Minn. 2018) (unlocking phone using biometrics is not testimonial);

People v. Ramirez, 316 Cal. Rptr. 3d 520, 544–50 (Ct. App. 2023)

(same).

USA V. PAYNE 29

own mind,” turning over a key to a safe or a thumb to unlock

a phone requires no such mental process. Hubbell, 530 U.S.

at 43. To say that a passcode and a biometric are equivalents

and thus cannot receive different treatment under the law is

a syllogistic fallacy. The logic goes: biometrics are the

equivalent of or a substitute for a passcode and passcodes are

protected under the Fifth Amendment, so, biometrics are

also protected under the Fifth Amendment. The flaw lies in

the fact that the Supreme Court has framed the question

around whether a particular action requires a defendant to

divulge the contents of his mind, not whether two actions

yield the same result. See Hubbell, 530 U.S. at 43. The

functional equivalent argument attempts to make an end run

around this central piece of the Fifth Amendment inquiry.

When Officer Coddington used Payne’s thumb to unlock his

phone—which he could have accomplished even if Payne

had been unconscious—he did not intrude on the contents of

Payne’s mind.

While we find the fact that there was no “cognitive

exertion” on Payne’s part most determinative, In re Search

of [redacted] Washington, D.C., 317 F. Supp. 3d 523, 538

(D.D.C. 2018), the relative level of existence, control, and

authentication established through a biometric unlock

compared to a comprehensive response to a subpoena is also

instructive. See Hubbell, 530 U.S. at 43. Payne concedes

that “the use of biometrics to open an electronic device is

akin to providing a physical key to a safe,” but argues it is

nonetheless a testimonial act because it “simultaneously

confirm[s] ownership and authentication of its contents.”

However, Payne was never compelled to acknowledge the

existence of any incriminating information. He merely had

to provide access to a source of potential information, just as

was the case in Doe and Schmerber. See Doe, 487 U.S. at

30 USA V. PAYNE

215; Schmerber, 384 U.S. at 765. The officers were left to

identify any incriminating evidence through their own

investigation. This is decidedly unlike Hubbell, where the

subpoena respondent was implicitly conceding the

“existence, authenticity, and custody” of specific documents

that prosecutors could use in building its case against the

respondent. Hubbell, 530 U.S. at 41–42.

One can imagine how Payne’s case might alternatively

fit more neatly in the Hubbell framework. For example, had

officers somehow compelled Payne to cull through the

information in his phone and produce any photos or videos

that demonstrated his participation in fentanyl trafficking,

there may have been a testimonial act of production.

Turning over those photos or videos would implicitly

concede that Payne had such videos, that they depicted what

the officers were looking for, and that they related to his

specific activities. Obviously, that is not the case here.

The Supreme Court has also observed that implicit

authentication is the “prevailing justification” for extending

Fifth Amendment protection to acts of documentary

production because responding to a subpoena may be akin to

requiring a suspect to “implicitly testif[y] that the evidence

he brings forth is in fact the evidence demanded.” Fisher,

425 U.S. at 412 n.12 (internal quotations omitted) (quoting

Couch v. United States, 409 U.S. 322, 346 (1973) (Marshall,

J., dissenting)). But “[t]he fact that an individual is able to

unlock a phone with a physical characteristic does not

automatically make each individual set of data, such as

photos, videos . . . immediately authentic.” In re Search

Warrant Application for the Cellular Telephone in United

States v. Barrera, 415 F. Supp. 3d 832, 841 (N.D. Ill. 2019).

Authentication is not established in the same way here

compared to a response to a subpoena where the respondent

USA V. PAYNE 31

is essentially stating the “item is what the proponent claims

it is.” Id. (quoting Fed. R. Evid. 901(a)). Phones like

Payne’s “can often be programmed to use multiple

individuals’ biometrics.” In re Search Warrant No. 5165,

470 F. Supp. 3d at 733. While the fact that Payne’s thumb

unlocked the phone proved to be incriminating, it alone

certainly did not serve to authenticate all the phone’s

contents.

To the extent Payne relies on the Oakland court’s

attempt to distinguish biometric unlocks from “requiring a

suspect to submit to fingerprinting” because it immediately

results in access to more physical evidence and “there is no

comparison . . . required to confirm a positive match,” this

line of analysis conflates what is incriminating with what is

testimonial. Oakland, 354 F. Supp. 3d at 1016; see Doe, 487

U.S. at 210 (“[C]ertain acts, though incriminating, are not

within the privilege.”). All physical trait cases have dealt

with compelled acts eventually leading to incriminating

evidence that can be used in a suspect’s prosecution. See In

re Search Warrant Application for [redacted text], 279 F.

Supp. 3d at 805 (noting the “distinction—between whether

an act is testimonial versus whether the act is

incriminating—explains why physical characteristics, like

fingerprints, blood samples, handwriting, and so on are not

protected by the privilege even though they often are highly

incriminating”). The compelled use of an individual’s

thumb to unlock a device shares many of the same

incriminating inferences as comparing a suspect’s

thumbprint to a thumbprint lifted from a murder weapon.

The time it takes to make the connection, or the amount of

incriminating information that flows from the

nontestimonial act, is of little consequence.

32 USA V. PAYNE

Accordingly, we hold 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. The act itself merely provided CHP with

access to a source of potential information, much like the

consent directive in Doe. The considerations regarding

existence, control, and authentication that were present in

Hubbell are absent or, at a minimum, significantly less

compelling in this case. Accordingly, under the current

binding Supreme Court framework, the use of Payne’s

thumb to unlock his phone was not a testimonial act and the

Fifth Amendment does not apply.

We would be remiss not to mention that 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. Indeed, 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. See In re Search Warrant Application

for [redacted text], 279 F. Supp. 3d at 804 (discussing how

Payne argues that the Supreme Court’s decision in Riley supports a

different result because there the Court recognized that modern

technological advances like the use of smart phones may require

reexamination of certain privacy principles. 573 U.S. at 403. But Riley

analyzed cell phone searches under the Fourth Amendment, which calls

for a reasonableness analysis. See In re Search Warrant Application for

[redacted text], 279 F. Supp. 3d at 806. The Fifth Amendment demands

no such reasonableness inquiry. The narrow question before us is

whether the compelled use of Payne’s thumb is testimonial. Existing

Supreme Court precedent provides the necessary tools to answer that

question.

USA V. PAYNE 33

a suspect would be required to engage in some thought

process if the government compels them to “decide which

finger (or fingers) to apply” to a sensor). And if that were

the case, we may have had to grapple with the so-called

foregone conclusion doctrine. See Fisher, 425 U.S. at 411.

We mention these possibilities not to opine on the right result

in those future cases, but only to demonstrate the complex

nature of the inquiry.

Having determined that the search of Payne’s cell phone

did not violate the Fourth or Fifth Amendment, Payne’s

argument that the evidence seized from El Cortez Way must

be suppressed as “fruit of the poisonous tree” fails.

Next, Payne contends that the pre-warrant search of the

house on El Cortez Way independently violated his Fourth

Amendment rights. The government offers three possible

reasons why either the pre-warrant search was legal, or the

constitutionality of the pre-warrant search is immaterial to

the outcome of this case. First, it claims the search was valid

pursuant to Payne’s parole conditions. Second, it claims that

the search warrant CHP officers eventually obtained was

valid notwithstanding the constitutionality of the pre-

warrant search. Third, it claims that even if the search

warrant was invalid, the good faith exception to the

exclusionary rule applies. We agree with the government’s

second argument and, thus, do not address its first or third.

We review the district court’s denial of Payne’s motion

to suppress de novo and can affirm on any basis the record

supports. United States v. Ruiz, 428 F.3d 877, 880 (9th Cir.

2005).

34 USA V. PAYNE

When a search warrant application includes “illegally

obtained information,” a reviewing court must determine

whether the warrant was supported by probable cause after

“properly purg[ing] the affidavit of the offending facts.”

United States v. Bishop, 264 F.3d 919, 924 (9th Cir. 2001).

Here, the district court held that “when you eliminate the

facts uncovered during the sweep, the warrant contained

probable cause.” In his reply brief, Payne expressly

conceded that he “agrees with the government . . . that the

information from his phone likely would have been

sufficient for probable cause even without the information

garnered during the illegal protective sweep.” We agree.

Assuming without deciding that the pre-warrant sweep

of El Cortez Way violated Payne’s Fourth Amendment

rights, whether the warrant CHP officers obtained was

supported by probable cause —i.e., a “probability or

substantial chance of criminal activity”—depends on the

facts included in the warrant application that CHP officers

knew before the sweep. District of Columbia v. Wesby, 583

U.S. 48, 57 (2018). These included: (1) Payne was

extremely nervous, sweating profusely, and fumbling for his

documents when he was initially pulled over; (2) Payne

confirmed that he was on parole; (3) a search of Payne’s cell

phone showed a video depicting a large amount of cash, a

money-counting machine, and several bags of what officers

suspected to be fentanyl; (4) a separate video from Payne’s

phone showed the outside of the home on El Cortez Way;

(5) the map application on Payne’s phone showed a pin to a

parked vehicle outside a residence on El Cortez Way; and

(6) upon driving to the location on El Cortez Way, Officer

Coddington observed a silver BMW, confirmed it was

registered to Payne, and was able to unlock the vehicle using

the key seized from Payne’s person.

USA V. PAYNE 35

As Payne acknowledges in his reply brief, these facts go

well beyond establishing probable cause to believe that a

search of the house would uncover evidence of criminal drug

possession and trafficking. Thus, the search warrant was

valid even after excising the facts included in the application

from the pre-warrant protective sweep. The district court

rightfully denied Payne’s motion to suppress.

CONCLUSION

We AFFIRM the denial of Payne’s motion to suppress.