In re Search of [Redacted] Wash.

317 F.Supp.3d 523

In the MATTER OF the SEARCH OF [REDACTED] WASHINGTON, DISTRICT OF COLUMBIA,

Case No. 18–sw–0122 (GMH)

United States District Court, District of Columbia.

Signed June 26, 2018

MEMORANDUM OPINION

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

The government filed an application for a search warrant in this matter that sought to search a premises in the District of Columbia and to seize, among other things, evidence on cellphones and computers found on the premises which reasonably could contain evidence of the offenses under investigation. In addition, the government sought authorization from the Court to "compel biometric features of an individual believed to have perpetrated the alleged offenses under investigation [the "Subject"] in connection with any biometric recognition sensor-enabled" digital device falling within the scope of the warrant. Government Mem. at 1.¹ In English: the government sought an order from the Court permitting it to attempt to unlock cellphones and computers falling within the scope of the warrant through the compelled use of the Subject's physical characteristics—i.e., his fingerprints, face, or irises. Because the compelled unlocking of digital devices is an emerging area of the law raising both Fourth and Fifth Amendment issues, none of which have been addressed in this District, the undersigned appointed as amicus curiae the Federal Public Defender for the District of Columbia ("amicus " or "Federal Public Defender") to submit its views on the lawfulness of the government's request.² The Court heard oral argument on the government's application on June 4, 2018. It granted the application and signed the search warrant on June 7, 2018. The Court now issues this opinion to explain its reasoning for doing so.

I. BACKGROUND

The government's affidavit in support of the warrant established probable cause to believe that the premises to be searched was the Subject's, an individual whom the government had probable cause to believe has violated 18 U.S.C. § 1030, which prohibits fraud and related activity involving computers. The application further established probable cause to believe that personal electronic devices used or controlled by the Subject, and which might be found on the premises to be searched, contained evidence or information about, or were the instrumentalities of, those crimes (the "Subject Devices"). Specifically, Attachment B to the requested warrant described the evidence to be seized during the search of the premises, including,

for any digital device which is capable of containing and reasonably could contain fruits, evidence, information, contraband, or instrumentalities as described in the search warrant affidavit and above, including but not limited to ... [a certain] computer referenced in the search warrant affidavit [that the Subject has been seen using]:

... evidence of who used, owned, or controlled the [Subject Devices] at the time the things described in this warrant were created, edited, or deleted, such as logs, registry entries, configuration files, saved usernames and passwords, documents, browsing history, user profiles, email, email contacts, "chat," instant messaging logs, photographs, and correspondence

....

Attachment B, ¶ 3.a. Attachment B further stated:

Although already generally covered by paragraph 3.a. above, during the execution of the search of the [premises] described in Attachment A, law enforcement personnel are also specifically authorized to compel [the Subject] to provide biometric features, including pressing his fingers (including thumbs) against and/or putting his face before the sensor, or any other security feature requiring biometric recognition, of:

(a) any of the [Subject Devices] found at the [premises], and

(b) where the [Subject Devices] are limited to those which are capable of containing and reasonably could contain fruits, evidence, information, contraband, or instrumentalities of the offense(s) as described in the search warrant affidavit and warrant attachments,

for the purpose of attempting to unlock the [Subject Devices'] security features in order to search the contents as authorized by this warrant.

Attachment B, ¶ 4. The affidavit in support of the warrant application noted that, from both the affiant's "training and experience, [and] ... from information found in publicly available materials published by device manufacturers, ... many electronic devices, particularly newer mobile devices and laptops, offer their users the ability to unlock the device through biometric features" rather than with passwords or passcodes. Affidavit, ¶ 59.a. Importantly, the warrant made clear that law enforcement was not authorized "to compel any other individuals found at the [premises] to provide biometric features ... to access or otherwise unlock any [Subject Device]," or to request the Subject "to state or otherwise provide the password or any other means that may be used to unlock or access the [Subject Devices], including by identifying the specific biometric characteristics (including the unique finger(s) or other physical features) that may be used to unlock or access the [Subject Devices]." Attachment B, ¶ 4. That is, absent the Subject's Mirandized-waiver of constitutional rights, the government was not permitted to ask the Subject to disclose which biometric feature (e.g., which finger) would unlock any of the Subject Devices. Rather, law enforcement was required to select which biometric feature to test on a given device.

II. DISCUSSION

A. Fourth Amendment

"The Fourth Amendment provides in relevant part that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.’ " Missouri v. McNeely , 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (quoting U.S. Const. amend IV ). Here, the affidavit submitted in support of the search warrant established both probable cause to believe that a crime had been committed and that evidence of the crime would be found at the premises to be searched, including on the Subject Devices. Thus, the government's warrant satisfied the requirements of the Fourth Amendment justifying the search of the premises and of the above-described Subject Devices.³ The novel question presented by the government's application is whether its request to compel the use of the Subject's biometric features in an attempt to open the Subject Devices found on the premises ran afoul of the Fourth Amendment.

"The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California , 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). As the Supreme Court has repeatedly recognized, "obtaining ... physical evidence from a person involves a potential Fourth Amendment violation at two different levels—the ‘seizure’ of the ‘person’ necessary to bring him into contact with government agents, and the subsequent search for and seizure of the evidence. United States v. Dionisio , 410 U.S. 1, 8, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (internal citation omitted) (citing Davis v. Mississippi , 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) ). That said, when a location is searched pursuant to a valid warrant, law enforcement generally may detain occupants who are on the premises during its execution without violating the Fourth Amendment's prohibition on unreasonable seizures. See, e.g., Bailey v. United States , 568 U.S. 186, 201, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) ; Michigan v. Summers , 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) ; cf. United States v. Broussard , 80 F.3d 1025, 1033 (5th Cir. 1996) (suggesting that "prolonged" or "overly intrusive" detention in relation to execution of warrant may violate Fourth Amendment). Assuming, then, that the government's seizure of the Subject during the execution of the warrant was otherwise done in a manner consistent with the Fourth Amendment—that is, that the seizure of the Subject's person was accomplished "in the immediate vicinity of the premises to be searched," Bailey , 568 U.S. at 201, 133 S.Ct. 1031, and was neither prolonged nor overly intrusive, Broussard , 80 F.3d at 1033 —the question then becomes whether the government taking the additional step of testing the Subject's biometric features on any Subject Devices found during the search of the premises similarly complies with the Fourth Amendment.

The government's memorandum cites a number of cases to support the proposition that "obtaining an individual's physical characteristics," including fingerprints, palm prints, and photographic likenesses, "does not constitute an intrusion upon his privacy that warrants Fourth Amendment protection." Government Mem. at 5 (citing United States v. Farias–Gonzalez , 556 F.3d 1181, 1188 (11th Cir. 2009), United States v. Kaczmarak , 62 F. App'x 510, 511 (4th Cir. 2003), United States v. Teter , No. 06-4050-01-CR, 2008 WL 141671, at *6 (W.D. Mo. Jan. 11, 2008), Stehney v. Perry , 907 F.Supp. 806, 823 (D.N.J. 1995), and Rowe v. Burton , 884 F.Supp. 1372, 1384 (D. Alaska 1994) ); but see United States v. Askew , 529 F.3d 1119, 1158 (D.C. Cir. 2008) (noting that although "[i]n a 1973 case, the Supreme Court hinted in dicta that fingerprinting may not be a search," later precedent, such as Hayes v. Florida , 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985), "plainly considered fingerprinting a search"). However, it acknowledges that "most of the cases that have rejected Fourth Amendment challenges to fingerprinting involved fingerprints obtained: (1) when individuals were already lawfully in custody; (2) via grand jury subpoena or other legal process; or (3) only for identification and not investigative purposes," and concedes that "the Fourth Amendment is implicated when the government seeks physical aspects for...