DocketNumber: Case No. 4-19-70053
Citation Numbers: 354 F. Supp. 3d 1010
Filed Date: 1/10/2019
Status: Precedential
Modified Date: 7/25/2022
DISCUSSION
The issues presented in the Application implicate the constitutional protections afforded by the Fourth and Fifth Amendments. The undersigned has found no legal authority explicitly restricting the Court from considering the privileges and protections afforded by the Fifth Amendment prior to signing a warrant. In fact, the prejudice that suspects may suffer should the Fifth Amendment be ignored at this juncture-both due to the practical difficulty in prevailing on a motion to suppress and the fact that they are not represented in the warrant process-gives rise to a moral imperative demanding consideration of the Fifth Amendment. To do otherwise would be a miscarriage of justice.
A. Fourth Amendment Analysis
i. Probable Cause Exists to Search the Premises
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST, amend. IV. "The 'basic purpose of this Amendment,' our cases have recognized, 'is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.' " Carpenter v. United States , --- U.S. ----,
There are sufficient facts in the affidavit to believe that evidence of the crime will be found at the Subject Premises, so the Government has probable cause to conduct a lawful search, so long as it comports with the Fourth Amendment, If, however, law enforcement violates another constitutional right in the course of executing *1014a warrant, it inherently renders the search and seizure unreasonable.
ii. No Probable Cause to Use Biometric Features of All Present During Search
In addition to the search of the premises, the Government seeks an order that would allow agents executing this warrant to compel "any individual, who is found at the Subject Premises and reasonably believed by law enforcement to be a user of the device, to unlock the device using biometric features...." (Aff. ¶ 17h.) This request is overbroad. There are two suspects identified in the affidavit, but the request is neither limited to a particular person nor a particular device.
Thus, the Court finds that the Application does not establish sufficient probable cause to compel any person who happens to be at the Subject Premises at the time of the search to provide a finger, thumb or other biometric feature to potentially unlock any unspecified digital device that may be seized during the otherwise lawful search.
iii. Application Overbreadth
Furthermore, the Government's request to search and seize all digital devices at the Subject Premises is similarly overbroad. The Government cannot be permitted to search and seize a mobile phone or other device that is on a non-suspect's person simply because they are present during an otherwise lawful search.
While the warrant is denied, any resubmission must be limited to those devices reasonably believed by law enforcement to be owned or controlled by the two suspects identified in the affidavit.
B. The Fifth Amendment Privilege
Even if probable cause exists to seize devices located during a lawful search based on a reasonable belief that they belong to a suspect, probable cause does not permit the Government to compel a suspect to waive rights otherwise afforded by the Constitution, including the Fifth Amendment right against self-incrimination.
The challenge facing the courts is that technology is outpacing the law. In recognition of this reality, the United States Supreme Court recently instructed courts to adopt rules that " 'take account of more sophisticated systems that are already in use or in development.' " Carpenter ,
While securing digital devices is not a novel concept, the means of doing so have changed. Indeed, consumers have had the ability to utilize numeric or alpha-numeric passcodes to lock their devices for decades. Courts that have addressed the passcode issue have found that a passcode cannot be compelled under the Fifth Amendment, because the act of communicating the passcode is testimonial, as "[t]he expression of the contents of an individual's mind falls squarely within the protection of the Fifth Amendment." See Doe v. United States ,
Testimony is not restricted to verbal or written communications. Acts that imply assertions of fact can constitute testimonial communication for the purposes of the Fifth Amendment. Doe ,
Notwithstanding, certain acts, while incriminating, are not within the privilege, such as furnishing a blood sample, submitting to fingerprinting, providing a handwriting or voice exemplar, or standing in a lineup. Doe ,
i. The Proposed Use of Biometric Features is Testimonial
The Court finds that utilizing a biometric feature to unlock an electronic device is not akin to submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. First, the Government concedes that a finger, thumb, or other biometric feature may be used to unlock a device in lieu of a passcode. (Aff. ¶ 17a.) In this context, biometric features serve the same purpose of a passcode, which is to secure the owner's content, pragmatically rendering them functionally equivalent. As the Government acknowledges, there are times when the device will not accept the biometric feature and require the user to type in the passcode to unlock the device. (Aff. ¶ 17g.) For example, a passcode is generally required "when a device has been restarted, inactive, or has not been unlocked for a certain period of time."
Second, requiring someone to affix their finger or thumb
While the Court sympathizes with the Government's interest in accessing the contents of any electronic devices it might lawfully seize, there are other ways that the Government might access the content that do not trample on the Fifth Amendment. In the instant matter, the Government may obtain any Facebook Messenger communications from Facebook under the Stored Communications Act or warrant based on probable cause. While it may be more expedient to circumvent Facebook, and attempt to gain access by infringing on the Fifth Amendment's privilege against self-incrimination, it is an abuse of power and is unconstitutional. That the Government may never be able to access the complete contents of a digital device, does not affect the analysis.
ii. The Foregone Conclusion Doctrine Does Not Apply
The foregone conclusion doctrine is an application of the Fifth Amendment *1017"by which the Government can show that no testimony is at issue." In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011 ,
Today's mobile phones are not comparable to other storage equipment, be it physical or digital, and are entitled to greater privacy protection. See Riley v. California , 573 U.S. ----,
It follows that any argument that compelling a suspect to provide a biometric feature to access documents and data is synonymous with producing documents pursuant to a subpoena would fail. As the Riley court recognized, smartphones contain large amounts of data, including GPS location data and sensitive records, the full contents of which cannot be anticipated by law enforcement. See Riley ,
For these reasons, the foregone conclusion doctrine does not apply.
CONCLUSION
For the reasons set forth above, the Government's search warrant application is DENIED. The Government may not compel or otherwise utilize fingers, thumbs, facial recognition, optical/iris, or any other biometric feature to unlock electronic devices. Furthermore, the Government may only seize those digital devices that law enforcement reasonably believes are owned and/or possessed by the two suspects named in the affidavit. The Government may submit a new search warrant application consistent with this order.
Finally, the undersigned hereby SEALS the search warrant application, including all attachments thereto. This order, however, is a matter of public record and shall, accordingly, be issued a case number and docketed by the Clerk of the Court.
IT IS SO ORDERED.
For instance, a suspect arrested pursuant to an arrest warrant issued under the Fourth Amendment, does not waive the right against self-incrimination provided by the Fifth Amendment absent a Miranda warning.
The finger and thumb scans versus actual fingerprints are one example. The same rationale applies to using facial recognition or an optical scan versus submitting to a lineup.
Compelling a suspect to unlock a phone to allow the viewing of applications installed on a smartphone could be self-incriminating and not be a foregone conclusion. For example, a mobile application for a previously unknown cloud storage service-e.g. Dropbox on an iPhone, which also utilizes iCloud-is tantamount to identifying the location, and ultimately producing the contents, of a locked filing cabinet that the Government did not know existed. See Hubbell ,