In re Search Warrant No. 5165

470 F.Supp.3d 715

IN RE SEARCH WARRANT NO. 5165

NO. 5:20-MJ-5165

United States District Court, E.D. Kentucky, Central Division. Lexington.

Signed July 2, 2020

David A. Marye, U.S. Attorney's Office, Lexington, KY, for USA.

MEMORANDUM OPINION

Matthew A. Stinnett, United States Magistrate Judge

Modern day biometric authentication features for electronic devices allow once trivial gestures, such as a momentary stare or touch, to be the barrier between the outside world and an individual's most intimate, private details. The United States has applied for a search warrant requesting, in part, to compel any individuals present during a search warrant execution to provide biometrics in order to access seized electronic devices. The Court is now tasked with determining if such compulsion is constitutional and, if so, to whom and what degree it can be applied. In the end, the Court holds that while requests for compelled biometrics is permitted under the Fourth and Fifth Amendment, the Court strikes the biometric request at issue because it fails to address Fourth Amendment concerns set forth below.

I. BACKGROUND

This matter is before the Court on the United States' application for a search warrant ("Search Warrant")¹ seeking to search a premises in the Eastern District of Kentucky, Central Division, belonging to an individual ("Target") and to seize, among other things, evidence on cellphones, computers, and other electronic devices found on the premises ("Premises") which may contain evidence of violations of 18 U.S.C. § 2252A. The Search Warrant is sufficiently particularized and establishes probable cause to believe that: (1) the Premises to be searched belong to the Target; (2) electronic devices of the Target will be found on the Premises; and (3) the electronic devices contain evidence of, or were the instrumentalities of, the alleged crime. The Search Warrant is also particular as to the categories of information sought from the electronic devices.

The Search Warrant also seeks authorization from the Court to "permit[ ] law enforcement to compel all individuals present at the [Premises] to unlock any [electronic devices] requiring biometric access subject to seizure pursuant to this warrant." Biometrics are a set of unique physical features that make you distinctly identifiable, such as your fingerprint, facial features, or iris demarcations. For electronic devices, biometrics are used as security measures to verify that you are you. For example, Apple devices previously used Touch ID (fingerprints) and now use Face ID (facial recognition) to unlock or decrypt a device.² Biometrics are fast replacing traditional alphanumeric passcodes where a user enters a sequence of letters, numbers, and/or symbols to unlock devices. Here, the Search Warrant seeks to compel anyone present during the execution of the search warrant to use their biometrics to unlock any electronic device on the Premises, including the use of fingerprints, facial recognition, and iris scans.

To address the nascent question concerning the constitutionality of compelled biometrics, the Court appointed attorney Jarrod Beck as amicus curiae.³ [DE 1]. Both parties briefed the matter, and the Court heard oral arguments on June 29, 2020. [DE 4].

II. ANALYSIS

A. FOURTH AMENDMENT

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. Generally, Fourth Amendment protections extend to areas where a person has a "reasonable expectation of privacy." Katz v. United States , 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). There is no dispute here that the United States must obtain a warrant to search the electronic devices at issue. Moreover, and as stated above, the Court has found probable cause to permit the United States to seize and search relevant electronic devices. The only remaining question, then, is what, if anything, is required of the United States under the Fourth Amendment to compel any individual, whether a target or bystander , to provide biometrics incident to the execution of a search warrant for electronic devices.

The law in this area is emerging and entirely unsettled. The United States and Amicus provided drastically different answers in their briefs. The government believes that once probable cause has been established for the seizure and search all devices at a given location, law enforcement may compel biometrics from any individual present at the scene. [DE 2, Page ID# 12]. The United States argues that because the judicial officer will have already found probable cause to conduct the search of those devices, no further inquiry is needed under the Fourth Amendment. Amicus, unsurprisingly, argues that to compel a biometric scan, the United States must provide additional probable cause to believe that the electronic devices in question belong to the individual. [DE 3, Page ID# 29]. Because no binding authority addresses this question, the Court looks to analogous case law and persuasive precedents to reach its conclusion.

The United States and Amicus agree that if no security measures prevent access or officers find the electronic devices "unlocked," law enforcement is permitted to search the electronic devices in accordance with the Search Warrant. Moreover, if a device is locked, the United States is free to review any unencrypted information⁴ or wholly circumvent passcode encryption, whether alphanumeric or biometric, through brute force efforts or alternative technology, such as Grayshift's GrayKey. Such searches are permitted because the undersigned has already determined that probable cause justifies search and seizure of all electronic devices at the Premises, and the Search Warrant sets forth appropriate limitations on the scope of the search.

Therefore, the search of the electronic devices is unquestionably compliant with the Fourth Amendment regardless of whether law enforcement accesses their content because they are unsecured or through technical force. But where law enforcement seeks to compel individuals at the scene of the Search Warrant execution to provide their biometrics, the search at issue is no longer one of the Premises or electronic devices authorized in the Search Warrant. Compelled biometrics of "any individual at the [Premises]" as requested in this Search Warrant is beyond the scope of seizing and searching electronic devices, but is more akin to fingerprinting individuals.⁵ Consequently, the Court poses two questions. First, is capturing the physical characteristics of an individual, such as a fingerprint, a search? If so, then second, what standard or burden must the government meet to capture such physical attributes of an individual incident to a search warrant?

Fortunately, as to the first question, courts have provided a clear answer. The Supreme Court has unquestionably held that the taking of a fingerprint is a search. Hayes v. Florida , 470 U.S. 811, 816–17, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). See also Matter of Search of [Redacted] Washington, D.C. , 317 F. Supp. 3d 523, 531 (D.D.C. 2018) ; United States v. Askew , 529 F.3d 1119, 1158 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) ("The Court's [...] decision in Hayes plainly considered fingerprinting a search."). In Hayes , the Supreme Court held that fingerprints were properly suppressed when the defendant was arrested without probable cause. Hayes v. Florida , 470 U.S. 811, 816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) ; also Davis v. Mississippi , 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (holding that fingerprints obtained from a defendant as part of an investigatory detention without probable cause should have been excluded).

Having established that the capturing of physical attributes of a person is a search, the Court next turns to determining the applicable standard. Again, utilizing analogous cases, the courts have provided a clear answer. Hayes held "that a brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable cause, is [not] necessarily impermissible under the Fourth Amendment." Id. (emphasis added). "[T]here is a diminished interest in ‘purely external searches such as fingerprinting,’ based on their less intrusive nature." Matter of Search of [Redacted] Washington, D.C. , 317 F. Supp. 3d at 531 (quoting United States v. Kriesel , 508 F.3d 941, 948 (9th Cir. 2007) and citing numerous other authorities in support). Hayes set forth three requirements for obtaining fingerprints from an individual at the scene of a search warrant execution: (1) "there is reasonable suspicion that the suspect has committed a criminal act"; (2) "there is a reasonable basis for believing that fingerprinting will establish or negate the suspect's connection with that crime"; and (3) the procedure must be "carried out with dispatch." Hayes, supra at 817, 105 S.Ct. 1643.

The D.C. District Court is the only court that has thoroughly examined the implications of the Fourth Amendment as applied to compelled biometrics. Matter of Search of [Redacted] Washington, D.C. , 317 F. Supp. 3d at 532-33. Upon independent review, this Court reaches the same conclusion as the D.C. District Court: the reasonable suspicion standard set forth in Hayes is the most apt Fourth Amendment precedent as applied to biometrics. The D.C. District Court reframed and restated the Hayes requirements in a manner more appropriately applied to electronic devices:

Using Hayes as its guide, the Court thus finds that, when attempting to unlock a telephone, computer or other electronic device during the execution of a search warrant that authorizes a search of the device, the government may compel the use of an individual's biometric features, if (1) the procedure is carried out with dispatch and in the immediate vicinity of the premises to be searched, and

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